DECISION

Fair Work Act 2009
s.158—Application to vary or revoke a modern award

Australian Entertainment Industry Association t/a Live Performance Australia
(AM2022/3)

Application to vary modern award – Live Performance Award 2020 – variation to clause 25.3(d)(iv) – provisional view.

[1] On 2 February 2022 the Australian Entertainment Industry Association trading as Live Performance Australia (LPA) lodged an application 1 to vary the Live Performance Award 2020 (Live Performance Award) to vary clause 25.3(d)(iv) to extend the operation of clause 25.3(d)(iii) from 12 March 2022 until 12 September 2022. This provision is currently due to expire on 12 March 2022.

[2] Clause 25.3(d) applies in circumstances where there has been a failure of the employer to produce or present a production for which an employee has been definitely engaged. It relevantly provides:

(d) Failure to produce or present production

If the employer fails to produce or present the production for which the employee is definitely engaged, the following provisions will apply:

(i) If the contracted period of engagement is 4 weeks or more, the employer will pay to the employee 4 weeks’ wages at the employee’s prescribed rate of pay, in satisfaction of all claims.

(ii) If the contracted period of engagement is less than 4 weeks, the employer will pay to the employee a sum of money equivalent to the wages for that period of engagement, in satisfaction of all claims.

…

[3] Clause 25.3(d)(iii) and (iv) were added to the Live Performance Award following a decision of a Full Bench on 12 March 2021. 2 They provide:

…

(iii) The provisions of 25.3(d)(i) and (ii) above will not apply to an employee who has been definitely engaged for a production which cannot be produced or presented due to a Covid-19 related closure of the venue in which the performance was to take place, or as a direct result of a government directive or health authorities restricting the number of people gathering in a place of live entertainment. In these circumstances an employee will be entitled to 2 weeks payment at the applicable minimum weekly rate for such classification.

(iv) Clause 25.3(d)(iii) operates from 12 March 2021 until 12 March 2022.

[4] The above provisions were added as an interim measure to modify the operation of clauses 25.3(d)(i) and (ii) in circumstances where a production cannot be produced or presented due to a Covid-19 related venue closure or a health direction restricting gathering sizes in a place of entertainment. It reduces the notice payment for employees engaged for such a production to two weeks’ pay.

[5] On 9 February 2022 I conducted a directions hearing in respect of LPA’s application, which was attended by representatives of LPA and the Media Entertainment and Arts Alliance (MEAA). At this hearing, LPA submitted that the circumstances of the Covid-19 pandemic and associated public health measures were such as to require the continuation of these interim provisions beyond their current expiry date of 12 March 2022. It submitted that the Covid-19 pandemic continues to create uncertainty in the live performance industry, with shows having to be cancelled due to illness of cast and crew, and new productions earmarked to commence work over the coming months being in doubt for the same reasons. In circumstances where the live performance industry had already been heavily impacted since the start of the Covid-19 pandemic, the LPA submitted, the variation to clause 25.3(d)(iv) was necessary to provide employers with confidence and an incentive to continue to produce and present productions.

[6] The MEAA indicated that it supported LPA’s application.

[7] My provisional view is that LPA’s application to vary clause 25.3(d)(iv) of the Live Performance Award so that the operation of clause 25.3(d)(iii) is extended until 12 September 2022 should be granted because the proposed variation is necessary to meet the modern awards objective. I have reached this provisional view for the same reasons stated in paragraph [6] of the decision 3 of the Full Bench setting out its provisional view on the initial application to insert clauses 25.3(d)(iii) and (iv) into the Live Performance Award:

“[6] The Covid-19 pandemic is still in progress and closures and restrictions of the type contemplated by the proposed provision are likely to remain distinct possibility for some time. The Arts community has been particularly impacted by the various public health restrictions imposed to contain the pandemic…”

[8] I have also taken into account the MEAA’s consent to the application in reaching my provisional view.

[9] Any interested party which opposes my provisional view shall file submissions by 4:00pm AEDT on 18 February 2022 to amod@fwc.gov.au outlining the reasons for its opposition.

[10] In the event that no submissions are filed in accordance with the above direction, the Live Performance Award will be varied in line with my provisional view effective from 12 March 2022.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Application of LPA, 2 February 2022

 2   [2021] FWCFB 1325

 3   [2021] FWCFB 1214