DECISION

Fair Work Act 2009
s 156 - 4 yearly review of modern awards

(AM2019/3)

Live Performance Award 2010 – substantive claims – agreement of major parties to new Award – substantive issues resolved – further exposure draft in accordance with Full Bench timetable.

[1] In a statement issued by the President ([2019] FWC 851), His Honour recorded the following:

‘[1] This Statement deals with the substantive claims made to vary the Live Performance Award 2010 (Live Performance Award).

[2] In the August 2018 decision and November 2018 decision, interested parties were provided an opportunity to comment on two submissions (dated 21 August 2018 and 15 October 2018) made by Queensland Ballet relating to full-time employment of Musicians under the exposure draft. The November 2018 decision noted the following:

‘[55] In the August 2018 decision interested parties were given a final opportunity to notify the Commission of any outstanding substantive items they wished to pursue. Submissions were received from the following parties:

•  Live Performance Australia (LPA); and

•  Queensland Ballet.

[56] LPA submitted it would be pursuing a substantive variation, S7 in the summary of submissions, to amend the clause relating to casual employees to provide for payment to casual performers who perform in a performance of up to one hour.

[57] LPA submit that following comments made by the Fair Work Ombudsman in a recent matter regarding casual performers that further amendments were required to clause 31.6 to ensure that the provisions take into account short term project-based work. LPA submitted that it provided proposed variations to the MEAA in the hope of reaching agreement. LPA filed a further submission on 15 October 2018 submitting that agreement on the matter had not been reached and they would be pressing the substantive claim. A separately constituted Full Bench will hear and determine this matter.

[58] Queensland Ballet filed two submissions (on 21 August 2018 and 15 October 2018), and submit that the exposure draft published on 26 March 2018 ‘makes significant changes to the General Employment Conditions, by removing the option for musicians to be employed on a full-time basis and requiring that all Musicians are engaged on a casual, weekly or part-time basis only’. It notes that removing the ability to employ Musicians on a full-time basis will in practice, seriously impact the ability of Queensland Ballet and other companies who engage Musicians in this manner. It further submits that full time employment continues to be a secure and desirable employment structure for Musicians and request the award be redrafted to provide clarity around the ongoing terms of full-time employment, including applicable minimum wage, rather than removing that option for both employers and employees.

[59] The amendments that were made to the exposure draft published on 26 March 2018 were as a result of agreement reached between interested parties during conferences before Deputy President Gostencnik in 2017, which was set out in our March 2018 decision. We will provide interested parties an opportunity to comment on the submission made by Queensland Ballet before determining the matter. Submissions must be filed to amod@fwc.gov.au no later than 4.00 pm on Tuesday 27 November 2018.

[60] There are no other outstanding issues for this Full Bench to determine with regards to the Live Performance Award.’ (footnotes omitted)

[3] There has been no response from interested parties regarding Queensland Ballet’s submission. In the absence of any further submissions from interested parties, Queensland Ballet’s claim along with LPA’s substantive claim in the Live Performance Award (S7) will be determined by a separately constituted Full Bench.

[4] Further directions will be issued by the relevant Full Bench in due course.’ (footnotes omitted)

[2] Finalising the outstanding substantive issues for this Award referred to in [3] above, was referred to this Full Bench on 12 February 2019.

[3] The Presiding Member convened a Report Back Conference of the parties on 13 June 2019 and was updated on progress as to the likely agreement of the major parties to a new draft award.

[4] On 15 July 2019, the Presiding Member sought the views of the major parties to the Award, namely the Media, Entertainment and Arts Alliance (‘MEAA’), Queensland Ballet, and Live Performance Australia. Live Performance Australia and the MEAA indicated their agreement to a new draft Award and submitted it should be approved by the Full Bench as meeting the modern awards objective (s 134 of the Act). As of this date, no other interested party has responded to the contrary.

[5] We consider that the draft Award, including the resolution of the substantive issues raised earlier by the parties meets the modern awards objective. An exposure draft will be published on the Commission’s website arising from the timetable set by the Full Bench Finalisation Decision of 2 September 2019; [2019] FWCFB 6077.

DEPUTY PRESIDENT

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