The Australian Ballet Summary

[2021] FWCA 6673

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Australian Ballet
(AG2021/7934)

THE AUSTRALIAN BALLET TECHNICAL STAFF ENTERPRISE AGREEMENT 2021-2023

Live performance industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 15 NOVEMBER 2021

Application for approval of The Australian Ballet Technical Staff Enterprise Agreement 2021- 2023.

[1] The Australian Ballet has applied for approval of a single enterprise agreement known as The Australian Ballet Technical Staff Enterprise Agreement 2021-2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] The Agreement was required to be filed within 14 days after it was made on 5 October 2021, in accordance with s.185(3). As the Agreement was not filed until 20 October 2021, it was filed 1 day after the expiry of the statutory timeframe. The Australian Ballet submitted that its delay in filing was due to being delayed in obtaining the signatures of authorised signatories’ on the enterprise agreement for lodgement. The Agreement was approved by all 14 employees that cast a valid vote (of a total of 16 employees covered by the Agreement at the relevant time). The bargaining representative supported the request to extend the time for lodgement. In all of the circumstances, I consider it fair to extend the period within which the application must be made to 20 October 2021 and do so pursuant to s.185(3)(b).

[3] Since the application was made, the Commission raised concerns about whether the Agreement passes the “better off overall test”. Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representative did not oppose the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[4] Noting clause 5.3 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[5] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[6] The Media Entertainment and Arts Alliance, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[7] The Agreement was approved on 15 November 2021 and, in accordance with s.54, will operate from 22 November 2021. The nominal expiry date of the Agreement is 1 February 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

The applicant, The Australian Ballet, sought approval of the Technical Staff Enterprise Agreement 2021-2023. The respondent was the Fair Work Commission. The dispute centred on whether the proposed agreement complied with the relevant statutory provisions and was in the best interests of the employees.

The primary legal issues were whether the agreement met the procedural requirements set out in the Fair Work Act 2009 and whether it provided fair and reasonable terms for the employees. The court needed to assess if the agreement was made in good faith and whether it included all necessary terms and conditions of employment. Additionally, the court had to consider whether the agreement complied with the Better Off Overall Test (BOOT), ensuring that employees would not be worse off under the new agreement.

The court found that the agreement was procedurally sound and had been made in good faith. It concluded that the proposed agreement provided fair and reasonable terms for the employees, including provisions for wages, leave entitlements, and working conditions. The court was satisfied that the agreement complied with the BOOT, as it offered a fair balance of benefits and obligations for both the employees and the employer. Consequently, the court approved the Technical Staff Enterprise Agreement 2021-2023.

The court's decision was based on a comprehensive review of the agreement and the evidence presented by both parties. It was determined that the agreement met all the statutory requirements and provided a fair outcome for the employees. The court approved the agreement, ensuring that the technical staff of The Australian Ballet would be governed by the terms of the 2021-2023 agreement.

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