Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 6, Item 4 - Application to make a modern award to replace an enterprise instrument.

METROPOLITAN DAILY NEWSPAPERS REDUNDANCY AWARD 1999

METROPOLITAN NEWSPAPERS (SOUTH AUSTRALIA AND TASMANIA) PRINTING AWARD 2003

CHULLORA PRINTING AWARD 2001

QUEENSLAND NEWSPAPERS PTY LTD PRINTING (MURARRIE) AWARD 2000

NORTHERN TERRITORY NEWS AWARD 2003

PRINTING INDUSTRY HERALD AND WEEKLY TIMES PRODUCTION AWARD 2003

Application by Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and News Limited and others for a modern enterprise award for Metropolitan Daily Newspapers Redundancy Award 1999, Metropolitan Newspapers (South Australian and Tasmania) printing award 2003, Chullora Printing award 2001, Queensland Newspapers Pty Ltd printing (Murarrie) award 2000, Northern Territory News award 2003, Printing Industry Herald and Weekly Times Production Award 2003 - Fair Work (Transitional Provisions and Consequential Amendments Act 2009 Schedule 6 sub-items 4(5,), 6(6), Fair Work Act 2009 s.132.

Introduction

[1] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and News Limited and others have made an application under item 4 of Schedule 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) for the Fair Work Commission to make a modern enterprise award to replace the Metropolitan Daily Newspapers Redundancy Award 1999, Metropolitan Newspapers (South Australian and Tasmania) Printing Award 2003, Chullora Printing Award 2001, Queensland Newspapers Pty Ltd Printing (Murarrie) Award 2000, Northern Territory News Award 2003 (the awards), and the Printing Industry Herald and Weekly Times Production Award 2003.

[2] The awards apply to the printing operations for publications within the News Ltd group of companies.

[3] At the hearings of this matter Mr M Nguyen appeared for the AMWU and Mr K G Bennett of counsel and Mr A Biocca appeared for News Limited.

The Legislative Task

[4] The role of the Commission in an application to make a modern enterprise award is governed by sub-item 4(5) of Schedule 6 to the Transitional Act which provides:

(5)       In deciding whether or not to make a modern enterprise award, and in determining the content of that award, the FWC must take into account the following:

(a)  the circumstances that led to the making of the enterprise instrument rather than an instrument of more general application;

(b)  whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process;

(c)  the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process);

(d)  the terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument;

(e)  the extent to which the enterprise instrument provides enterprise-specific terms and conditions of employment;

(f)  the likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in paragraph (b), of a decision to make, or not make, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;

(g)  the views of the persons covered by the enterprise instrument;

(h)  any other matter prescribed by the regulations.

[5] It is also necessary to consider the modern enterprise awards objective: Item 6 of Schedule 6 of the Transitional Act. This is a legislative requirement for the Commission to recognise, in addition to the modern awards objective and the minimum wage objective generally, that modern enterprise awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises. The modern awards objective, set out in s.134 of the Fair Work Act 2009 (the Act) is as follows:

“134 The modern awards objective

What is the modern awards objective?

(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(b) the need to encourage collective bargaining; and

(c) the need to promote social inclusion through increased workforce participation; and

(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and

(da) the need to provide additional remuneration for:

(i) employees working overtime; or

(ii) employees working unsocial, irregular or unpredictable hours; or

(iii) employees working on weekends or public holidays; or

(iv) employees working shifts; and

(e) the principle of equal remuneration for work of equal or comparable value; and

(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.”

[6] We propose to consider initially whether or not to make a modern enterprise award by reference to the above considerations in relation to the circumstances of this case.

The circumstances that led to the making of the enterprise instrument rather than an instrument of more general application: Item 4 (5)(a)

[7] News Limited grew its newspaper business in Australia through progressive acquisition of existing newspaper businesses from the late 1960s. At the time of the acquisitions, the terms and conditions of employment were governed by unregistered agreements and understandings between the particular publishing company and its employees. A feature of the operations was the demands of printing a daily metropolitan newspaper. These circumstances led to tailored industrial arrangements to suit the needs of the relevant businesses. Over subsequent years these unregistered agreements were formalised into site based enterprise awards. These processes were undertaken with the agreement of the employees and their representatives. Federal industry awards have never applied to the particular operations.

[8] In the 1990s, News Limited introduced fundamentally different technology into its printing operations. It moved away from traditional printing at locations co-located with non printing newspaper staff to state of the art print sites at Adelaide, Melbourne, Sydney and Brisbane. The enterprise awards were negotiated and agreed in relation to these new print sites. They reflected classifications, terms and conditions uniquely applying to the sites in question. Subsequently stand alone print sites were established in Hobart and Darwin. In contrast to the industrially volatile introduction of similar changes at the print site at Wapping in the UK, the changes were implemented with a significant amount of cooperation from the AMWU and the ACTU.

Whether there is a modern award that would, but for the enterprise instrument, cover the persons who are covered by the instrument: Item 4 (5) (b)

[9] The Graphic Arts, Printing and Publishing Award 2010 (Graphic Arts Award) applies generally to the printing and publishing industries. It expressly includes the production of non-daily and regional daily newspapers but conspicuously does not expressly apply to the production of metropolitan dailies. This omission led News Limited to refrain from any involvement in the making of the Graphic Arts Award. When the Graphic Arts Award was made, the award modernisation Full Bench noted that changes had not been made to reflect coverage of metropolitan newspapers. The particular shift working arrangements and classifications developed for metropolitan dailies are not reflected in the Graphic Arts Award.

