[2017] FWCFB 3135
The attached document replaces the document previously issued with the above code on 9 June 2017.
At [24] and [68] replacing the words “This provision applies to a daily newspaper office instead of clause 37.4” with “Where there is an agreement between an employer and an employee under this clause 37.2, this clause 37.2 applies to the employee instead of clause 37.4.”
Suzie Kairouz
Associate to Deputy President
16 June 2017
| [2017] FWCFB 3135 |
| FAIR WORK COMMISSION |
|
DECISION |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 YEARLY REVIEW OF MODERN
AWARDS – GRAPHIC ARTS, PRINTING AND PUBLISHING AWARD 2010
(AM2016/33)
|
DEPUTY PRESIDENT GOSTENCNIK |
MELBOURNE, 9 JUNE 2017 |
Four yearly review of modern awards – Graphic Arts, Printing and Publishing Award 2010 - Fair Work Act 2009 ss.134, 138, 156 – Coverage of metropolitan daily newspapers – annual leave – jury service – redundancy – personal leave.
Introduction
[1] In the 4 yearly review of modern awards—Group 2 Awards 1 a Full Bench of the Commission identified, inter alia, the following issue as outstanding in relation to the Graphic Arts, Printing and Publishing Award 2010 2 (Award):
“[95] There remain four outstanding issues in relation to this Award.
. . .
(4) Coverage of metropolitan daily newspapers:
The AMWU submits that daily metropolitan newspapers are not covered by the
Award because its coverage is relevantly confined to the “production
of non-daily and regional daily newspapers” (clause 4.9 of the current
Award and clause 3.2(n) of the exposure draft). It proposes that
the coverage of the Award be amended to extend to daily metropolitan newspapers.
Fairfax Media, West Australian Newspapers Limited (WAN) and ColourPress
Pty Ltd submit that daily metropolitans are covered by the Award, although
WAN and ColourPress accept there is some ambiguity in the way the coverage
clause is worded.” 3
[Endnotes omitted]
[2] The Full Bench also observed that:
“[96] . . . In relation to the fourth issue, we accept in principle that it should be made clear that the Award’s coverage extends to metropolitan daily newspapers. However that change or clarification of coverage may require consequential changes to various other provisions of the Award having regard to the terms of the pre-2009 industrial instruments which applied. A number of parties have adverted to the need for this wider consideration to arise. Accordingly we will also refer this issue to the separately constituted Full Bench for finalisation.” 4
[3] Pursuant to s.618 of the Fair Work Act 2009 (Act) and by written instrument dated 7 November 2016, the President constituted this Full Bench. Pursuant to s.582 and by the same instrument, the President directed that we hear and determine the issue identified in the above extract.
[4] In furtherance of the issue referred to this Full Bench, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) seeks to vary the Award by: 5
Daily metropolitan newspaper office is any daily newspaper office where the newspaper is a metropolitan masthead
16.7 Metropolitan Daily Newspapers Redundancy
An employee who is made redundant will be paid redundancy pay as follows with a minimum of four weeks’ pay:
(a) for each year of service of the employee up to and including ten years of service, four weeks’ pay and pro rata for each additional completed quarter year of service; and
(b) for each year of service in excess of ten years’ service, three weeks’ pay and pro rata for each additional completed quarter year of service.
38.1 Metropolitan Daily Newspaper employees
(a) In each calendar year a worker with not less than six months continuous service is entitled to be paid sick leave on the following basis;
(i) full pay for the first twenty working days;
(ii) half pay for the second twenty working
days; and
(iii) quarter pay for the third
twenty working days.
(a) Where, in any year, a worker is allowed, as sick leave on full pay, less than the period prescribed in paragraph (a) of subclause (3) of this clause, one half of the unused portion of such sick leave shall be carried forward as accumulated sick leave (full pay) and shall be available to the worker for a period of five years from the end of the year in which it accrued.
