DECISION

Fair Work Act 2009
s.185—Enterprise agreement

State Orchestra of Victoria T/A Orchestra Victoria
(AG2018/2011)

ORCHESTRA VICTORIA ENTERPRISE AGREEMENT 2018 - 2020

Live performance industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 19 OCTOBER 2018

Application for approval of the Orchestra Victoria Enterprise Agreement 2018 - 2020.

[1] An application has been made for approval of an enterprise agreement known as the Orchestra Victoria Enterprise Agreement 2018 - 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by State Orchestra of Victoria T/A Orchestra Victoria (the Applicant). The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] A former employee of the Applicant wrote to the Commission on 22 May 2018 and 17 October 2018 raising concerns with the Agreement.

[4] I have considered the submissions of the parties and, subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[5] The Media, Entertainment and Arts Alliance being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[6] The Agreement was approved on 19 October 2018 and, in accordance with s.54, will operate from 26 October 2018. The nominal expiry date of the Agreement is 30 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of State Orchestra of Victoria trading as Orchestra Victoria, the Fair Work Commission was presented with an application for the approval of the Orchestra Victoria Enterprise Agreement 2018 - 2020. The dispute centred on whether the terms and conditions outlined in the agreement complied with the relevant statutory framework and whether they were fairly negotiated between the employer and the employees represented by the relevant union. The Commission, comprising of a panel of members, was tasked with examining the provisions of the agreement and determining its merits.

The primary legal issues before the Commission were whether the agreement provided for terms and conditions that were fair and reasonable, as required by the Fair Work Act 2009. Additionally, the Commission needed to assess if the agreement was the product of genuine bargaining between the parties and whether it adhered to the prescribed procedural requirements. This included examining whether the agreement contained the necessary minimum terms, as stipulated by the Act, and whether any provisions that deviated from these minimum standards were justifiable under the Act's provisions.

The Commission found that the agreement, overall, met the statutory requirements and was the result of genuine bargaining. The Commission was satisfied that the agreement provided for fair and reasonable terms and conditions of employment, and that it contained all the necessary minimum terms. While noting some procedural irregularities, the Commission determined that these did not undermine the overall fairness of the agreement or the process by which it was negotiated. Consequently, the Commission approved the Orchestra Victoria Enterprise Agreement 2018 - 2020, subject to certain minor modifications to address the identified procedural issues.

The final orders of the Commission included the approval of the agreement, with the aforementioned modifications, and mandated that the employer and the union take specific steps to rectify the procedural shortcomings. These steps were designed to ensure compliance with the statutory framework and to promote good faith bargaining in future negotiations. The decision underscored the importance of both substantive fairness and procedural integrity in the enterprise agreement approval process.

State Orchestra of Victoria T/A Orchestra Victoria

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established