Fair Work Act 2009
s.160—Application to vary a modern award to remove ambiguity or uncertainty or correct error

Australian Entertainment Industry Association t/a Live Performance Australia
(AM2021/78)

Application to vary a modern award to remove ambiguity or uncertainty or correct error – Live Performance Award 2020

[1] On 20 September 2021, the Australian Entertainment Industry Association, a registered organisation of employers which operates under the name “Live Performance Australia” (LPA) lodged an application pursuant to s 160 of the Fair Work Act 2009 (FW Act). LPA’s application sought the variation of the Live Performance Award 2020 (Award) in order to resolve ambiguities in the Award concerning, firstly, the rate of pay for casual employees on Sundays and public holidays and, secondly, the application of provisions concerning meal allowances and incidentals allowances for employees when travelling.

[2] In respect of the rates of pay for casual employees on Sundays and public holidays:

•  clause 57.3 provides that the appropriate rate per hour for casual employees is the minimum hourly rate specified in clause 11 - Minimum rates for the relevant classification level plus a 25% loading on such hourly rates;

•  clause 57.4 provides that when a casual employee works overtime, they must be paid the overtime rates in clause 63.2;

•  clause 63.2 provides for casual employees daily overtime rates of 175% of the minimum hourly rate for the first 2 hours and 225% of the minimum hourly rate thereafter and weekly overtime rates of 175% of the minimum hourly rate for the first 4 hours and 225% of the minimum hourly rate thereafter, with such rates being inclusive of the casual loading;

•  clause 63.4(b) provides that a casual employee who “starts work on a Sunday” will be paid 200% of the minimum hourly rate for all time worked with a minimum payment for 4 hours;

•  clause 63.4(c) provides that a casual employee who “starts work on a Sunday for overtime” will be paid 225% of the minimum hourly rate for all time worked with a minimum payment for 4 hours; and

•  clause 21.5 provides in respect of production and support staff that all employees who work on a public holiday, whether as part of an ordinary roster or work cycle or not, will be paid 200% of the minimum hourly rate with a minimum payment as for 4 hours.

[3] In its application, LPA contends that the above provisions are ambiguous because, in the absence of any definition of “minimum hourly rate” or “appropriate per hour rate”, it is not clear whether Sunday and public holidays rates are inclusive of the 25% casual loading or not.

[4] In respect of meal allowances and incidental allowances while travelling:

•  clause 14.3(g) provides for a daily meal allowance where the period of travel is “one week or less” and the heading of the provision is “Meals while travelling – one week (5 working days) or less”;

•  clause 14.3(h) provides for a weekly meal allowance, as well as a daily allowance in a broken week, where the period of travel is “one week or more”, and the heading of the provision is “Meals while travelling – one week (5 working days) or more”; and

•  clause 14.3(i) provides for an incidentals allowance where the period of travel is “one week or more”.

[5] LPA contends in its application that the above provisions are ambiguous because the concepts of “one week or less” and “one week or more” appear to overlap. It contrasted these provisions to clauses 14.3(c) and (d), where accommodation allowances are provided for a period of less than one week (1-4 days) and more than one week (5 working days or more) respectively.

[6] The application was the subject of a directions hearing on 11 October 2021, which was attended by LPA and a representative of the Media, Entertainment and Arts Alliance (MEAA). The parties agreed to confer in relation to the matters.

[7] On 25 October 2021, LPA sent correspondence to the Commission advising that LPA and the MEAA had agreed to the terms of a draft determination, which was attached to the correspondence. A report back was conducted on 26 October 2021, which was attended by LPA, MEAA and a representative of Gig Power Pty Ltd, an employer covered by the Award. At this report back, there was some discussion about the draft determination, and LPA undertook to file an amended draft determination to address the issues which had been raised.

[8] On 15 November 2021, LPA filed an amended draft determination which it said, in accompanying correspondence, had been agreed between the parties. A copy of this determination is attached as Annexure A.

[9] Our provisional view, except for two matters, is that:

(1) the Award is ambiguous in the respects identified in LPA’s application;

(2) the amended draft determination (with some minor drafting adjustments) would appropriately resolve these ambiguities; and

(3) it is necessary to vary the Award in the terms of the draft determination in order to achieve the modern awards objective in s 134(1) of the FW Act.

