Enterprise agreements in the performing arts sector.

This article is for informational purposes and general commentary only. It does not constitute legal advice and does not create a solicitor-client relationship.

The Live Performance Award 2020 is the floor for most work in the sector. The larger arts companies, the opera, ballet, theatre and symphony companies that employ performers and musicians on a continuing basis, usually operate under an enterprise agreement instead. An enterprise agreement is a negotiated set of pay and conditions that applies at a particular company, and it sits above the award. For a performer or musician offered ongoing work with one of these companies, the enterprise agreement, not the award, is the document that governs the job.

This note explains what an enterprise agreement is, how it is made and approved, how it interacts with the award and the National Employment Standards, and what to look for when you are offered work under one. It is general information about how the system works, not advice on any particular agreement.

What is an enterprise agreement?

An enterprise agreement is an agreement about pay and conditions made at the level of a single business or enterprise, under Part 2-4 of the Fair Work Act 2009 (Cth). It is made between an employer and its employees, and it is voted on by the employees it will cover. Once approved by the Fair Work Commission, it has the force of law for that workplace, and it displaces the modern award as the source of pay and conditions for the employees it covers.

In the arts, enterprise agreements are common at the companies with a permanent or regular workforce. A company orchestra, an opera or ballet company, or a state theatre company will often have an agreement covering its musicians, performers or technical staff, negotiated with the Media, Entertainment and Arts Alliance as the relevant union. The agreement is tailored to how that company actually works, including its season, its rehearsal patterns, touring, and the way it uses casual and continuing staff.

How is an enterprise agreement different from the award?

The award is a one-size safety net for the whole sector. An enterprise agreement is built for one company. That lets it deal with things the award cannot, such as a company's particular season structure, its rehearsal and performance pattern, its touring schedule, and its own classifications of staff. An agreement can set higher rates of pay than the award, and can trade some award conditions for others that suit the workplace, so long as the overall result keeps employees better off.

The main legal limit is that an enterprise agreement cannot leave an employee worse off overall than the award. That is the better off overall test, and it is the heart of how an agreement is approved. The agreement also cannot undercut the National Employment Standards, the legislated minimum entitlements that apply to every employee. An agreement can be more generous than both, and usually is, but it cannot fall below them.

What is the better off overall test?

Before the Fair Work Commission approves an enterprise agreement, it must be satisfied that each employee, and each prospective employee, would be better off overall under the agreement than under the relevant modern award. This is the better off overall test, often called the BOOT, and it comes from section 193 of the Fair Work Act 2009 (Cth). The Commission compares the agreement with the award across the whole package, not term by term. A lower penalty rate can be offset by a higher base rate, for example, so long as the employee comes out ahead overall.

The test matters because arts work is full of unsocial hours, weekend and evening performances, and touring. An agreement that raises the base rate but cuts a penalty can leave a worker worse off in practice if most of their work is at night and on weekends. The Commission looks at the real patterns of work when it applies the test, which is why the union's role in the bargaining is so important. A well-negotiated agreement is better than the award for the way the company actually operates.

How is an enterprise agreement made and approved?

The process has set steps under the Fair Work Act. The employer and the employees, usually through the union, bargain over the terms. Before the vote, the employer must give the employees access to the proposed agreement and explain its terms, and there is a minimum access period of seven days before voting opens. The employees then vote, and the agreement is made if a majority of those who cast a valid vote approve it.

After the vote, the agreement goes to the Fair Work Commission for approval. The Commission checks that it was genuinely agreed to, that it passes the better off overall test, that it does not include unlawful terms, and that it meets the other requirements in section 186 of the Fair Work Act. Only once the Commission approves it does the agreement come into operation. An agreement has a nominal expiry date, which can be up to four years after approval, and the parties usually begin bargaining for a replacement as that date approaches.

What happens when an enterprise agreement expires?