The content, or likely content, of the modern award referred to in paragraph (b): Item 4 (5)(c)

[10] Given its history, the Graphic Arts Award does not address conditions applicable to metropolitan daily newspapers. If a modern enterprise award is not made covering the News Limited publishing operations, variations would need to be considered to the industry award to ensure that it provides an appropriate safety net.

The terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument: Item 4 (5)(d)

[11] News Limited is the major publisher of metropolitan daily newspapers in Australia. It prints those newspapers at stand alone print sites. Other publishers of metropolitan daily newspapers do not operate in such a manner. There are presently no other print centres dedicated to the production of metropolitan daily newspapers. The industry award was developed with the intention of covering the other operations.

[12] For the most part the terms of the industry award applying to the printing industry are reflected in the News Limited enterprise awards, which are detailed and comprehensive. In some respects the benefits in the enterprise awards are less beneficial to employees compared to the industry award. For example shift allowances of 17.5% for afternoon and night shift are less than the rate in the industry award. Weekend penalties are also lower. The annual leave entitlement is also lower.

[13] Some other entitlements, such as casual loading, are higher in the existing enterprise awards. In other respects, such as redundancy pay, it is proposed that the new multi site award would contain entitlements for employees that are more advantageous than the industry award. A full comparison of the differences was provided in supplementary submissions filed on behalf of News Limited.

The extent to which the enterprise instrument provides enterprise-specific terms and conditions of employment: Item 4 (5)(e)

[14] As noted above, there are a range of differences between the News Limited awards and the modern industry award. Some of those differences concern entitlements for the same circumstances, such as the quantum of annual leave. Other differences concern working arrangements such as the definition of afternoon and night shifts. It is clear that the differences are wide ranging and quite extensive.

[15] This can be explained by the circumstance that metropolitan daily newspaper publishing, as a subset of the general publishing industry, was not intended to be covered by the industry award and the terms of the industry award were determined without regard to the terms of the enterprise awards applying to metropolitan daily newspaper publishing. News Limited submits that the terms of the industry award are foreign to metropolitan daily newspapers. Further, the operations of the News Limited print sites are unique in the sense that there are no other print centres dedicated to the production of metropolitan newspapers.

[16] It follows, in our view, that the terms of the enterprise awards can be regarded as enterprise specific terms, because they have been uniquely tailored to the circumstances of metropolitan newspaper production over many years of their operation.

The likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in paragraph (b), of a decision to make, or not make, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons: Item 4 (5)(f)

[17] Employees covered by the enterprise awards are covered by enterprise agreements which operate from, and substantially incorporate, the enterprise award terms. There would be no immediate impact on the employer or employees from the termination of the enterprise awards. However, the need to ensure that the industry award is appropriate for metropolitan daily newspapers and to participate in ongoing reviews of the industry award is alleged by News Limited to impose an unnecessary regulatory burden, which would not arise if a new modern enterprise award is made.

The views of the persons covered by the enterprise instrument: Item 4 (5)(g)

[18] News Limited and the AMWU support the making of a modern enterprise award. In our view it can be assumed that to the extent that they have views on the matter, employees also generally support the making of a new modern enterprise award.

Any other matter prescribed by the regulations: Item 4 (5) (h)

[19] There are no other matters prescribed in the regulations.

Modern Enterprise Awards Objective

[20] The need to provide for a fair and relevant award safety net and the capacity to incorporate terms in enterprise awards tailored to the needs of the enterprise can be said in some respects to provide support for the making of a modern enterprise award applying to metropolitan daily newspaper production by News Limited companies. In other respects the segregation of parts of the industry for the purposes of an award safety net can be said to add inappropriate complexity and inconsistencies to the award system and the basic safety net entitlements of employees in the publishing industry.

Should a modern Enterprise Award be made?

[21] In considering the above factors we have decided, on balance, to make modern enterprise awards applying to the News Limited daily metropolitan newspapers print sites. The unique history of the current awards, the unique nature of dedicated metropolitan daily newspaper production at News Limited print sites, the large number of enterprise specific provisions in the current instruments and the omission of this segment of the printing industry from the industry award modernisation process collectively amounts to a strong case for continuing the enterprise award approach.

[22] The AMWU seeks to make five modern enterprise awards to replace the current six News Limited enterprise instruments. It submits that if this is not possible, then separate awards should be made reflecting the scope of current instruments. There is a question whether fewer enterprise awards can be made to replace a larger number of enterprise instruments arising from the wording of Item 4 of Schedule 6 and the expression of an existing enterprise instrument and enterprise award in the singular.

[23] This question has not as yet been considered by a Full Bench from contested proceedings or otherwise. In our view Item 4 should not be construed as precluding the making of a single enterprise award to replace multiple enterprise instruments. We rely in particular on s.23 of the Acts Interpretation Act 1901 which provides that words expressed in legislation in the singular number include the plural. Further, we are not aware of any policy reason why the replacement of multiple instruments by one enterprise instrument should be precluded from the options available to the Commission. Indeed the reduction in the number of awards is a central objective of the award modernisation process. As this matter has not been subject to detailed submissions, we will have regard to any further submissions on the matter received prior to finalising the terms of the award.

[24] A member of the bench will convene a conference of the parties regarding the terms of the enterprise award and the award will be determined and made by the Full Bench arising from that conference.

VICE PRESIDENT

Appearances:

Mr M Nguyen, for AMWU.

Mr K G Bennett of counsel and Mr A Biocca for News Limited .

Hearing details:

2014.

Melbourne.

23 June, 19 August.

Final written submissions:

News Limited on 8 September 2014.

AMWU on 17 September 2014.

Printed by authority of the Commonwealth Government Printer

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