[10] One elaboration upon the second provisional view is necessary. The amended draft determination would establish a single penalty rate of 225%, inclusive of the casual loading, for casual employees working on Sundays, whether on ordinary or overtime hours. We are satisfied that this does not involve any increase to the existing penalty rate. In the form it was when it first took effect on 1 January 2010, the Award provided (in clause 47.4(a)) for all employees to be paid double time on Sundays, with it being implicit that casual employees would receive the casual loading in addition. When, as part of the 4 yearly review, overtime provisions for casual employees in all modern awards were addressed as a common issue, the expression of the overtime entitlement for casual employees on Sundays in the Award was clarified to make it explicitly clear that the rate was 225% inclusive of the casual loading. However, because the scope of this part of the review was confined to overtime rates, there was no corresponding clarification to the casual rate for ordinary time on Sundays. This resulted in clauses 63.4(b) and (c) giving the appearance of providing for different casual rates on Sunday for ordinary time and overtime. The amended draft determination appropriately addresses this.

[11] The first exception is that we consider that a variation should be made to clause 21.4 consistent with that to be made to clause 21.5. Clause 21.4 currently provides:

21.4 Musicians

All work done by a full-time, part-time or casual musician on a public holiday must be paid for at 200% of the minimum hourly rate.

[12] Like clause 21.5, it is uncertain whether this includes the 25% loading in respect of casual employees. We consider that it should be varied to provide:

21.4 Musicians

(a) All work done by a full-time or part-time musician on a public holiday will be paid at 200% of the minimum hourly rate.

(b) All work done by a casual musician on a public holiday will be paid at 225% of the minimum hourly rate.

[13] The second exception is that we consider that an additional variation should also be made to clarify clause 57.3. We agree with LPA that the expression “appropriate per hour rate” in this clause is uncertain in its meaning. Our provisional view is that clause 57.3 should be varied as follows to clarify that it concerns the ordinary-time rate of pay for casual employees (with clause 63 dealing with overtime rates of pay):

57.3 For each ordinary hour worked, a casual employee must be paid the minimum hourly rate specified in clause 11—Minimum rates, for the relevant classification level, plus a loading of 25% of the minimum hourly rate.

[14] Our provisional view is that the above variation is also necessary to achieve the modern awards objective.

[15] A consolidated draft determination is attached as Annexure B. Interested parties will have 14 days from the date of this decision to file any submissions in relation to the provisional views expressed in this decision and/or in relation to the terms of Annexure B.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR738037>

ANNEXURE A

Fair Work Act 2009
s.160—Variation of Modern Award to remove ambiguity or uncertainty or correct error

The Australian Entertainment Industry Association
(trading as Live Performance Australia)
and
The Media Entertainment and Arts Alliance
(AM2021/78)

LIVE PERFORMANCE AWARD 2020
[MA000081]

Application to vary the Live Performance Award 2020.

A. Further to decision [[2021] FWC XX] issued by Vice President Hatcher on XX November 2021, the above award is varied as follows:

1. By inserting in clause 2 Definitions in alphabetical order the following:

Minimum hourly rate means the minimum weekly rate as specified in clause 11 of this award divided by 38 and rounded to the nearest cent.

2. By deleting clause 21.5 and inserting the following:

21.5 Production and Support staff

Full-time and part-time employees who work on a public holiday, whether part of an ordinary roster or work cycle or not, will be paid 200% of the minimum hourly rate with a minimum payment as for 4 hours.

Casual employees who work on a public holiday will be paid 225% of the minimum hourly rate with a minimum payment as for 4 hours.

3. By deleting clause 44.6(a)(ii) and inserting the following:

(ii) Casual employees—225% of the minimum hourly rate with a minimum payment as for 3 hours.

4. By deleting clause 63.4(b) and inserting the following:

(b) A casual employee who starts work on a Sunday will be paid 225% of the minimum hourly rate for all time worked, including any overtime, with a minimum payment for 4 hours.

NOTE: The overtime rate for casual employees has been calculated by adding the casual loading prescribed by clause 57.3 to the overtime rate for full-time and part-time employees prescribed by clause 63.4(a).

5. By deleting clause 63.4(c).

6. By re-numbering clause 63.4(d) to 63.4(c).

7. By deleting clause 14.3(g) and inserting the following:

14.3(g) Meals while travelling – 1 to 4 days

Where the period of travel is 1 to 4 days and the employee is not provided with meals during the period of travel, the employer shall pay the employee a meal allowance of $30.05 for each meal period which occurs during the travel.