A nominal expiry date is not a hard end. An enterprise agreement continues to operate after its nominal expiry date until it is replaced by a new agreement, or until it is terminated in the limited circumstances the Act allows. That means a company can keep operating under an old agreement while a new one is negotiated. For employees, the practical point is that the conditions do not vanish at the expiry date, but the rates can fall behind award and market movements the longer an old agreement runs.

When bargaining for a replacement agreement is on foot, employees and their union have access to the bargaining framework in the Act, including the ability to seek protected industrial action in some circumstances. That framework is detailed, and the steps have to be followed with care, which is another reason the union's involvement matters in the sector.

What should you check if you are offered work under an enterprise agreement?

First, ask for the agreement itself and read the classification structure. Your pay depends on which classification you fall into, so make sure the role you are offered is being paid at the right level. Second, check the nominal expiry date. An agreement well past its nominal expiry may have rates that have not moved for years. Third, look at how the agreement treats the hours you will actually work, including rehearsals, performances, weekend and evening work, and touring, because that is where the value of an agreement is won or lost.

If you are a member of the Media, Entertainment and Arts Alliance, the union can tell you what the current agreement says and how it compares with the award. If you are offered a document that claims to be an enterprise agreement but has not been approved by the Fair Work Commission, treat it with caution, because an agreement only has legal force once the Commission approves it. Where a lot is at stake, or the document is unclear, get advice before you sign.

Frequently asked.

What is an enterprise agreement?

An enterprise agreement is a set of pay and conditions negotiated at the level of a single business, under Part 2-4 of the Fair Work Act 2009 (Cth). It is voted on by the employees it will cover and, once approved by the Fair Work Commission, it has the force of law for that workplace and replaces the modern award as the source of pay and conditions for those employees.

How is an enterprise agreement different from the Live Performance Award?

The award is a single safety net for the whole live performance sector. An enterprise agreement is built for one company, so it can deal with that company's season, rehearsal and performance patterns, touring and staff classifications. It can set higher pay and trade some conditions for others, as long as employees are better off overall than under the award and the National Employment Standards are not undercut.

What is the better off overall test (BOOT)?

Before approving an agreement, the Fair Work Commission must be satisfied that each employee and each prospective employee would be better off overall than under the relevant award. It comes from section 193 of the Fair Work Act 2009 (Cth). The comparison is across the whole package, so a lower penalty can be offset by a higher base rate, provided the employee comes out ahead overall.

How is an enterprise agreement approved?

The employer and employees, usually through the union, bargain the terms. The employer must give access to the proposed agreement and explain it, with a minimum seven-day access period before voting. Employees vote, and a majority of valid votes makes the agreement. It then goes to the Fair Work Commission, which must be satisfied it was genuinely agreed, passes the better off overall test and meets the requirements in section 186, before it comes into operation.

What happens when an enterprise agreement passes its nominal expiry date?

It keeps operating. An enterprise agreement continues after its nominal expiry date until a new agreement replaces it or it is terminated in the limited circumstances the Act allows. The conditions do not disappear, but rates in an old agreement can fall behind award and market movements the longer it runs without being replaced.

Who negotiates enterprise agreements in the arts?

At the larger arts companies, agreements are usually negotiated between the company and its employees, with the Media, Entertainment and Arts Alliance acting as the union for performers, musicians and some crew. Members can ask the union what their current agreement says and how it compares with the award.

If you are a performer, producer, venue, or independent practitioner and this raises a question about your own situation, Aaron Kernaghan and the team at Brady & Associates Lawyers can give you tailored guidance. Call 0421 717 019 or contact the firm.

This article is for informational purposes and general commentary only. It does not constitute legal advice and does not create a solicitor-client relationship. It reflects the law in Australia as at 3 October 2026, with a focus on Commonwealth law and New South Wales and ACT practice. The law changes and applies differently to every set of facts. Written by Aaron Kernaghan, Brady & Associates Lawyers.

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