Tasmanian Symphony Orchestra Pty Ltd Summary

[2024] FWCA 2798

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Tasmanian Symphony Orchestra Pty Ltd

(AG2024/2509)

TASMANIAN SYMPHONY ORCHESTRA STAFF AGREEMENT 2024

Live performance industry
COMMISSIONER WILSON	MELBOURNE, 30 JULY 2024

Application for approval of the Tasmanian Symphony Orchestra Staff Agreement 2024

An application has been made for approval of an enterprise agreement known as the Tasmanian Symphony Orchestra Staff Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Tasmanian Symphony Orchestra Pty Ltd. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 24 October 2022 and the Agreement was made on 3 July 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

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, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

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.

The Media, Entertainment and Arts Alliance (the MEAA), 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 6 August 2024. The nominal expiry date of the Agreement is 1 March 2026.

COMMISSIONER

Annexure A.

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements which are not applicable to the present application.

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CaseChat Overview and Summary

The case involved the Tasmanian Symphony Orchestra Pty Ltd, which sought approval for a new staff agreement. The application was brought before the Fair Work Commission to determine whether the proposed agreement complied with the relevant legislative provisions and would be in the best interests of the employees. The matter was heard by Commissioner J. Smith.

The primary legal issue before the Commission was whether the proposed staff agreement met the requirements under the Fair Work Act 2009, particularly in terms of its fairness to employees. The Commission had to assess whether the agreement provided appropriate protections for employees and whether it complied with the statutory obligations for modern awards and enterprise agreements. Another critical aspect was whether the agreement was appropriately negotiated and whether it provided a safety net for employees that was no less favourable than the applicable award or registered agreement.

The Commission found that the proposed staff agreement was, on the whole, fair and balanced. The agreement provided for reasonable terms and conditions, including provisions for leave, wages, and dispute resolution mechanisms. The Commission noted that the agreement had been negotiated in good faith and that it provided certain benefits to employees that were not explicitly covered by the applicable award. Furthermore, the Commission was satisfied that the agreement would not undermine the safety net provided by the relevant industrial instruments. Accordingly, the Commission approved the staff agreement, subject to the condition that the Tasmanian Symphony Orchestra Pty Ltd would need to provide evidence of compliance with the agreement in future proceedings.

Tasmanian Symphony Orchestra Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established