Variation on the Commission's own initiative - Live Performance Award 2020
[2025] FWCFB 48
•3 MARCH 2025
| [2025] FWCFB 48 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
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)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 3 MARCH 2025 |
Variation on the Commission’s own initiative – outcome of the Modern Awards Review 2023-24 – Live Performance Award 2020.
Following the Modern Awards Review 2023-24 (Review),[1] the Fair Work Commission (Commission) commenced a new matter on its own initiative to vary the Live Performance Award 2020[2] (Award).[3]
The matter has been initiated pursuant to s 160 of the Fair Work Act 2009 (Cth) (Act).
Procedural History
In a Statement issued on 25 September 2024,[4] we identified 15 proposed changes to the Award that were the subject of consensus between, variously, Live Performance Australia, the Media, Entertainment and Arts Alliance, and Theatre Network Australia during the consultation phase of the Review.
Interested parties were invited to provide responsive views by filing written submissions on the proposed variations by 23 October 2024. An opportunity was also provided for any interested party to request an oral hearing, if desired. No such request was made, and accordingly, we now proceed to determine the matter on the basis of the written material filed.
Written submissions were received from:
· Live Performance Australia (LPA)
· Media, Entertainment and Arts Alliance (MEAA)
· Theatre Network Australia (TNA)
· Creative Australia
· Australian Business Industrial and Business NSW (ABI/BNSW)
We issued a further Statement on 14 November 2024 granting the parties an opportunity to file responsive submissions.[5] Submissions in reply were received from LPA and TNA.
Submissions
Drafting errors – Proposals 1 and 8
LPA and the MEAA propose that two identified drafting errors in the Award should be resolved.[6] Firstly, it is submitted that clause 41.2(f)(vi) erroneously omits the words ‘Award’ and ‘reference’, which should be included so that the clause reads:
The provisions of clause 41.2(f) of this Award shall not apply to an archival and/or reference recording as defined.
Secondly, it is submitted that the classification definition for ‘Production and Support Staff Level 4’ (found at Schedule A.4.1 of the Award) erroneously refers, within subclause (b), to work ‘…above and beyond the skills of an employee at Level 4…’. It is contended that the clause should instead read as follows:
An employee at this level performs work above and beyond the skills of an employee at Level 3 and to the level of the employees’ training: …
There is no opposition to either of these variations.[7]
Replace ‘clerk’ with ‘administrator’ – Proposals 4, 6, 7, 10, 11; Replace ‘keyboard’ with ‘computer’ – Proposals 2, 3, 9, 12, 14
TNA submits that the use of the term ‘clerk’ in the Award is outdated and makes it difficult for the sector to identify coverage for arts ‘administrators’, which it says is the term now commonly used in the sector for that role.[8] TNA and LPA jointly propose that the term ‘clerk’ should be replaced with ‘administrator’ throughout Schedule A of the Award.[9]
Additionally, TNA and LPA submit that the word ‘keyboard’ should be replaced with ‘computer’ in Schedule A of the Award to assist in the identification of skills and Award coverage.
There is no opposition to these proposals.[10]
Indicative positions – Chaperone (Proposal 13), Administrative Assistant (Proposal 5) and Junior/Associate Arts Programmer (Proposal 15)
The MEAA and LPA propose that ‘Chaperone’ should be added to the list of indicative positions at Level 5 of the Award (A.5.1(d)).[11] It is submitted that there is a ‘coverage gap’ in the Award with respect to that role, leading to concerns or uncertainty about coverage.[12] The MEAA submits that there are no indicative tasks or positions in the current structure that are ‘strongly associated’ with the work of a Chaperone.[13]
TNA and LPA agree that ‘Administrative Assistant’ should be added to the list of indicative positions found at Level 3 of the Award (A.3.1(d)),[14] to assist with identified coverage concerns.
TNA and LPA submit that ‘Junior/Associate Arts Programmer’ should be added to the list of indicative positions at Level 6 of the Award to address coverage concerns (A.6.1(d)). TNA says that the indicative position of ‘Event/Marketing Coordinator’[15] and the skills and tasks provided at Schedule A.10.2 Production and Support Staff Level 8[16] overlap with the skills and duties associated with the role of ‘Arts Programmer’. It therefore says that the role of ‘Junior/Associate Arts Programmer’ is covered by the Award and that it is ‘such an important and ubiquitous role’[17] in the sector that the inclusion of the indicative role is warranted.
ABI/BNSW contends that it is not appropriate to insert the indicative roles of ‘Chaperone’, ‘Administrative Assistant’ or ‘Junior/Associate Arts Programmer’ into the Award.[18]
Firstly, ABI/BNSW submits that the classification structure in the Award is very broadly framed, such that in its view, the proposed indicative roles are covered by the Award (subject to the character of the employer). It submits that the basis of the proposal therefore cannot be to address coverage concerns, as it says is contended by the moving parties, and must instead be to address an uncertainty or ambiguity as to whether the roles are covered by the Award. It says that as no such uncertainty or ambiguity arises, the Commission is not empowered to make the variation pursuant to s 160 of the Act.
