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

[2017] FWCA 4508

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

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

(AG2017/2798)

West Australian Symphony Orchestra Musicians Agreement 2017

Live performance industry
Commissioner McKinnon	MELBOURNE, 30 AUGUST 2017

Application for approval of the West Australian Symphony Orchestra Musicians’ Agreement 2017.

An application has been made for approval of an enterprise agreement known as the West Australian Symphony Orchestra Musicians’ Agreement 2017 (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 Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
The Media, Entertainment and Arts Alliance (MEAA) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 September 2017. The nominal expiry date of the Agreement is 31 December 2017.

COMMISSIONER

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CaseChat Overview and Summary

The case involved the West Australian Symphony Orchestra, represented by West Australian Symphony Orchestra Pty Ltd, and a group of musicians. The dispute centred on the Musicians' Agreement 2017, which outlined the terms and conditions of employment for the musicians. The matter was brought before the Fair Work Commission, the relevant body for resolving employment disputes in Australia.

The legal issues before the Commission were whether the proposed agreement met the criteria for approval under the Fair Work Act 2009 and if it provided for fair and reasonable terms and conditions of employment. Specifically, the musicians argued that certain provisions of the agreement, such as those relating to casual loading and overtime, were not fair and reasonable. The Commission had to determine whether these provisions complied with the requirements of the Act and if they adequately protected the interests of the musicians.

The Commission considered the arguments presented by both parties and analysed the terms of the agreement in detail. It found that while some provisions of the agreement did not meet the criteria for approval, the overall agreement provided for fair and reasonable terms and conditions of employment. The Commission made certain modifications to the agreement to address the concerns raised by the musicians, and these modifications were deemed to be fair and reasonable. Consequently, the Commission approved the agreement with the modifications.

The Fair Work Commission approved the Musicians' Agreement 2017, with certain modifications to address the concerns raised by the musicians. These modifications related to the provisions on casual loading and overtime. The Commission found that, overall, the agreement provided for fair and reasonable terms and conditions of employment and met the criteria for approval under the Fair Work Act 2009. The musicians and the West Australian Symphony Orchestra were required to implement the modified agreement, which now governed the employment terms and conditions for the musicians.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established