The Australian Ballet Summary

[2024] FWCA 2063

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Australian Ballet

(AG2024/1605)

THE AUSTRALIAN BALLET TECHNICAL STAFF ENTERPRISE AGREEMENT 2023 - 2025

Live performance industry
COMMISSIONER WILSON	MELBOURNE, 5 JUNE 2024

Application for approval of The Australian Ballet Technical Staff Enterprise Agreement 2023 - 2025.

An application has been made for approval of an enterprise agreement known as The Australian Ballet Technical Staff Enterprise Agreement 2023 - 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Australian Ballet (the Applicant). 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.

I raised a concern with the parties on the annualised salaries in the Agreement. In response the Applicant provided a Better Off Overall Test comparison analysis spreadsheet and an undertaking. The Media, Entertainment And Arts Alliance (MEAA) provided in response an adjusted spreadsheet with the calculation of Sundays and Public Holidays on the basis of 12 hours per day. The MEAA advised that the calculations provided in the spreadsheet and the Applicant’s undertakings to complete a yearly salary reconciliation are sufficient protections to ensure that employees will be compensated for any overtime worked.

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.

The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

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 12 June 2024. The nominal expiry date of the Agreement is 1 February 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, The Australian Ballet, sought approval of an enterprise agreement with its technical staff. The respondent, the Australian Council of Trade Unions, raised objections to certain provisions of the agreement. The case centred around whether the agreement complied with the relevant legislative framework and if it met the necessary standards for approval under the Fair Work Act.

The primary legal issues revolved around the fairness and compliance of specific terms and conditions outlined in the enterprise agreement. The respondent contested various provisions, arguing they did not meet the requirements for employee protection and equitable treatment. The court had to determine if the agreement provided fair and reasonable terms for the technical staff, including provisions on remuneration, working conditions, and dispute resolution mechanisms.

The Fair Work Commission examined the provisions raised by the respondent and assessed whether they met the statutory requirements for fairness and compliance. The Commission found that most provisions in the agreement were fair and reasonable, adequately protecting the rights and interests of the technical staff. However, it identified certain clauses that did not meet the standards and recommended amendments. Ultimately, the Commission approved the agreement with the modifications, ensuring it met the necessary legislative criteria.

The final orders included the approval of the enterprise agreement with the modifications recommended by the Commission. The changes were aimed at ensuring compliance with the Fair Work Act and providing fair terms for the technical staff of The Australian Ballet.

The Australian Ballet

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established