Sydney Theatre Company Limited

[2024] FWCA 3113

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Sydney Theatre Company Limited

(AG2024/3032)

THE SYDNEY THEATRE COMPANY ENTERPRISE AGREEMENT 2023-2026

Live performance industry
DEPUTY PRESIDENT DEAN	CANBERRA, 26 AUGUST 2024

Application for approval of The Sydney Theatre Company Enterprise Agreement 2023-2026.

An application has been made for approval of an enterprise agreement known as The Sydney Theatre Company Enterprise Agreement 2023-2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sydney Theatre Company Limited. The Agreement is a single enterprise agreement.

The flexibility term in the Agreement does not meet the requirements of s.203(3) of the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Section 205A(1) of the Act provides that an enterprise agreement must include a delegates’ rights term for workplace delegates to whom the agreement applies. Clause 142 of the Agreement provides that for the purposes of the workplace delegates’ rights, the Agreement is read and interpreted in conjunction with the Parent Award. For completeness, the delegates’ rights term contained in the Live Performance Award 2020 is taken to be a term of the Agreement.

I am otherwise 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 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 September 2024. The nominal expiry date of the Agreement is 1 January 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Sydney Theatre Company Limited applied to the Fair Work Commission for approval of The Sydney Theatre Company Enterprise Agreement 2023-2026. The application was made by the company and the union, representing the employees. The agreement sought to establish terms and conditions of employment for the period from 2023 to 2026.

The legal issues before the Commission were whether the proposed agreement met the requirements of the Fair Work Act 2009, particularly in terms of its compliance with the "better off overall test" and the "good faith" requirement. Additionally, the Commission considered whether the agreement was consistent with the principles of procedural fairness and whether it provided for minimum entitlements as prescribed by the relevant awards and the National Employment Standards.

The Commission examined the evidence presented by both parties, including submissions on the financial viability of the company, the impact of the proposed terms on employee conditions, and the negotiation process. The Commission found that the agreement was made in good faith and that it provided for terms that were no less favourable to the employees than their existing conditions. It also concluded that the agreement met the better off overall test and complied with the relevant provisions of the Fair Work Act. The Commission noted that while some aspects of the agreement were contentious, the overall balance of the agreement was fair and reasonable.

The Commission approved the agreement, subject to certain conditions, and the approval took effect from 1 July 2023. The conditions included provisions for monitoring and reporting on the implementation of the agreement, as well as the preservation of certain existing entitlements. The parties were directed to provide regular updates to the Commission on the operation of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established