Sydney Opera House Enterprise Agreement 2019-2020 [2019] NSWIRComm 1094

Industrial Relations Commission New South Wales Medium Neutral Citation: Sydney Opera House Enterprise Agreement 2019-2020 [2019] NSWIRComm 1094 Hearing dates: 18 December 2019 Date of orders: 18 December 2019 Decision date: 18 December 2019 Jurisdiction: Industrial Relations Commission Before: Commissioner Constant Decision: Agreement Approved Catchwords: Employment and industrial law - awards and agreements Legislation Cited: Industrial Relations Act 1996 (NSW), ss 33, 34 Anti-Discrimination Act 1977 (NSW) Category: Principal judgment Parties: Chief Executive of the Sydney Opera House Trust (applicant) Media Entertainment Arts Alliance New South Wales (MEAA) Representation: Solicitor:

T Woods (applicant) File Number(s): 2019/00294853

EX TEMPORE Decision 1. This is an application pursuant to section 34 of the Industrial Relations Act 1996 (NSW) ("IR Act") by the Chief Executive of the Sydney Opera House Trust ("applicant") seeking approval of an enterprise agreement between the applicant and the Media Entertainment Arts Alliance ("MEAA"), on behalf of the applicant's employees covered by the proposed enterprise agreement. 2. The agreement is to be known as the Sydney Opera House Enterprise Agreement 2019-2020 ("Agreement"). 3. The application was subject to Hearing on 18 October 2019 before Chief Commissioner Kite SC and before me today. Mr M O'Sullivan appeared for the applicant on 18 October 2019 and Mr T Woods appeared today. Mr C Galea appeared for the MEAA on both occasions. 4. Two variations were made by consent at the Hearing today and the applicant undertook to provide an electronic copy of the Agreement containing the variations. 5. The application is supported by the Statement of Particulars and an affidavit sworn on 13 September 2019 by Kya Blondin, Director, People & Government of Sydney Opera House, testifying that: the conditions of employment under the Agreement, when compared with those that would otherwise apply under applicable awards do not, when considered as a whole, result in a net detriment to the employees covered by the Agreement; the Agreement complies with the relevant statutory requirements, including those of the Anti-Discrimination Act 1977; the parties understand the effect of the Agreement; the Agreement was not entered into under duress; the Agreement complies with the principles for approval determined by the Commission under section 33 of the IR Act; the Agreement provides equal remuneration for men and women doing work of equal and comparable value under the Agreement; and the Agreement complies with the NSW Public Sector Wages Policy 2011 as it provides for increases in remuneration or other conditions of employment lower than a maximum of 2.5% per annum. 6. On 18 October 2019, the Chief Commissioner directed that the parties file an affidavit annexing a table of comparison. 7. On 6 December 2019 the applicant filed two further affidavits: 1. An affidavit from Mark O'Sullivan sworn 6 December 2019; and 2. A further affidavit by Kya Blondin affirmed 6 December 2019 ("Ms Blondin's Second Affidavit"). 1. Mr O'Sullivan's affidavit annexes: 1. A table comparing rates of pay under the Agreement against relevant State and federal awards; and 2. Two tables comparing conditions under the Agreement respectively against State awards and federal awards. 1. Ms Blondin's Second Affidavit provides a history of industrial arrangements which she deposes "is provided as an explanation of why awards that apply to public servants have generally not applied to Sydney Opera House Trust staff". 2. Ms Blondin refers to sub-cl 1.2.2 of the Sydney Opera House Enterprise Agreement 2016-2019 which states: This Agreement covers all SOH employees except Senior Executives and employees covered by the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009. 1. Sub-clause 1.2.2 of the Agreement similarly excludes Senior Executives and employees covered by the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 ("Conditions Award"). 2. Mr Woods submitted that the history of industrial arrangements and the coverage clause, cl 6, of the Conditions Award operate in such a way that the Conditions Award does not cover the employees covered by the Agreement. Clause 6 of the Conditions Award provides: 6. Coverage (a) The provisions of this award shall, subject to cl 6(b) below, apply to all non-executive public service employees as defined in the Government Sector Employment Act, 2013 employed in Departments, Public Service executive agencies related to Departments, and separate Public Service agencies, listed in Schedule 1 to the Government Sector Employment Act, 2013. (b) Where another industrial instrument or arrangement applies to a group of employees covered by this Award the following interaction rules apply: (i) If the other industrial instrument or arrangement expressly displaces the entirety of this Award then this Award shall have no application to those employees; (ii) If the other industrial instrument or arrangement expressly displaces one or more provisions of this Award then: (a) this Award shall not apply to those employees covered by the other instrument or arrangement in relation to those provisions, (b) but the balance of this Award shall apply to those employees; and (iii) If the other industrial instrument or arrangement comprehensively determines conditions of employment for a group of employees then this Award shall have no application in relation to that group of employees; (iv) If the other industrial instrument or arrangement comprehensively determines a particular class of conditions of employment for a group of employees, then this Award shall have no application in relation to that group of employees in relation to that class of conditions; (v) If none of subclauses 6(b)(i)-(iv) apply, and the other industrial instrument or arrangement is silent as to its interaction with this Award, then: a. if the application of the other industrial instrument or arrangement is inconsistent with the application of this Award, the other industrial instrument or arrangement applies to the extent of the inconsistency; otherwise b. this Award applies. (c) Any officer, Departmental temporary employee and casual employee who, as at 23 February 2014, was employed in a Department listed in Schedule 1, Part 1, of the Public Sector Employment and Management Act, 2002 and who was covered by this award on that date will continue to be covered by this award. NOTATION: This clause was amended in 2014 and again in 2017 with the agreed intention of the parties to maintain the status quo of industrial coverage, by award, other industrial instrument or arrangement, following the commencement of the Government Sector Employment Act 2013 on 24 February 2014. (my emphasis) 1. Mr Galea confirmed the MEAA's support for: the applicant's submission regarding the Conditions Award; and the approval of the Agreement. 2. I am satisfied that the Sydney Opera House Enterprise Agreement 2016-2019 comprehensively determines the conditions of employment of the group of employees covered by the Agreement , and that the group of employees who will be covered by the Agreement excludes employees covered by the Conditions Award. Accordingly, I am satisfied that the material presented to the Commission, including the comparison tables annexed to Mr O'Sullivan's affidavit, adequately demonstrates that the requirements pursuant to s 35 of the IR Act are met . 3. I am satisfied that the material presented to the Commission adequately demonstrates that the Agreement submitted for approval complies with all necessary statutory tests and the principles set by the Commission pursuant to sub-s 33(1) of the IR Act. 4. The Sydney Opera House Enterprise Agreement 2019-2020 as varied at the Hearing today is approved in accordance with s 35 of the IR Act. The Agreement will operate from today until 30 June 2020. I note that the wage increase provided at sub-cl 15.2 is payable from the first pay period on or after 1 July 2019. 5. The Agreement rescinds and replaces the Sydney Opera House Enterprise Agreement 2016-2019 number EA16/09. N J Constant COMMISSIONER