(b) A worker with more than three but less than six months continuous service is entitled to paid sick leave on the following basis:
(i) full pay for the first ten working days;
(ii) half pay for the second ten working
days;
(iii) quarter pay for the third ten
working days.
(a) A worker with less than three months continuous service is entitled to paid sick leave on the basis of one day's pay for each completed month of service.
39.1 Jury Service Metropolitan Daily Newspaper
(a) An employee required to attend for jury service during the employee's ordinary working hours shall be reimbursed by the employer an amount equal to the difference between the amount paid in respect of his attendance for such jury service and the amount of wage the employee would have received in respect of the ordinary time the employee would have worked had the employee not been on jury service.
(b) The employee shall notify the employer as soon as possible of the date on which the employee is required to attend for jury service. Further, the employee shall provide the employer with proof of the attendance, the duration of such attendance and the amount received in respect of such jury service.
[5] Save for the metropolitan daily newspapers coverage and the shiftworkers variations, the AMWU’s other claims are opposed by various employer interests. These interests were represented by Fairfax Media Ltd (Fairfax), which is the holding company of the Fairfax Media Group, which in turn publishes a variety of daily and non-daily newspapers; Western Australian Newspapers Ltd (WAN), which publishes The West Australian in Perth; ColourPress Pty Ltd (ColourPress), which is responsible for the heat set printing and publishing of the coloured inserts included in The West Australian and which, together with WAN is a wholly owned subsidiary of Seven West Media Ltd; Australian Business Industrial (ABI) and the NSW Business Chamber Ltd (NSWBC) both of which represent various employers operating in the graphic arts, printing and publishing industry, including News Limited and its related entities. ABI is an organisation registered under the Fair Work (Registered Organisations) Act 2009 (FWRO Act) while the NSWBC is a recognised State registered association pursuant to schedule 2 of the FWRO Act.
[6] For the reasons which follow, we have decided to vary the Award to clarify its coverage of metropolitan daily newspapers and to amend clause 37.2 of the Award to deal with the current exclusion of a shiftworker, but otherwise we reject the additional claims advanced by the AMWU.
Consideration
Coverage
[7] Clause 4 of the Award relevantly deals with coverage as follows:
“4. Coverage
4.1 This industry and occupational award
covers employers throughout Australia in the graphic arts, printing, publishing
and associated industries and occupations and their employees in the classifications
listed in clause 17—Wage rates and classification structure and Schedule
B—Classification Definitions to the exclusion of any other modern award.
…
4.9
Graphic arts, printing, publishing and associated industries and occupations
means the following industries, parts of industries and occupations:
(a) composing, reading, electrotyping,
stereotyping, letterpress machining, lithographic machining, lithographing,
screen printing, printing of all classes, slug-casting or type-casting machine
attending and adjusting and/or repairing;
(b) type-founding;
(c) engraving, process engraving and/or
photo engraving;
(d) commercial
and/or lithographic designing, writing and/or drawing;
(e) publishing;
(f) despatching which is incidental
to the industries or parts of industries covered by the award;
(g) book-binding, binding, paper
ruling and/or paper cutting;
(h) paper making, paper working, calico and/or paper bag making;
(i) envelope making, stationery
making and/or paper products working;
(j) embossing;
(k) cardboard box making, carton making
(including the making of any kind of boxes and/or containers of paper and/or
cardboard used alone or in combination with any other material or materials);
(l) mailing houses, including
(without limiting the generality or ordinary meaning of the phrase) folding,
paging, numbering, perforating, gathering, collating, inter-leaving, wrapping,
sealing, addressing, mailing, despatching, stamping, inserting, security
paper working, wire stapling, envelope working, direct mail systems working,
addressograph work, paper products work and machine work in or in connection
with enveloping, sealing, automatic/computer addressing and/or wrapping;
(m) creation of designs, concepts
or layouts used or intended to be used in the advertising or marketing of
commodities or service or for other uses in or in connection with the industry
of commercial and industrial art, the execution of finished art, that is,
the preparation of individual components of finished art (including illustrations,
borders, retouching of photographs, photographic reproportioning and lettering
by hand or transfer) and the final assembly of these components (including
the paste up of reproduction type, profiling illustrations, key line drawings
etc);
(n) production of non-daily
and regional daily newspapers, which includes any business, trade, manufacture,
undertaking, calling, service, employment, handicraft or industrial occupation
in the printing and any kindred industries;
(o) commercial and industrial art within
the production described in clause 4.9(n);
(p) the composing or imposition or assembly
of matter which is to be printed and the transfer of images by use of cameras
or scanners or transparency duplications to obtain a relief of planographic
or intaglio formation for printing; and
(q) plastics manufacturing or any of
the processes of or incidental to the manufacturing of plastics or of goods
manufactured therefrom or substitutes therefore but only to the extent that
such manufacturing or processes are incidental to printing.”
