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

[2022] FWCA 3310

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

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

(AG2022/3594)

Sydney Symphony Orchestra Musicians’ Agreement 2022-2023

Live performance industry
COMMISSIONER LEE	MELBOURNE, 26 SEPTEMBER 2022

Application for approval of the Sydney Symphony Orchestra Musicians’ Agreement 2022-2023

An application has been made for approval of an enterprise agreement known as the Sydney Symphony Orchestra Musicians’ Agreement 2022-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sydney Symphony Orchestra Holdings Pty Ltd T/A Sydney Symphony Orchestra. The Agreement is a single enterprise agreement.

The Employer 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. The undertakings are taken to be a term of the agreement.

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.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

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.

I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):
· Clause J1 – Annual leave.

However, noting the undertakings provided by the employer, 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 3 October 2022. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved Sydney Symphony Orchestra Holdings Pty Ltd, trading as the Sydney Symphony Orchestra, which sought approval of the Sydney Symphony Orchestra Musicians’ Agreement 2022-2023. The application was brought before the Fair Work Commission, which was tasked with determining whether the proposed agreement met the legal requirements under the Fair Work Act 2009. The dispute centred around whether the agreement provided fair and reasonable terms for the musicians, and whether it was appropriately negotiated and presented in line with statutory obligations.

The legal issues before the Commission included whether the agreement was genuinely negotiated, if it contained terms that were fair and reasonable, and whether it complied with the requirements for good faith bargaining. Additionally, the Commission had to assess if the agreement provided adequate protections for the musicians and if it complied with the provisions of the Fair Work Act regarding the content and negotiation of enterprise agreements.

In delivering its decision, the Commission examined the evidence provided by both parties and assessed the terms of the agreement. The Commission concluded that the agreement was genuinely negotiated in good faith and that it contained terms that were fair and reasonable. The Commission found that the agreement met the necessary statutory requirements and provided adequate protections for the musicians. The Commission was satisfied that all obligations under the Fair Work Act had been met, and therefore approved the application for the Sydney Symphony Orchestra Musicians’ Agreement 2022-2023.

The Fair Work Commission approved the Sydney Symphony Orchestra Musicians’ Agreement 2022-2023, determining that it complied with all legal requirements and was fair and reasonable. The Commission’s decision ensures that the agreement will now be in effect, providing the framework for the employment conditions of the musicians for the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established