Industrial Relations Commission New South Wales Medium Neutral Citation: Government of New South Wales (Sydney Opera House Trust Staff Agency) Enterprise Agreement 2021-2022 [2022] NSWIRComm 1038 Hearing dates: Matter considered on the papers Date of orders: 20 May 2022 Decision date: 03 June 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Webster Decision: Enterprise Agreement approved Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – awards and agreements - enterprise agreement approved – net detriment test – Principles for Approval of Enterprise Agreements Legislation Cited: Anti-Discrimination Act 1977 Industrial Relations Act 1996 ss 32, 33, 35, 39 Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 Cases Cited: Review of the Principles for Approval of Enterprise Agreements 2021/2022 [2022] NSWIRComm 1005 Category: Principal judgment Parties: Government of New South Wales (Sydney Opera House Trust Staff Agency) (applicant) Media Entertainment and Arts Alliance (party) Representation: Representatives: Lander & Rogers (applicant) File Number(s): 2022/141124 Publication restriction: Nil decision 1. This is an application pursuant to s 32 of the Industrial Relations Act 1996 ("the Act") by the Government of New South Wales (Sydney Opera House Trust Staff Agency) ("the Applicant") seeking approval of an enterprise agreement between the Applicant on the one hand, and the Media Entertainment and Arts Alliance (MEAA), on the other (collectively, "the parties")("the Application"). 2. The enterprise agreement is to be known as the Sydney Opera House Enterprise Agreement 2021-2022 ("the Agreement"). 3. Part 2 of the Act provides for the making an approval of enterprise agreements. Of particular relevance, s 35 of the Act provides: 35 Approval of enterprise agreement by Commission (1) The Commission is to approve each enterprise agreement lodged for approval, but only if the Commission is satisfied that— (a) the agreement complies with all relevant statutory requirements (including the requirements of this Part and of the Anti-Discrimination Act 1977), and (b) in the case of an agreement that covers employees to whom State awards would otherwise apply—the agreement does not, on balance, provide a net detriment to the employees when compared with the aggregate package of conditions of employment under the State awards, and (b1) in the case of an agreement that covers employees to whom Federal awards would otherwise apply—the employees are not disadvantaged in comparison to their entitlements under the Federal awards, and (b2) in the case of an agreement that covers employees to whom no State or Federal award would otherwise apply—the agreement does not, on balance, provide a net detriment to the employees when compared with the aggregate package of conditions of employment under a State or Federal award that covers employees performing similar work to that performed by the employees covered by the agreement, and (c) the parties understand the effect of the agreement, and (d) the parties did not enter the agreement under duress. (2) This subsection applies to an enterprise agreement that applies to some but not all the employees of an employer, unless the employees to whom it applies comprise a distinct geographic, operational or organisational unit. The Commission is not to approve such an enterprise agreement if it is satisfied that— (a) the agreement fails to cover employees who would reasonably be expected to be covered, given the nature of the work performed under the agreement and the organisational and operational relationships between the employees covered by the agreement and the remainder of the employees, and (b) it is unfair not to cover the employees excluded from the agreement. (3) The Commission is to follow the principles for approval set under section 33 when deciding whether to approve an enterprise agreement, unless satisfied that any departure from those principles would not prejudice the interests of any of the parties to the agreement. (4) (Repealed)" 1. I have considered whether the Application for the Agreement has met the relevant statutory criteria below. The Application 1. The Application is supported by: 1. A Statement of Particulars; 2. Affidavit of Kya Blondin, Executive Director, People & Government of Sydney Opera House, dated 11 May 2022; 3. Affidavit of Mark O'Sullivan, Manager, Industrial Relations & HR Projects dated 12 May 2022; and 4. Affidavit of Annette Widitz, Senior Industrial Officer MEAA dated 27 May 2022. 1. The affidavit of Mark O'Sullivan attached a document titled "Sydney Opera House Enterprise Agreement 2021-2022 Award Comparison – Comparison Table" ("the comparison table"). The comparison table sets out the Agreement when contrasted with the awards that would otherwise apply to the employment of the relevant employees. In some cases, the Agreement has been compared with both Federal and State awards and Mr O'Sullivan deposes to the basis upon which particular instruments were selected for the purpose of the comparison, noting that this reflects the "complex, multi-faceted nature of Sydney Opera House's operations as a commercial, 24-hour, 7 day a week revenue-generating business, promoter of the arts and entertainment, and cultural and world heritage listed international icon." 2. In her affidavit, Kyla Blondin testifies that: 1. the Agreement applied to all employees employed by the Government of New South Wales (Sydney Opera House) located at Bennelong Point, Sydney except Senior Executives and employees covered by the Crown Employees (Public service Conditions of Employment) Reviewed Award 2009; 2. The Agreement complies with all relevant statutory requirements, including the Anti-Discrimination Act 1977 and s 33 of the Act and the principles set by the Commission; 3. The Agreement does not, on balance, provide a net detriment to employees when compared with the aggregate package of conditions of employment which would otherwise apply under applicable awards; 4. The Agreement complies with the NSW Public Sector Wages Policy 2021 as it provides for increases; 5. The Agreement maintains the guaranteed minimum conditions of employment prescribed in the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014; and 6. The parties have a full and proper understanding of the terms of the new Agreement and have not entered into it under duress. 1. In his affidavit, Mark O'Sullivan testifies: 1. The Agreement meets the net detriment test and the basis for this, including the comparison conducted with both State and Federal Awards where appropriate. 2. For all positions, base rate of pay under the Agreement are significantly in excess of what the employees in those roles would otherwise be entitled to receive under State or Federal awards. 3. It is his overall assessment that most terms found in the Agreement are equivalent to, or greater than, their award equivalent. 1. The matter was listed for mention on 20 May 2022. The MEAA appeared indicating their support for the approval of the Agreement. A direction was made for the filing of an affidavit in support of the approval of the Agreement by the MEAA. 2. In her affidavit, Annete Widitz of the MEAA testifies that: 1. The practical effect of the Agreement was explained to their members at meetings and in discussions. 2. She was advised that all employees were notified via email that negotiations with the MEAA had commenced, and details with respect to the Agreement proposed. 3. All staff were invited to a meeting with the MEAA to discuss the Agreement negotiations, including three all-staff meetings on 28 September 2021 to consider and vote on the proposed agreement, with details were provided of the proposal and questions about the changes could be answered. 1. The Agreement contains a dispute resolution clause in accordance with s 39 of the Act. 2. I am satisfied that the material presented to the Commission adequately demonstrates that the Agreement submitted for approval complies with all necessary statutory tests pursuant to s 33 of the Act and the principles set by the Commission in Review of the Principles for Approval of Enterprise Agreements 2021/2022 [2022] NSWIRComm 1005. Order 1. I make the following order: 1. The Agreement is approved in accordance with s 35 of the Act and will operate from the date of approval until 30 June 2022. Janine Webster COMMISSIONER ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 June 2022