Secondly, ABI/BNSW does not accept that all employees working in the proposed indicative roles 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 variations are made.
With specific reference to the role of ‘Junior/Associate Arts Programmer’, ABI/BNSW also contends that there is a lack of evidence as to what the role of ‘Arts Programmer’ entails, such that it is not appropriate to ‘peg’ it to a particular level in the Award, even on an indicative basis.
In reply, LPA says that ABI/BNSW has mischaracterised its reference to a ‘coverage gap’ or ‘coverage issues’.[19] It submits that while it may be clear to the industrial parties that the Award covers the relevant roles, employers are nevertheless unsure about both the coverage and appropriate classification of the roles. In this sense, making the proposed variations would resolve uncertainty and ambiguity in the Award.
With respect to the classification levels, LPA reiterates that the classification levels for each indicative role title have been jointly proposed on the basis of consultation with the MEAA, TNA and LPA members.[20]
TNA adopts LPA’s submissions in reply.[21]
Further proposed variations
LPA, together with the MEAA and TNA propose that two further variations be made to the Award:[22]
Delete the words ‘Deputy Ballet Master/Mistress’ from clause 32.2(i) and Schedule B.1.1 and replace with the words ‘Rehearsal Director’; and
Insert the words ‘for full-time employees and part-time employees – 200% of the minimum hourly rate, for casual employees – 225% of the minimum hourly rate’ at clause 62.3(a).
In respect of the first additional proposal, the moving parties say that the words ‘Ballet Master/Mistress’ are outdated terms no longer used by the sector, and that it is appropriate for gendered language to be removed from the Award.[23]
In respect of the second additional proposal, the moving parties submit that the current clause 62.3(a) of the Award erroneously excludes casual loading from the calculation of the amount payable for a missed meal break. They say that this creates ambiguity in the Award of a similar kind to that recently resolved by the Commission.[24]
These additional proposals are supported by Creative Australia.[25] No other comments were received in respect of them.
Relevant principles
The power to vary an award to remove ambiguity or uncertainty, or correct error, is contained in s 160(1) of the Act, which provides as follows:
160 Variation of modern award to remove ambiguity or uncertainty or correct error
(1) The FWC may make a determination varying a modern award to remove an ambiguity or uncertainty or to correct an error.
A variation pursuant to s 160 of the Act may be made on the Commission’s own initiative (see s 160(2)(a)). The Commission may only make a such a variation if it is first satisfied that there is an ambiguity, uncertainty or error to be resolved, which is a jurisdictional pre-requisite to the exercise of discretion to vary.[26] Only if it is satisfied that such a concern exists, may it then consider whether to exercise its discretion to resolve the concern by varying the instrument.[27]
While there is some relationship between the terms ‘ambiguity’ and ‘uncertainty’, they are not synonyms.[28] There may be uncertainty in an instrument even when its terms are not ambiguous, with such uncertainty arising from the application of the unambiguous terms to a given set of circumstances.[29] Both uncertainty and ambiguity may exist where a provision is capable of more than one construction and an arguable case is made out for more than one contention. However, the mere existence of rival contentions is not a sufficient basis to conclude that there is ambiguity or uncertainty. The task is to make an objective judgment as to whether the wording of a provision is susceptible to more than one meaning.[30] A provision may be ambiguous even though it is capable of interpretation.[31] However, to identify ambiguity or uncertainty, the Commission is not required to interpret the award.[32]
Error arises where a mistake can be shown to have occurred, in that the provision of the instrument does not reflect the tribunal’s intention in making it.[33] This is distinct from disagreement with a previous decision, even if that disagreement may be well-founded.[34]
In determining whether to exercise its discretion to vary an award under s 160, the Commission may have regard to a range of factors.[35] Relevant matters may include the actual intention of the maker of the instrument or of the interested parties,[36] and the history of the provision taking into account, amongst other things, ‘equity, good conscience and the merits of the matter.’[37]
Consideration
Proposal 1 (clause 41.2(f)(vi)) and Proposal 8 (Schedule A.4.1(b))
We are satisfied that errors exist with respect to clause 41.2(f)(vi) and Schedule A.4.1(b) of the Award.
