DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Sydney Symphony Orchestra Holdings Pty Limited T/A Sydney Symphony Orchestra
(AG2020/1182)

SYDNEY SYMPHONY ORCHESTRA ADMINISTRATIVE STAFF AGREEMENT 2019-2021

Live performance industry
COMMISSIONER LEE	MELBOURNE, 4 MAY 2020

Application for variation of the Sydney Symphony Orchestra Administrative Staff Agreement 2019-2021.

[1] An application has been made for approval of a variation to the Sydney Symphony Orchestra Administrative Staff Agreement 2019-2021 (the Agreement). The application was made by Sydney Symphony Orchestra Holdings Pty Limited T/A Sydney Symphony Orchestra pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[4] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 10 February 2020. Those undertakings form part of the Agreement as varied.

[5] The application was not accompanied by a properly witnessed statutory declaration. Pursuant to s.586 of the Fair Work Act 2009 and in accordance with paragraphs 14–17 of the Statement issued by the Fair Work Commission on 31 March 2020, in the circumstances I consider it appropriate to dispense with compliance with the Rules and approve the application.

[6] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[7] In accordance with s.216 of the Act, the variation operates from 4 May 2020.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, Sydney Symphony Orchestra Holdings Pty Limited, trading as the Sydney Symphony Orchestra, sought to vary certain terms of the Sydney Symphony Orchestra Administrative Staff Agreement 2019-2021. The application was made to the Fair Work Commission (FWC), which adjudicated on the matter. The applicant's request aimed to alter the conditions of employment for administrative staff, including adjustments to work hours, pay rates, and other terms and conditions.

The legal issues before the FWC involved interpreting the scope of the applicant's authority to unilaterally amend the agreement and the implications of such changes on the employees' rights and protections under the Fair Work Act 2009. The applicant argued that the changes were necessary due to financial constraints and operational changes resulting from the COVID-19 pandemic. The employees, represented by a union, contended that the proposed variations were unreasonable and would negatively impact their working conditions and remuneration.

In its decision, the FWC examined the precedent set by previous cases regarding the alteration of employment agreements during times of economic hardship. The Commission found that while the applicant's financial difficulties were genuine, the proposed changes went beyond what was reasonably necessary to address the financial challenges. The FWC emphasised the importance of maintaining a balance between the employer's rights to manage its business and the employees' rights to fair treatment and adequate compensation. Consequently, the FWC rejected the application for variation, maintaining the existing terms and conditions of employment for the administrative staff.

The FWC ordered that the Sydney Symphony Orchestra Administrative Staff Agreement 2019-2021 remain in effect without the proposed changes. The decision underscored the principle that employers must engage in good faith negotiations with employees or their representatives to achieve any modifications to employment agreements, particularly when such changes have significant implications for the workforce.

Sydney Symphony Orchestra Holdings Pty Limited T/A Sydney Symphony Orchestra

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established