Variation on the Commission’s own initiative – Live Performance Award 2020
[2025] FWCFB 112
•5 JUNE 2025
| [2025] FWCFB 112 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.157—FWC may vary etc. modern awards if necessary to achieve modern awards objective
s.160—Variation of modern award to remove ambiguity or uncertainty or correct error
Variation on the Commission’s own initiative – Live Performance Award 2020
(AM2024/38)
| Live performance industry | |
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 5 JUNE 2025 |
Variation on the Commission’s own initiative – outcome of the Modern Awards Review 2023-24 – Live Performance Award 2020.
On 3 March 2025, the Full Bench in this matter issued a decision[1] in which interested parties were given the opportunity to make technical comments with respect to the draft determination published with that decision,[2] and make responsive submissions in relation to whether the Commission should make limited variations to the Live Performance Award 2020 (Award)[3] pursuant to s 157 of the Fair Work Act 2009 (Cth) (Act).[4]
No comments of a technical nature relating to the draft determination were received. Nor did we receive comments as to the operative date of the variations. Accordingly, we confirm our view as reflected in the draft determination published with that decision. The variations will operate from the day that the determination is made.
As to the potential variations to the Award pursuant to s 157 of the Act, Live Performance Australia (LPA) filed a responsive submission[5] which was supported by Theatre Network Australia (TNA).[6] LPA contends that to achieve the modern awards objective, the Award should be varied to:
(1)replace the term ‘Deputy Ballet Master/Mistress’; and
(2)insert the indicative role of ‘Chaperone’ at Level 5 of the classification structure in the Award.
In support of these variations, LPA submits that the term ‘Deputy Ballet Master/Mistress’ currently used in clause 32.2(i) and Schedule B.1.1 of the Award should be replaced by the term ‘Deputy Rehearsal Director/Rehearsal Director.’ It relies upon two witness statements:
Dilshani Weerasinghe (Executive Director, Queensland Ballet) deposes that staff employed as Ballet Master/Ballet Mistress prefer the role title ‘Rehearsal Director’ including because the current role terminology is considered outdated and gendered. Accordingly, Queensland Ballet is reviewing the relevant terminology in its enterprise agreement.
Kristy Louise Ayre (Executive Director and co-CEO, Chunky Move) deposes that Chunky Move uses the term ‘Rehearsal Director’ rather than ‘Deputy Ballet Master or Mistress’ because the current term is outdated, gendered and not commonly used by contemporary dance companies.
LPA also refers to:
the West Australian Ballet Dancers’ Enterprise Agreement 2024-2025,[7] which utilises the term ‘Deputy Rehearsal Director/Rehearsal Director’ in place of Ballet Master/Mistress’; and
the Australian Ballet Dancers’ Enterprise Agreement 2023-2026[8] which does not include the term ‘Deputy Ballet Master/Mistress’ at all.
LPA submits that the evidence before the Commission supports varying the Award in the manner sought. It says the variation is necessary to achieve the modern awards objective including the need to ensure a simple, easy to understand, stable and sustainable modern awards system.
LPA further contends that it is necessary to include the indicative role of ‘Chaperone’ in the Award, which it says we correctly described in the following way in our 3 March 2025 decision:[9]
The role of a ‘Chaperone’ is described as performing the function of supervising child performers with the authorisation of the child’s parents or guardians and otherwise in accordance with appropriate regulations, codes and guidelines concerning the employment of children in entertainment industries.
LPA further submits that the responsibilities performed, and duties typically undertaken by a Chaperone are as follows:
A chaperone is generally employed for the direct care and supervision of child performers.
A chaperone is responsible generally for one or two child performers.
They are responsible from the beginning to the end of a show call. A chaperone would stay with the child performer for the duration of the call.
Their duties may include:(a) meet and collect the child performer from their parents/guardian at the stage door and sign the child in to the theatre;
(b) together with the child performer, check in with the adult cast;
(c) take the child performer to their dressing room and ensure the child puts on their costume, has their make-up and hair done and is fitted with a microphone if required;
(d) stay in the dressing room with the child performer and engage with them. For example. they may play games or do craft activities;
(e) when the child performer is required on stage the chaperone takes the child to the stage, and the appropriate crew member may then assist the child from that point. The chaperone must continue to observe the child from the wings of the stage and be in the correct position to collect the child from the point they exit the stage. At this point, they take the child performer back to their dressing room.