[8] The AMWU submits that the Award currently makes no specific reference to metropolitan daily newspapers so it is not providing a “fair and relevant minimum safety net of terms and conditions”. 6 This, according to the AMWU, means affected employees are either award-free or subject to ambiguous coverage.7
[9] The Award expressly covers non-daily newspaper offices and regional daily newspaper offices but not daily metropolitan newspapers. The AMWU contends that this may be because daily metropolitan newspapers had a limited role during award modernisation. It contends that the reference to “printing of all classes” in the Award is insufficient to provide adequate award coverage to daily metropolitan newspapers. It maintains that generally specific coverage overrides general provisions – that is, metropolitan daily newspapers were excluded because of the specific inclusion of regional daily newspapers and non-daily newspapers.
[10] The AMWU notes that the Journalists Published Media Award 2010 8 includes a stand-alone definition of “metropolitan daily newspapers” and does not simply rely on the definition of “published media industry”.9
[11] The AMWU relies on the decision in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), Herald And Weekly Times Pty Limited and Others 10 (News Limited) which it contends, sheds light on the coverage of the Award. The decision in News Limited dealt with applications pursuant to Item 4 of Schedule 6 of the Fair Work (Transitional and Consequential Amendments) Act 2009 to create Modern Enterprise Awards covering the printing and publishing operations of News Limited.
[12] Ultimately, the decision in News Limited resulted in the making of several modern enterprise awards covering a number of News Limited’s operations. In the course of considering the applications, the Full Bench in News Limited made the following observations:
“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.” 11
[13] The Full Bench in News Limited also noted that:
“[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.” 12
[14] The AMWU submits that both Fairfax and WAN operate in the same industry as News Limited, and that the principles in News Limited are equally applicable to Fairfax and WAN'’s printing and publishing operations. 13 The AMWU submits that the decision in News Limited confirms the absence of coverage of metropolitan daily newspapers and that it is difficult to see how other industry participants would have been covered by the modern award, where News Limited was not.14
[15] The AMWU’s draft determination reflects the coverage changes it seeks including: replacing all references to “regional daily newspaper” with “daily newspaper” and adding a new definition of “Daily metropolitan newspaper office” which is “any daily newspaper office where the newspaper is a metropolitan masthead”. 15
[16] Fairfax agrees with the variation sought by the AMWU to replace references to “regional daily newspapers” with “daily newspapers”.