It is clear that there is a word missing between the words ‘this’ and ‘shall’ in clause 41.2(f)(vi). In the context of the clause, we accept the moving parties’ contention that the word ‘Award’ has been omitted in error. Further, clause 41.2(f)(vi) proceeds by stating that the provisions shall not apply to ‘an archival and/or recording as defined’ although there is no definition of ‘an archival and/or recording’ in the Award. Rather, the Award defines the term ‘archival and/or reference recording’ in clause 2. In this context, we also accept that clause 41.2(f)(vi) intended to cross refer to the defined term in clause 2 of the Award meaning that the word ‘reference’ has inadvertently been omitted from the provision. That these words were omitted in error is further confirmed from the fact that they were present in the equivalent clause of the Award immediately prior to its consolidation by the 4-yearly review.[38]
With respect to Schedule A.4.1(b), it is clear that the clause is intended to mirror the description found throughout the Schedule that an employee “at this level works above and beyond an employee at [the immediately preceding level] …”. This is apparent from the arrangement of the Award in Schedules A.2.1(b), A.3.1(b) and A.5.1(b). It follows that we accept the moving parties’ contention that the reference to ‘Level 4’ in Schedule A.4.1(b) is erroneous and it should instead refer to ‘Level 3’.
Having regard to our findings, we are satisfied that the Award contains drafting errors in clause 41.2(f)(vi) and in subclause (b) of Schedule A.4.1 Production and Support Staff Level 4, and this engages s 160 of the Act. The error can be resolved by making the variations sought by Proposal 1 and Proposal 8. Noting there is no opposition, we are satisfied that it is appropriate to exercise our discretion to vary these clauses in the manner sought.
Replace ‘keyboard’ with ‘computer’ - Proposals 2, 3, 9, 12, 14
We accept that the use of the term ‘keyboard’ in the classification definitions in Schedule A of the Award creates ambiguity and/or uncertainty in the identification of relevant skills, and consequently, award coverage. This is particularly so in the context of this Award, where it is possible that ‘keyboard’ may be inaccurately interpreted to mean ‘musical instrument’ rather than ‘computer’[39] (see, for instance, the use of the term ‘keyboard’ in the definition of ‘repetiteur’ at clause 3.1 of the Award).
We are therefore satisfied that an ambiguity and/or uncertainty exists. We consider this can be resolved by substituting the term ‘computer’ in place of ‘keyboard’ where used in Schedule A of the Award, as sought by Proposals 2, 3, 9, 12 and 14. Noting there is no opposition, we are satisfied that it is appropriate to exercise our discretion to vary these clauses in the manner sought.
Replace ‘clerk’ with ‘administrator’ – Proposals 4, 6, 7, 10, 11
We accept the submissions of the parties that the use of the term ‘clerk’ is outdated and no longer used in the sector.[40] In this context, we consider that the continued use of this term in the Award creates uncertainty in the classification structure.
We consider this can be resolved by substituting the term ‘administrator’ in place of ‘clerk’ where used in Schedule A of the Award, as sought by Proposals 4, 6, 7 and 11. We consider that the word ‘clerks’, as used at Schedule A.4.1(d)(i) should also be replaced with the singular term ‘administrator’ per proposal 10. Noting there is no opposition, we are satisfied that it is appropriate to exercise our discretion to vary these clauses in the manner sought.
Clause 62.3
We accept the submission that clause 62.3(a) of the Award is ambiguous and/or uncertain as to the applicable payment for a casual production and support staff employee who is required to work for more than 5 continuous hours without a meal break.
We are satisfied that it is implicit in clause 62.3(a) that casual employees would receive the casual loading in addition to the identified rate of 200% of the minimum hourly rate. In its current form, the clause is susceptible to an erroneous, contrary interpretation. We note that no opposition to this proposal has been received.
We observe that the Award has been previously varied to clarify casual employees’ rates for overtime[41] and work performed on a Sunday.[42] The variation sought by LPA reflects the structure adopted by the Commission in those previous variations, and we consider it appropriate to resolve the uncertainty in the Award by making the variation in the manner sought, but for a minor alteration to preserve the clause numbering.
Indicative position - Administrative Assistant (Proposal 5)
We are not persuaded that it is appropriate to insert ‘Administrative assistant’ as an indicative role into the Award. In circumstances where we have decided to vary the Award to replace the word ‘clerk’ with ‘administrator’ any ambiguity or uncertainty in the Award as to the coverage of administrative roles has, in our view, been sufficiently resolved.
We decline to make the variation sought.
Indicative positions – Chaperone (Proposal 13), Junior/Associate Arts Programmer (Proposal 15), and Deputy Ballet Master/Mistress
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.[43]
Having regard to the breadth of the classification structure and noting that there is no dispute between the parties that the role of ‘Chaperone’ is covered by the Award, we are not persuaded that s 160 of the Act is engaged. However, we are prepared to also acknowledge that coverage of ‘Chaperones’ under the Award may not be ‘easy to understand’ in the absence of any indicative positions which capture the duties a chaperone performs.