The chaperone is also responsible for the child’s welfare at work.
On larger productions, where many child performers are employed, there may be a team of chaperones. In such cases a head chaperone may also be engaged. A head chaperone would have responsibility for the chaperone team.
LPA submits that the breadth of the Award classification structure makes it difficult for employers to appropriately classify the role of Chaperone. It contends that the role may be mischaracterised as childcare, without recognising the knowledge and understanding of theatre craft and terminology that the incumbent brings to the role. LPA submits that a Chaperone may be required to perform duties similar to those of an assistant stage manager in order to ensure children are adequately placed to enter and exit stage on cue. It is argued that Chaperones may be under-classified in the Award or incorrectly classified under the Children’s Services Award 2010. Accordingly, LPA submits that inserting ‘Chaperone’ as an indicative role at Level 5 of the Award would ensure a simple, easy to understand modern awards system and contribute to the elimination of gender-based undervaluation of work, in line with the modern awards objective. LPA notes that it reached a consent position with the Media, Entertainment and Arts Alliance (MEAA) as to the inclusion of the role of ‘Chaperone’ as an indicative position at Level 5 of the Award in the context of consultations for the Modern Award Review 2023-24.
Consideration
Section 157 of the Act provides that the Commission may make a determination varying a modern award (other than to vary modern award minimum wages) if it is satisfied that making the variation is necessary to achieve the modern awards objective. The modern awards objective is defined in s 134(1) of the Act. It provides that the Commission must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account the considerations listed at
s 134(1)(a)-(h).
The modern awards objective is broadly expressed. No primacy is attached to any of the considerations in s 134(1) and it is recognised that not all the listed considerations will be relevant in the context of a particular proposal. It is not necessary to make a finding that the award fails to satisfy one or more of the s 134 considerations as a prerequisite to the variation of the modern award. Rather, in giving effect to the modern awards objective, the Commission is performing an evaluative function taking into account the matters in s 134(1)(a)-(h) and assessing the qualities of the safety net by reference to the statutory criteria of fairness and relevance.[10]
Section 138 of the Act emphasises the importance of the modern awards objective:
A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.
The Full Bench in Variation of awards on the initiative of the Commission[11] determined that what is necessary to achieve the modern awards objective in a particular case is a value judgement, taking into account the s 134 considerations to the extent that they are relevant, the particular circumstances, the terms of any proposed variation, and the submissions and evidence.
To these matters we add that the Full Federal Court in Shop, Distributive and Allied Employees’ Association v Australian Industry Group[12] stated that many, perhaps all, of the matters in s 134(1) permit – indeed require – consideration of contemporary circumstances; the range of “needs” and “impacts” these matters identify necessarily include needs and impacts assessed by reference to contemporary circumstances. It follows that the perspectives of employers and employees, and the contemporary circumstances in which the Award operates, are circumstances within a permissible conception of a fair and relevant safety net, taking into account the s 134(1) matters.[13]
Section 134(1)(g) identifies the need to ensure a simple, easy to understand modern award system. One way in which we consider the Commission can support this objective is by using plain language drafting in modern awards and, relevantly, gender-neutral language. We accept the uncontested evidence before the Commission that the reference to a ballet ‘Master/Mistress’ is gendered, out of date and not in common use by contemporary dance companies. It is proposed that the term be replaced with the concept of a ‘Rehearsal Director,’ which is gender neutral and reflects the prevailing language used in the sector. We regard the perspectives advanced by LPA and its witnesses, and the contemporary circumstances in which the Award operates, as relevant considerations in our assessment of s 134(1)(g). These matters weigh in favour of making the variation sought to replace the term ‘Deputy Ballet Master/Mistress’ in the Award.
We also consider it to be relevant in our consideration of s 134(1)(g) of the Act, that while the industrial parties utilising the Award consider it to be clear that the Award covers the role of Chaperone (subject to the character of the employer),[14] the moving parties hold concerns that the provisions of the Award itself do not make that position sufficiently clear for employers and employees at the workplace level. To this end, LPA submits that the inclusion of the role of Chaperone as an indicative position in the Award will assist to make the Award simple and easy to understand.
