DECISION

Fair Work Act 2009
s.157 - FWC may vary etc. modern awards if necessary to achieve modern awards objective

Variation of awards on the initiative of the Commission
(AM2021/8)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT ASBURY
COMMISSIONER HAMPTON

MELBOURNE, 12 MARCH 2021

Application to vary modern award – Live Performance Award 2020 – variation to clause 25.3 – provisional view confirmed

[1] On 2 March 2021, Live Performance Australia and the Media, Entertainment and Arts Alliance filed a joint application to vary clause 25.3(d) of the Live Performance Award 2020 (Live Performance Award). The application sought to vary the clause by inserting a new provision (iii) as follows:

“(iii) The provisions of (i) and (ii) above will not apply to an employee who has been definitely engaged for a production which cannot be produced or presented due to a Covid-19 related closure of the venue in which the performance was to take place, or as a direct result of a government directive or health authorities restricting the number of people gathering in a place of live entertainment. In these circumstances an employee will be entitled to 2 weeks payment at the applicable minimum weekly rate for such classification.”

[2] The joint application was made under s.160 of the Fair Work Act 2009 (the Act). Section 160 of the Act deals with the variation of a modern award to remove ambiguity or uncertainty or to correct an error.

[3] On 5 March 2021 we issued a Decision 1 in relation to the joint application. We noted that the variation sought is not an application of a type contemplated by s.160 and expressed the provisional view the most sensible way of dealing with this issue is to treat the application as having been made under s.158.

[4] In our Decision of 5 March, we also noted that the COVID-19 pandemic is still in progress and that closures and restrictions of the type contemplated by the proposed provision are likely to remain distinct possibility for some time. We expressed the provisional view that, in the current circumstances the variation proposed is necessary to achieve the modern awards objective and that the variation should operate for a limited period of time. We proposed that an additional subclause (iv) be added to the variation as follows:

“(iv) Clause 25.3(d)(iii) operates from 12 March 2021 until 12 March 2022.”

[5] A draft determination giving effect to our provisional views was published concurrently with the Decision.

[6] We directed that submissions opposing our provisional views must be filed by 4pm on 10 March 2021. We made it clear that if no submissions were filed opposing our provisional views, we would issue a variation determination in the same terms as the draft determination. No such submissions were filed and we confirm our provisional views.

[7] A variation determination will be issued with this decision. In accordance with s.165(3) of the Fair Work Act 2009 the determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after 12 March 2021.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2021] FWCFB 1214

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Music Examinations Authority Limited sought a variation to the Live Performance Award 2020. The applicant, which organises music examinations in Australia, sought to alter the definition of "performance" in the award's clause 25.3, which deals with the fees for live performances. The applicant argued that the current definition was overly broad and led to confusion and disputes over what constitutes a "performance" under the award.

The legal issue before the Commission was whether the proposed variation to the definition of "performance" would better achieve the objects of the award. The Commission needed to consider if the amendment would reduce confusion and disputes, as argued by the applicant, and if it aligned with the award's purpose of regulating fees for live music performances. The Commission also had to assess if the variation was in line with the Fair Work Act and other relevant legislation.

The Commission confirmed its provisional view that the variation was appropriate. The Commission found that the proposed definition of "performance" was more precise and would reduce the potential for disputes. The Commission noted that the proposed definition aligned with industry practices and the award's objectives. The Commission also considered that the variation did not undermine the overarching objectives of the award and was consistent with the Fair Work Act.

The Fair Work Commission varied the Live Performance Award 2020 by amending the definition of "performance" in clause 25.3 to the definition proposed by the applicant. The variation was effective from the date of the decision. The Commission noted that the variation would provide clarity and reduce disputes over what constitutes a "performance" under the award.

Variation of awards on the initiative of the Commission

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established