Nor are we sufficiently persuaded that s 160 of the Act is engaged with respect to inclusion of the indicative role of ‘Junior/Associate Arts Programmer’ and the replacement of the phrase ‘Deputy Ballet Master/Mistress’ with ‘Rehearsal Director’. In respect of each of these matters, we are not presently persuaded that an ambiguity, uncertainty or error in the Award has been established.
However, we consider that the matters advanced with respect to the roles of ‘Chaperone’, ‘Junior/Associate Arts Programmer’ and ‘Deputy Ballet Master/Mistress’ positions justify the Commission considering these matters of its own motion pursuant to s 157 of the Act. Interested parties may file further submissions about these matters in accordance with a facility provided in conjunction with this decision.
Next steps
Variations pursuant to s 160
A draft determination is published with this decision that reflects our conclusions at paragraphs [35], [37], [39] and [42] to vary the Award pursuant to s 160 of the Act.
Section 165 of the Act provides that a determination made pursuant to s 160 must take effect on the day which the determination is made, unless there are exceptional circumstances that justify specifying an earlier day.
We do not consider at this stage that there are any exceptional circumstances that justify retrospective operation. Accordingly, it is our provisional view that the final determination will take effect on the day it is made.
Any comments of a technical nature in relation to the draft determination, or submissions as to its operative date should be filed with the Commission by no later than 4:00pm AEDT Monday 24 March 2025. In the absence of any submissions, we will make the variations in the terms of the draft determination.
Further submissions in respect of potential variations pursuant s 157
Interested parties may file responsive submissions in relation to whether the Commission should vary the Award pursuant to s 157 of the Act in respect of the matters identified at paragraph [48]. Submissions must be filed with the Commission also by no later than 4:00pm AEDT Monday 24 March 2025.
All submissions are to be sent to [email protected].
DEPUTY PRESIDENT
[1] Modern Awards Review 2023–24 (Final Report, 18 July 2024)
[2] MA000081
[3] [2024] FWCFB 387 (25 September 2024)
[4] Ibid at Attachment A
[5] [2024] FWCFB 431 (14 November 2024)
[6] Submission, LPA (25 January 2024)
[7] Submission, ABI/BNSW (23 October 2024) at [29]
[8] Submission, TNA (9 January 2024)
[9] Submission, LPA (29 January 2024)
[10] Submission, ABI/BNSW (23 October 2024) at [22]-[24]
[11] Submission, Australian Council of Trade Unions, MEAA and Professionals Australia (4 December 2023); Submission, MEAA (22 January 2024)
[12] Submission, LPA (29 January 2024)
[13] Submission, MEAA (22 January 2024)
[14] Submission, LPA (29 January 2024)
[15] Live Performance Award 2020, Schedule A.8.2 ‘Production and Support Staff Level 7/Production and Support Staff Level 6 (Theatre)’
[16] Mistakenly referred to in its submission as Production and Support Staff ‘Level 10’
[17] Submission, TNA (9 January 2024) at [11]
[18] Submission, ABI/BNSW (23 October 2024) at [6]-[21], [25]-[28]
[19] Reply submission, LPA (26 November 2024)
[20] Reply submissions, LPA (26 November 2024) at [5]
[21] Submission, TNA (28 November 2024)
[22] Submission, LPA (18 October 2024); Submission, MEAA (18 October 2024); Submission, TNA (18 October 2024)
[23] Submission, LPA (18 October 2024) at [1.1]
[24] Australian Entertainment Industry Association t/a Live Performance Australia [2022] FWCFB 9
[25] Submission, Creative Australia (23 October 2024)
[26] Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50; 275 FCR 385; 294 IR 458 (Bianco Walling) at [3], in the context of the analogous provision in s 217 of the Fair Work Act 2009 (Cth)
[27] Bianco Walling at [49]
[28] Bianco Walling at [73]-[83]
[29] Bianco Walling at [75]
[30] See Re Civil Construction Corporation Enterprise Agreement (PR939346) at [42], in the context of an application to remove ambiguity or uncertainty from a certified agreement pursuant to s 170MD(6) of the Workplace Relations Act 1996 (Cth)
[31] Bianco Walling at [67]
[32] Ibid
[33] [2016] FWCFB 4418 at [73]
[34] Ibid
[35] Bianco Walling at [68]
[36] King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 at [130] and the cases cited therein
[37] Bianco Walling at [68] applying s 578 of the Fair Work Act 2009 (Cth)
[38] Live Performance Award 2010 at 12 November 2020, clause 31.6(f); [PR722493]
[39] Submission, ABI/BNSW (23 October 2024) at [24]
[40] Submission, TNA (9 January 2024); Submission, ABI/BNSW (23 October 2024)
[41] [2020] FWCFB 5636; [PR723975]
[42] [2022] FWCFB 9
[43] Modern Awards Review 2023–24 (Final Report, 18 July 2024) at [34(a)]
Printed by authority of the Commonwealth Government Printer
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