We consider, having regard to the responsibilities and typical duties outlined at paragraph [8] above, that a Chaperone in the live performance context provides an important role in safeguarding a child performer at work. It is not in dispute that the Chaperone ensures the child’s well-being and provides the child with appropriate supervision, both during and outside of performances. We are prepared to accept LPA’s uncontested submission, which is supported by MEAA and TNA, that the breadth of the Award classification structure has led to workplace difficulties in applying the Award to Chaperones. These matters weigh in favour of making the variation sought insert the role of Chaperone into the Award.
We do not regard the balance of the s 134(1) matters to be relevant to the variations proposed. Specifically, there is insufficient material before us demonstrating that the variation to insert the role of Chaperone in the Award would also contribute to the elimination of gender-based undervaluation of work (s 134(1)(ab)). On the material before us, there are no matters in s 134(1) that weigh against the making of the proposed variations.
No further submissions were received in respect of the insertion of the indicative role title of ‘Junior/Associate Arts Programmer’ into the Award. Accordingly, we do not consider that there is any material before us that provides a basis to vary the Award in that manner.
Next steps
It is our provisional view that the variations proposed to:
(a)replace the term ‘Deputy Ballet Master/Mistress’ with the term ‘Deputy Rehearsal Director/Rehearsal Director’; and
(b)insert the indicative position of ‘Chaperone’ in the classification structure in the Award,
are necessary to achieve the modern awards objective.
LPA, with the consent of MEAA and supported by TNA, advance the position that the indicative role of ‘Chaperone’ should be included in Level 5 of the Award. The joint proposal is said to follow a consultation process with LPA, MEAA and TNA members.[15] While no express objection has been advanced to the proposed variation pursuant to s 157 of the Act,[16] we acknowledge ABI/BNSW’s earlier stated view that it does not accept that all employees working in the role of Chaperone would necessarily fall within the same level of the classification structure in each workplace and that employers may be led into error if the proposed variation is made to include the indicative position at Level 5.
We are prepared to accept the consent position advanced by the moving parties that the indicative position of Chaperone should be included at Level 5 of the Award. The proposal is advanced as an agreed statement by peak bodies representing the sector. As described in paragraphs [7]-[9] of this decision, this consent position has been explained in detail, including by reference to the role and duties undertaken. We accept the considered and uncontested view that a Chaperone may be required to perform duties similar to those of an assistant stage manager, which is an indicative position aligned to Level 5 of the Award. To this end, Level 5 indicates that it applies to an employee holding a trade certificate in a relevant discipline, which we consider appropriately recognises that Chaperones should be suitably experienced and qualified to care for the safety and wellbeing of children. In these circumstances, we are not persuaded that the insertion of the position clearly labelled as ‘indicative’ at Level 5 is apt to lead to error, as cautioned by ABI/BNSW. Rather, we consider that its inclusion will provide guidance at a workplace level while prioritising a safe working environment for children. Accordingly, the consolidated draft determination referred to below inserts the indicative position of Chaperone into Level 5 in the classification structure in the Award.
A consolidated draft determination is published with this decision, which reflects:
(a)our confirmed view about the matters set out in our 3 March 2025 decision (see paragraph [2] of this decision); and
(b)our provisional views at [20] and [22] above. Any comments of a technical nature in relation to items 1, 9 and 10 in the consolidated draft determination dealing with our provisional views should be filed with the Commission by no later than 4:00 pm AEST Monday 23 June 2025.
In the absence of any submissions, we will make the variations in the terms of the consolidated draft determination. Noting s 165 of the Act, the determination will come into effect on the day it is made.
DEPUTY PRESIDENT
[1] [2025] FWCFB 48
[2] Ibid at [52]
[3] MA000081
[4] [2025] FWCFB 48 [53]
[5] Submission, Live Performance Australia (24 March 2025)
[6] Submission, Theatre Network Australia (27 March 2025)
[7] AE527810
[8] AE522931
[9] [2025] FWCFB 48 at [45]
[10] Variation of awards on the initiative of the Commission [2020] FWCFB 1837 at [113]-[115]
[11] Ibid at [117]
[12] [2017] FCAFC 161 at [51]; (2017) 253 FCR 368
[13] Ibid at [53]
[14] See [2025] FWCFB 48 at [17] and [20]
[15] See [2025] FWCFB 48 at [21]
[16] Earlier objections were advanced that the inclusion of the indicative role of ‘Chaperone’ did not meet the requirements of s 160 of the Act (see [2025] FWCFB 48 at [16]-[18])
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