FWC proposes a new “Arts and Culture Sector” modern award

The Fair Work Commission (Commission) is seeking the views of interested parties in relation to the proposed creation of a new modern award for the arts and culture sector. The purpose of the proposed award is to address potential overlapping award coverage and coverage gaps for employees working in the sector.

The Commission has published a Discussion Paper on the proposed award which details a list of questions for interested parties. Interested parties will have until 4 December 2023 to make submissions to the Commission, followed by a period of consultation extending to 2 February 2024.

Background

On 30 January 2023, the Federal Government released Australia’s National Cultural Policy, Revive. The policy covered matters ranging from the recognition of First Nations culture, art and stories, the provision of cultural infrastructure, to supporting artists as creators. A key action item arising from the policy was for the Government to consider modern award coverage and minimum standards for the arts and culture sector. The policy stated, in part, significant issues that workers in the arts and culture sector face:

Intermittent and insecure working arrangements mean that many [artists] may not have access to minimum employment standards. In turn, many creatives rely on holding multiple jobs in order to survive, which can prove to be a disincentive to pursuing a career in the sector.

On 12 September 2023, the Commission received a request from Workplace Relations Minister, the Hon. Tony Burke, to initiate a review of modern awards made by the Commission (Modern Award Review). One of the four key priorities of the Modern Award Review was to investigate the existing award coverage and minimum standards for the arts and culture sector. The Commission has since commenced the Modern Award Review and released a statement setting out the review timetable.

In connection with Modern Award Review, the Commission published a Discussion Paper on 6 November 2023. It has been prepared to assist interested parties in understanding the following topics:

• the existing modern award coverage;
• the minimum standards within the arts and culture sector; and
• potential coverage gaps.

What does this mean for the arts and culture sector?

The new modern award would set minimum safety net entitlements for employees falling within its coverage provided another industrial instrument (such as a different award or enterprise agreement) does not apply to them.

Currently, there is a patchwork of awards that may potentially cover employees in the sector and the discussion paper identifies thirteen awards with possible award coverage. This is owing to the breadth of the sector and the different businesses and organisations within it.

The types of entitlements usually provided by application of a modern award include:

• minimum rates, payment of wages, allowances, overtime rates and superannuation;
• flexible work arrangements;
• annual, personal/carer’s, and family and domestic violence leave;
• termination of employment and redundancy; and
• consultation about major workplace changes and dispute resolution.

Employers in the arts and culture sector should be aware that a contravention of a modern award could result in civil penalties being awarded against them.[1] On one hand, if the Commission decides to create an award, such employers will need to have systems in place to ensure compliance, including updating their payroll systems and contracts of employment. On the other hand, there may be multiple instruments that currently apply to their employees and, in that case the employer must comply with each instrument applicable to each employee.

The Modern Award Review presents an opportunity for the sector to make submissions on the matters canvassed in the Discussion Paper and shape the industrial regulation of the sector. To that extent, it presents an opportunity for interested parties to ‘control the narrative’ in this space.

Submissions must be lodged by 4 December 2023.

Conclusion

Gadens is well-positioned to assist in the preparation of submissions to the Commission and can provide advice on all aspects of employment and industrial relations matters.

To enquire as to how Gadens may be able to assist, please contact Jonathon Hadley in Brisbane by email jonathon.hadley@gadens.com or phone +61 7 3231 1653.

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Authored by:
Jonathon Hadley, Partner
Blade Atton, Associate
Angela Marra, Solicitor

[1] Fair Work Act 2009 (Cth) s 45 – 46.