DECISION

Fair Work Act 2009
s.210—Enterprise agreement

West Australian Symphony Orchestra Pty Ltd
(AG2019/5133)

WEST AUSTRALIAN SYMPHONY ORCHESTRA MUSICIANS’ AGREEMENT 2018-2020

Live performance industry
COMMISSIONER YILMAZ	MELBOURNE, 6 FEBRUARY 2020

Application for variation of the West Australian Symphony Orchestra Musicians’ Agreement 2018-2020.

[1] An application has been made for approval of a variation to the West Australian Symphony Orchestra Musicians’ Agreement 2018-2020 (the Agreement). The application was made by West Australian Symphony Orchestra Pty Ltd pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary the WASO pay rates table in Appendix B – Rates, Allowances and Penalties on page 54 of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] The variation was made on 12 December 2019 when a majority of the affected employees’ case a vote to approve the variation. The proposed variation was agreed to by the Media, Entertainment and Arts Alliance.

[4] I am satisfied that each of the requirements of ss.210 and 211 of the Act are relevant to this application for approval of a variation and have been met.

[5] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

[6] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[7] In accordance with s.216 of the Act, the variation operates from 6 February 2020.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, West Australian Symphony Orchestra Pty Ltd, sought variation of the West Australian Symphony Orchestra Musicians’ Agreement 2018-2020. The dispute arose from the applicants' inability to reach a new agreement with the musicians' union. The matter was heard in the Fair Work Commission.

The central issue before the commission was whether the application met the criteria for a variation of the existing enterprise agreement. This required consideration of whether the applicant had genuinely sought to negotiate in good faith and whether the proposed changes were necessary to avoid financial loss or significant detriment to the business.

The commission found that the applicant had not made a genuine attempt to negotiate with the union and that the proposed changes were not necessary to prevent financial loss. Consequently, the application was dismissed. The commission emphasised the importance of good faith bargaining in enterprise agreements and noted that the applicant had not provided sufficient evidence to support their claims. The dismissal of the application meant that the existing agreement would remain in place unless both parties could reach a new agreement through negotiation.

West Australian Symphony Orchestra Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established