[2021] FWCFB 1325


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



Application to vary modern award – Live Performance Award 2020 – variation to clause 25.3 – provisional view confirmed

[1] On 2 March 2021, Live Performance Australia and the Media, Entertainment and Arts Alliance filed a joint application to vary clause 25.3(d) of the Live Performance Award 2020 (Live Performance Award). The application sought to vary the clause by inserting a new 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.”

[2] The joint 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.

[3] On 5 March 2021 we issued a Decision 1 in relation to the joint application. We noted that the variation sought is not an application of a type contemplated by s.160 and expressed the provisional view the most sensible way of dealing with this issue is to treat the application as having been made under s.158.

[4] In our Decision of 5 March, we also noted that the COVID-19 pandemic is still in progress and that closures and restrictions of the type contemplated by the proposed provision are likely to remain distinct possibility for some time. We expressed the provisional view that, in the current circumstances the variation proposed is necessary to achieve the modern awards objective and that the variation should operate for a limited period of time. We proposed that an additional subclause (iv) be added to the variation as follows:

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

[5] A draft determination giving effect to our provisional views was published concurrently with the Decision.

[6] We directed that submissions opposing our provisional views must be filed by 4pm on 10 March 2021. We made it clear that if no submissions were filed opposing our provisional views, we would issue a variation determination in the same terms as the draft determination. No such submissions were filed and we confirm our provisional views.

[7] A variation determination will be issued with this decision. In accordance with s.165(3) of the Fair Work Act 2009 the determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after 12 March 2021.


Printed by authority of the Commonwealth Government Printer


 1   [2021] FWCFB 1214