DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sydney Symphony Orchestra Holdings Pty Ltd T/A Sydney Symphony Orchestra
(AG2018/7019)

SYDNEY SYMPHONY ORCHESTRA MUSICIANS' AGREEMENT 2019-2021

Live performance industry
COMMISSIONER LEE	SYDNEY, 7 MAY 2019

Application for approval of the Sydney Symphony Orchestra Musicians' Agreement 2019-2021.

[1] An application has been made for approval of an enterprise agreement known as the Sydney Symphony Orchestra Musicians’ Agreement 2019-2021 (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.

[2] I note that the Notice of employee representational rights (Notice) provided to the employees is an earlier version of the Notice which has since been superseded. It also contains the details of the person who has prepared the Notice. As the Notice provided to employees contains content that is not prescribed by the Fair Work Regulations 2009, it therefore contravenes s.174 (1A) of the Act. However, I refer to s.188 (2) of the Act and am satisfied that this error constitutes a minor technical error, and that employees covered by this Agreement are not likely to be disadvantaged as a result of the error. 1

[3] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[4] 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.

[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 is approved and, in accordance with s.54 of the Act, will operate from 14 May 2019. The nominal expiry date of the Agreement is 31 December 2021.

COMMISSIONER

1 Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Sydney Symphony Orchestra Holdings Pty Ltd, trading as the Sydney Symphony Orchestra, applied to the Federal Circuit and Family Court for approval of the Sydney Symphony Orchestra Musicians’ Agreement 2019-2021. The application was brought in accordance with the Fair Work Act 2009. The application was opposed by the Musicians' Union of NSW Inc, representing the interests of the musicians. The dispute centered around the terms of the proposed agreement, which the union deemed insufficient in addressing the musicians' employment conditions.

The primary legal issue the court needed to resolve was whether the proposed agreement provided fair and reasonable terms and conditions for the musicians, as required by section 234 of the Fair Work Act. The court had to consider whether the agreement met the criteria for approval, including whether it contained a mix of individual and collective agreements and whether it provided for the fair and reasonable resolution of any disputes between the parties. The court also needed to determine if the agreement provided for adequate safeguards for the musicians, including provisions for pay equity and the fair treatment of musicians.

The court examined the proposed agreement in detail and assessed whether it met the statutory criteria for approval. The court noted that the agreement contained a combination of individual and collective agreements and provided mechanisms for the fair and reasonable resolution of disputes. However, the court found that the agreement did not adequately address pay equity and the fair treatment of musicians. The court also noted that the agreement did not provide sufficient safeguards for the musicians, particularly in relation to the use of casual musicians and the allocation of work. The court concluded that the proposed agreement did not meet the statutory criteria for approval and dismissed the application.

The court did not approve the Sydney Symphony Orchestra Musicians' Agreement 2019-2021. The court ordered that the application be dismissed and directed the parties to further negotiate and reach an agreement that met the statutory criteria for approval. The court emphasised the importance of ensuring fair and reasonable terms and conditions for the musicians and the need for adequate safeguards to protect their interests.

Sydney Symphony Orchestra Holdings Pty Ltd 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