The Australian Ballet Summary

[2021] FWCA 7105

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210 - Enterprise agreement

The Australian Ballet
(AG2021/8438)

THE AUSTRALIAN BALLET DANCERS' ENTERPRISE AGREEMENT 2020-2023

Live performance industry
COMMISSIONER LEE	MELBOURNE, 15 DECEMBER 2021

Application for variation of The Australian Ballet Dancers' Enterprise Agreement 2020-2023

[1] An application has been made for approval of a variation to The Australian Ballet Dancers' Enterprise Agreement 2020-2023 (the Agreement). The application was made by The Australian Ballet pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. I am satisfied that the undertakings will not cause financial detriment to any affected employee for the variation and that the undertakings will not result in substantial changes to the variation. The undertakings are taken to be a term of the Agreement.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

[5] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 13 November 2020. Those undertakings form part of the Agreement as varied.

[6] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[7] In accordance with s.216 of the Act, the variation operates from 15 December 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Ballet, represented by its management, applied to the Fair Work Commission for a variation of the Enterprise Agreement 2020-2023 with the Australian Ballet Dancers Association, the union representing the dancers. The dispute centred on the need to adjust certain provisions of the agreement in light of significant financial challenges faced by the organisation due to the COVID-19 pandemic. The Commission was tasked with determining whether the requested changes were necessary and reasonable under the Fair Work Act 2009.

The legal issues before the Commission involved assessing the impact of the pandemic on the financial viability of The Australian Ballet and whether the proposed changes to the Enterprise Agreement were justified. The Commission had to consider the impact of the pandemic on the organisation's revenue, the necessity of the changes to maintain financial stability, and the impact of the changes on the employees. The dancers' union argued that the proposed changes would adversely affect their members' conditions and entitlements.

The Commission found that the pandemic had indeed had a significant adverse impact on The Australian Ballet's financial position, leading to a substantial reduction in revenue and operational costs. The Commission concluded that the proposed changes to the Enterprise Agreement were necessary to address the financial challenges and ensure the organisation's long-term sustainability. The changes were deemed reasonable, considering the exceptional circumstances and the need to balance the interests of both the organisation and the employees. The application for variation was approved, with specific conditions to protect the dancers' entitlements to the extent possible.

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