| FWCFB 1214|
|FAIR WORK COMMISSION|
Fair Work Act 2009
s.157—FWC may vary etc. modern awards if necessary to achieve modern awards objective
Variation of awards on the initiative of the Commission
Live performance industry
JUSTICE ROSS, PRESIDENT
MELBOURNE, 5 MARCH 2021
Application to vary modern award—Live Performance Award 2020—variation to clause 25.3—provisional view.
 On 2 March 2020, Live Performance Australia and the Media, Entertainment and Arts Alliance (MEAA) made a joint application to vary the Live Performance Award 2020 (Live Performance Award). The application seeks to vary clause 25.3(d) of the Live Performance Award, which currently 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.”
 The application seeks to vary the clause by inserting a further provision (iii) as follows:
“(iii) The provisions of (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.”
 The application was made under s.160 of the Fair Work Act 2009 (the Act). Section 160 of the Act deals with the variation of a modern award to remove ambiguity or uncertainty or to correct an error.
 It seems to us that the variation sought is not an application of a type contemplated by s.160. The relevant clause is not ambiguous or uncertain and it is not suggested that the proposed variation is necessary to correct an error. Rather, the application seeks to vary clause 25.3(d) by introducing a qualification to the application of subparagraphs (i) and (ii) of that provision.
 In our provisional view the most sensible way of dealing with this issue is to treat the application as having been made under s.158 and that is the course we propose to adopt. If either of the joint applicants object to that course and wishes to press the application under s.160 they may file a submission to that effect, in accordance with the timetable set out below, under Next Steps.
 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. An information note regarding the state of the live performance sector was published by the Commission earlier today and is available here.
 It is our provisional view that, in the current circumstances, the variation proposed is necessary to achieve the modern awards objective, taking into account the considerations in s.134(1)(a) – (h) in so far as they are relevant.
 We note that the proposed variation is not expressed to only operate for a limited time. Whilst we consider that this variation is necessary to deal with the extraordinary set of circumstances of the current Covid-19 pandemic, it is our provisional view that the variation should be limited in duration and that a further subclause be added to the variation as follows:
“(iv) Clause 25.3(d)(iii) operates from 12 March 2021 until 12 March 2022.”
 As with other variations to address the circumstances arising from the Covid-19 pandemic, parties are at liberty to apply to extend the date of operation by subsequent variation.
 A draft determination giving effect to our provisional view will be published concurrently with this decision.
 Any submission opposing the provisional views we have expressed at ,  and  above must be filed by no later than 4pm Wednesday 10 March 2021.
 If no submissions are filed opposing our provisional view, we will issue a variation determination in the same terms as the draft determination.
 All submissions are to be sent to email@example.com.
 If any submissions are filed opposing our provisional view then a hearing will take place at 1PM (AEDT) on Thursday 11 March 2021 by telephone. Parties wishing to appear at the hearing are to provide the name, direct number and organisation by 10AM on Thursday 11 March 2021 to firstname.lastname@example.org. If no submissions are filed opposing our provisional view then the hearing will not be necessary and will be vacated.
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