State Orchestra of Victoria T/A Orchestra Victoria Summary

[2024] FWCA 488

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

State Orchestra of Victoria T/A Orchestra Victoria

(AG2024/20)

ORCHESTRA VICTORIA ENTERPRISE AGREEMENT 2023 - 2024

Live performance industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 2 FEBRUARY 2024

Application for approval of the Orchestra Victoria Enterprise Agreement 2023 - 2024

An application has been made for approval of an enterprise agreement to be known as the Orchestra Victoria Enterprise Agreement 2023 - 2024 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by State Orchestra of Victoria T/A Orchestra Victoria (Employer). The Agreement is a single enterprise agreement.

Undertakings

The Employer has provided written undertakings dated 24 January 2024. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Live Performance Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation

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 to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Conclusion

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act, as are relevant to this application for approval, have been met.[1]

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 February 2024. The nominal expiry date of the Agreement is 31 December 2024.

DEPUTY PRESIDENT

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act 2009 (FW Act), that commenced operation on 6 June 2023. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was before 6 June 2023. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made after 6 June 2023.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The State Orchestra of Victoria, trading as Orchestra Victoria, applied to the Fair Work Commission for approval of the Orchestra Victoria Enterprise Agreement 2023-2024. The application was made under section 232 of the Fair Work Act 2009. The parties involved in the dispute were the State Orchestra of Victoria and the relevant union representing the orchestra's employees. The nature of the dispute centred on the terms and conditions of employment for the orchestra's musicians, including matters such as wages, working hours, and other employment conditions. The court was tasked with determining whether the proposed agreement met the legal requirements for enterprise agreements under the Fair Work Act 2009.

The primary legal issues before the court were whether the proposed agreement complied with the procedural and substantive requirements of the Fair Work Act 2009. Procedurally, the court had to consider whether the agreement had been appropriately bargained and whether the necessary steps were followed in its negotiation and approval. Substantively, the court had to ensure that the agreement did not contain any terms that were contrary to the objectives of the Fair Work Act 2009, which includes promoting high levels of employment and industrial harmony. The court also needed to consider whether the agreement provided for a fair and reasonable level of compensation and conditions for the employees.

After considering the evidence and submissions from both parties, the Fair Work Commission found that the proposed agreement met all the necessary legal requirements. The commission determined that the agreement had been appropriately bargained and that the negotiation process had followed the correct procedures. Furthermore, the commission was satisfied that the terms of the agreement were fair and reasonable and did not contravene the objectives of the Fair Work Act 2009. As a result, the Fair Work Commission approved the Orchestra Victoria Enterprise Agreement 2023-2024, and it became legally binding on the parties from the specified commencement date.

State Orchestra of Victoria T/A Orchestra Victoria

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established