DECISION

Fair Work Act 2009
s.210—Enterprise agreement

The Australian Ballet
(AG2021/5232)

THE AUSTRALIAN BALLET DANCERS’ ENTERPRISE AGREEMENT 2020-2023

Live performance industry
COMMISSIONER LEE	MELBOURNE, 15 JUNE 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 variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Ballet sought to have the enterprise agreement it had with its dancers varied, and the Fair Work Commission (FWC) was asked to make an order to this effect. The dancers argued against the proposed variation, which included changes to their hours and pay. The FWC was tasked with deciding whether the application met the criteria for variation set out in the Fair Work Act 2009. The dancers' main argument was that the proposed changes were unreasonable and did not meet the 'better off overall test', meaning that the dancers would not be better off overall with the changes.

The FWC considered the application and the evidence provided by both parties. It examined the proposed changes, the current terms of the enterprise agreement, and the financial implications of the changes for the dancers. The FWC also considered the 'better off overall test', which requires that the overall financial position of the employees must be improved by the changes. The FWC found that the proposed changes were reasonable and met the criteria for variation under the Act. It found that the dancers would be better off overall with the changes, as they would receive additional benefits that outweighed any negative impacts of the changes.

As a result of this decision, the FWC made an order varying the enterprise agreement as requested by The Australian Ballet. The dancers' application for the variation was dismissed. The FWC found that the proposed changes were reasonable and met the criteria for variation under the Act, and that the dancers would be better off overall with the changes. This decision sets an important precedent for future enterprise agreement variations in the performing arts industry, and highlights the importance of the 'better off overall test' in determining whether a variation is reasonable.

The Australian Ballet

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established