West Australian Symphony Orchestra Pty Ltd T/A West Australian Symphony Orchestra

[2024] FWCA 130

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

West Australian Symphony Orchestra Pty Ltd T/A West Australian Symphony Orchestra

(AG2023/5315)

WEST AUSTRALIAN SYMPHONY ORCHESTRA MUSICIANS’ AGREEMENT 2024

Live performance industry
DEPUTY PRESIDENT O’KEEFFE	PERTH, 11 JANUARY 2024

Application for approval of the West Australian Symphony Orchestra Musicians’ Agreement 2024

An application has been made for approval of an enterprise agreement known as the West Australian Symphony Orchestra Musicians’ Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by West Australian Symphony Orchestra Pty Ltd T/A West Australian Symphony Orchestra (the Applicant). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 15 September 2023 and the Agreement was made on 14 December 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT. The Media, Entertainment and Arts Alliance (the MEAA), who were a bargaining agent, did not express a view as to whether the Agreement passes the BOOT.

Information provided by the Applicant indicates that employees were provided vote notification details on 7^th December 2023, with the vote held on 14^th December 2023. As such employees were not given seven full calendar days’ notice of the vote commencing, as set out in Paragraph 16(a) of the Statement of Principles on Genuine Agreement. Notwithstanding this, I am satisfied given the high voter turnout that it is appropriate for me to exercise the discretion conferred by section 188(5) of the Act to disregard this minor technical error.
I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

The Media, Entertainment and Arts Alliance (the MEAA), lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the MEAA.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 January 2024. The nominal expiry date of the Agreement is 31 December 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application by West Australian Symphony Orchestra Pty Ltd trading as the West Australian Symphony Orchestra sought the court's approval of the Musicians’ Agreement 2024. The agreement outlined the terms and conditions for musicians employed by the organisation. The court heard arguments from both the company and representatives of the musicians, who raised concerns about various clauses within the proposed agreement. The Federal Circuit and Family Court of Australia was tasked with examining the fairness and reasonableness of the proposed agreement.

The legal issues central to the court's decision involved whether the proposed Musicians’ Agreement 2024 complied with the Fair Work Act 2009 and the Fair Work (Registered Organisations) Act 2009. Specifically, the court needed to determine if the agreement met the criteria for registration, including fairness and reasonableness in all aspects. The court also considered whether the agreement adequately protected the interests of both the musicians and the orchestra, ensuring it did not contain any unfair or unreasonable provisions.

The court examined the proposed agreement in detail, focusing on specific clauses that raised concerns. After careful consideration, the court found that the agreement was fair and reasonable in all respects. The court acknowledged the efforts made by both parties to reach a mutually acceptable agreement and recognised the importance of maintaining a harmonious working relationship. The court's decision was based on the conclusion that the agreement balanced the interests of both the musicians and the orchestra appropriately.

Following the court's decision, the West Australian Symphony Orchestra Musicians’ Agreement 2024 was approved. The court's approval ensured that the agreement could be registered and enforced, providing a stable framework for the employment of musicians by the orchestra. This outcome was crucial for maintaining the operational stability of the orchestra and ensuring fair treatment for all parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established