8. By deleting clause 14.3(h) and inserting the following:

(h) Meals while travelling – one week (5 working days) or more

Where the period of travel is one week or more and the employee is not provided with meals during the period of travel, the employer shall pay the employee a meal allowance of up to a maximum of $304.81 per week or $60.96 per day in a broken week. (Note: the daily allowance is derived by dividing the weekly rate by 5.)

9. By deleting clause 14.3(i) and inserting the following:

(i) Incidentals allowance while travelling

When the period of travel is one week (5 working days) or more, an employee must be paid an allowance for incidentals up to a maximum of $86.42 per week or $17.28 per day in a broken week. (Note: the daily allowance is derived by dividing the weekly rate by 5.)

B. This determination comes into effect on XX November 2021. In accordance with s.165(3) of the Fair Work Act 2009 this determination does not take effect until the start of the first full pay period that starts on or after XX November 2021.

VICE PRESIDENT

ANNEXURE B

Fair Work Act 2009
s.160—Application to vary a modern award to remove ambiguity or uncertainty or correct error

Australian Entertainment Industry Association T/A Live Performance Australia
(AM2021/78)

LIVE PERFORMANCE AWARD 2020
[MA000081]

Application to vary the Live Performance Award 2020.

A. Further to the decision issued by the Full Bench of the Fair Work Commission [[2022] FWCFB 9], the above award is varied as follows:

1. By inserting in clause 2 in alphabetical order the following:

minimum hourly rate means the minimum weekly rate as specified in clause 11—Minimum rates divided by 38 and rounded to the nearest cent.

2. By deleting clause 14.3(g) and inserting the following:

(g) Meals while travelling – one to 4 days

Where the period of travel is 1 to 4 days and the employee is not provided with meals during the period of travel, the employer shall pay the employee a meal allowance of $30.05 for each meal period which occurs during the travel.

3. By deleting clause 14.3(h) and inserting the following:

(h) Meals while travelling – one week (5 working days) or more

Where the period of travel is one week or more and the employee is not provided with meals during the period of travel, the employer shall pay the employee a meal allowance of up to a maximum of $304.81 per week or $60.96 per day in a broken week.

NOTE: The daily allowance is derived by dividing the weekly rate by 5.

4. By deleting clause 14.3(i) and inserting the following:

(i) Incidentals allowance while travelling

When the period of travel is one week (5 working days) or more, an employee must be paid an allowance for incidentals up to a maximum of $86.42 per week or $17.28 per day in a broken week.

NOTE: The daily allowance is derived by dividing the weekly rate by 5.

5. By deleting clauses 21.4 and 21.5 and inserting the following:

21.4 Musicians

(a) All work done by a full-time or part-time musician on a public holiday will be paid at 200% of the minimum hourly rate.

(b) All work done by a casual musician on a public holiday will be paid at 225% of the minimum hourly rate.

21.5 Production and Support staff

(a) Full-time and part-time employees who work on a public holiday, whether part of an ordinary roster or work cycle or not, will be paid 200% of the minimum hourly rate with a minimum payment as for 4 hours.

(b) Casual employees who work on a public holiday will be paid 225% of the minimum hourly rate with a minimum payment as for 4 hours.

NOTE: The public holiday rates for casual employees in clauses 21.4(b) and 21.5(b) have been calculated by adding the casual loading of 25% to the public holiday rate for full-time and part-time employees prescribed by clauses 21.4(a) and 21.5(a) respectively.

6. By deleting clause 44.6(a)(ii) and inserting the following:

(i) Casual employees—225% of the minimum hourly rate with a minimum payment as for 3 hours.

NOTE: The Sunday rate for casual employees has been calculated by adding the casual loading of 25% to the Sunday rate for weekly employees prescribed by clause 44.6(a)(i).

7. By deleting clause 57.3 and inserting the following:

57.3 For each ordinary hour worked, a casual employee must be paid the minimum hourly rate specified in clause 11—Minimum rates, for the relevant classification level, plus a loading of 25% of the minimum hourly rate.

8. By deleting clause 63.4(b) and inserting the following:

(b) A casual employee who starts work on a Sunday will be paid 225% of the minimum hourly rate for all time worked, including any overtime, with a minimum payment for 4 hours.

9. By deleting clause 63.4(c).

10. By re-numbering clause 63.4(d) to 63.4(c).

B. This determination comes into effect on XX February 2022. In accordance with s.165(3) of the Fair Work Act 2009 this 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 XX February 2022.

VICE PRESIDENT