Industrial Relations Commission New South Wales Medium Neutral Citation: Sydney Opera House Enterprise Agreement 2022-2024 [2023] NSWIRComm 1123 Hearing dates: Determined on the papers Date of orders: 20 December 2023 Decision date: 20 December 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The variations contained in the version of the Sydney Opera House Enterprise Agreement 2022/2024 signed by the parties on 7 December 2023 and filed with the SOHT's application, are approved. That agreement is made in accordance with section 35 of the Act. The agreement so made rescinds and replaces enterprise agreement number EA 22/08. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements - Variation Legislation Cited: Anti-Discrimination Act 1977 Industrial Relations Act 1996 ss 33, 35, 43 Cases Cited: Review of the Principles for Approval of Enterprise Agreements 2021/2022 [2022] NSWIRComm 1005 Texts Cited: None Category: Principal judgment Parties: Chief Executive Officer of the Sydney Opera House Trust (Applicant) Media Entertainment and Arts Alliance (Respondent) Representation: M O'Sullivan, Sydney Opera House Trust (Applicant) A Widitz, MEAA (Respondent) File Number(s): 2023/00449792 Publication restriction: No DECISION 1. The Chief Executive Officer of the Sydney Opera House Trust ("SOHT") has applied for a variation to the Sydney Opera House Enterprise Agreement 2022-2024 ("Agreement"), pursuant to s 43 of the Industrial Relations Act 1996 ("Act'"). 2. The Agreement was approved by Commissioner Muir on 12 December 2022. Put simply, the variations seek two outcomes. First, to replace the existing anti-discrimination clause of the Agreement with one in the form of Attachment 1 to the Commission's Principles for Approval of Enterprise Agreements, set by the Commission pursuant to s 33 of the Act in Review of the Principles for Approval of Enterprise Agreements 2021/2022 [2022] NSWIRComm 1005 ("Principles"). Second, for the increase to wages and allowances from the first pay period on or after 1 July 2023 to be 4%, in place of the existing 2.53%. 3. The application is supported by a Statement of Particulars. The SOHT also relied on affidavits of Kya Blondin, the Executive Director, People & Government at Sydney Opera House, and Mark O'Sullivan, the Manager, Industrial Relations & HR Projects at Sydney Opera House. 4. The respondent to the application is the Media Entertainment and Arts Alliance ("MEAA"). The MEAA supports the application. 5. In her affidavit, Ms Blondin described the coverage of the Agreement. She deposed, and set out the basis for deposing, that: 1. the proposed agreement complies with the NSW Public Sector Fair Pay Policy 2023; 2. the proposed agreement will maintain the guaranteed minimum conditions of employment prescribed in the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014; 3. the proposed agreement meets the requirements for approval set out in the Principles; 4. the SOHT and the MEAA have a full and proper understanding of the nature and effect of the proposed agreement, the Sydney Opera House Trust Staff Agency was actively involved with the MEAA in negotiating the proposed agreement, and the parties have not entered into the proposed agreement under duress; 5. the proposed agreement complies with all relevant statutory requirements, including those under the Anti-Discrimination Act 1977; 6. the proposed 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; 7. the proposed agreement establishes consultative mechanisms and procedures that are appropriate to the size, structure and needs of Sydney Opera House, and includes commitments by the employer to consult and communicate with employees and the MEAA on a range of workplace matters; and 8. the proposed agreement contains a disputes resolution clause. 1. Mr O'Sullivan annexed to his affidavit documents containing comparisons of the rates of pay and conditions under the proposed agreement against those that would be available to employees under otherwise applicable instruments. 2. The MEAA filed an affidavit of Annette Widitz, a Senior Industrial Officer with the MEAA. In her affidavit, Ms Widitz stated that at the time of making the Agreement in 2022, there was an agreement between the parties that should the NSW Government amend its wages policy to allow for a greater increase to wages than that provided for in the Agreement, the SOHT "would be open to increasing the 2023 pay rise above 2.53%". 3. Ms Widitz described the process by which the proposed variations to the Agreement were negotiated and the steps taken by the MEAA to inform its members of those proposed variations. She stated that on 30 October 2023 an all-staff meeting was convened by the MEAA at which the proposed variations were approved unanimously by the affected employees. 4. Section 43 of the Act provides that an enterprise agreement may be varied at any time "by a further enterprise agreement made and approved in accordance with this Part". In the present case, the parties varied the Agreement as approved by Commissioner Muir so as to include the variations sought in the application. The Agreement as so amended was executed by the parties on 7 December 2023. 5. The amended and executed agreement was filed with the application. The effect of the application, although it is not stated, is that the Commission would approve the amended agreement and, in so doing, both approve the variations to the existing Agreement and replace it. 6. I am satisfied that the material presented to the Commission sufficiently demonstrates that the agreement submitted for approval complies with all necessary statutory tests and the Principles. 7. The variations contained in the version of the Sydney Opera House Enterprise Agreement 2022-2024, signed by the parties on 7 December 2023 and filed with the SOHT's application, are approved. That agreement is made in accordance with s 35 of the Act. The agreement so made rescinds and replaces enterprise agreement number EA 22/08. Damian Sloan 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: 20 December 2023