[17] Fairfax submits that:
➣ the variation is about form rather than substance. Unlike the AMWU, Fairfax submits that the daily newspapers variation merely clarifies the current arrangements under the Award 16 because the Award already covers employers who are engaged in “printing of all classes” and “publishing”.17 It maintains that the lack of explicit references to metropolitan daily newspapers is incongruous, but that does not form a basis to read down the breadth of the phrases “printing of all classes” and “publishing”18;
➣ the Award has covered the Fairfax Group since the respective applicable enterprise awards were terminated in 2014. 19 It contends that any construction of the Award “which excludes metropolitan newspapers from the definition would require the imposition of a limitation which does not flow from its words”.20 In order to avoid award coverage, the Commission would have to ‘read in’ additional words, which Fairfax contends, would not be appropriate unless a high threshold was met21; and
➣ the Commission should adopt an interpretation that is consistent with the words the Award drafters used. If an alternative interpretation is preferred, the Commission should try and provide printing employees with award coverage rather than making them award free. 22
[18] WAN and ColourPress contest the AMWU’s assertion that metropolitan daily newspaper employees are potentially award-free. They submit that they consider themselves covered by the Award with respect to their printing and publishing employees. 23
[19] WAN and ColourPress contend that in News Limited, the Full Bench did not conclusively determine that the Award did not cover metropolitan daily newspapers. 24 Rather, they say the Full Bench concluded that the Award “…does not expressly apply to the production of metropolitan dailies”.25 However, both agree with the AMWU’s proposal to clarify that coverage of the Award includes metropolitan daily newspapers.26 The variation would replace all references to “regional daily newspaper” with “daily newspaper” and insert a new definition of “daily metropolitan newspaper office”.27
[20] ABI and the NSWBC submit that daily metropolitan newspapers have been covered by the Award since it was made. 28 They contend that there are elements in clause 4.9 that clearly cover daily metropolitan newspapers, specifically clause 4.9(a) which refers to printing of all classes.29 They concede that clause 4.9(n) makes no reference to metropolitan daily newspapers, but say that that does not mean that an employer or an employee cannot otherwise be covered by any of the other limbs of clause 4.9 of the Award.30
[21] It is unnecessary for us to form a concluded view as to whether the Award currently covers metropolitan daily newspapers. It is sufficient to observe that there is a level of ambiguity or uncertainty as to that coverage as is readily apparent from the competing contentions of the various interests appearing before us and which we have endeavoured to summarise above. The competing contentions are arguable. All interested parties agree that the Award should cover metropolitan daily newspapers. The ambiguity or uncertainty should therefore be resolved and as the employer interests contend existing coverage and do not oppose the Award being varied to make clear that the Award’s coverage extends to metropolitan daily newspapers as proposed by the AMWU, we propose the Award be varied accordingly. We consider that the variation achieves the modern awards objective by creating a simpler and more readily understood fair and relevant safety net.
Clause 37.2 and Shiftworkers
[22] Clause 37 of the Award deals with annual leave. Clause 37.2 provides as follows:
“37.2 Notwithstanding clause 33.5, employees engaged in a regional daily newspaper office, in circumstances where they work the prescribed public holidays, may, by agreement between the employer and an employee or employees, be credited with an extra two weeks and three days’ annual leave instead of any penalty provision as provided for by clauses 41.3 or 41.4. This provision does not apply to a shiftworker as defined in clause 37.4.”
[23] The AMWU proposes to vary this provision so as to extend the option for relevant employees to agree with their employer to receive an extra two weeks and three days’ annual leave instead of penalty payments for public holiday work to shiftworkers for which provision is made elsewhere in the Award.
[24] Fairfax agrees with the AMWU’s proposal to vary clause 37.2 of the Award. Fairfax proposes the following wording: 1
Notwithstanding clause 33.5, employees engaged in a
regional daily newspaper office, in circumstances where they work the prescribed public holidays, may, by agreement between the employer and an employee or employees, be credited with an extra two weeks and three days’ annual leave instead of any penalty provision as provided for by clauses 41.3 or 41.4.
This provision does not apply to a shiftworker as defined in clause 37.4
Where there is an agreement between an employer and an employee under this clause 37.2, this clause 37.2 applies to the employee instead of clause 37.4.
[25] The current clause excludes “shiftworker” from the application of this annual leave provision. This means that dayworkers can accrue up to six weeks and three days of annual leave, but shiftworkers can only accrue five weeks of annual leave. 32
[26] The AMWU appears to agree with the Fairfax’s proposal. 33
[27] We can see no reason why a shiftworker and his or her employer should be excluded from this flexibility option under the Award. We consider that it is necessary to make the variation to ensure that the Award provides a fair and relevant safety net. The variation as proposed in the Fairfax submission reproduced above will be made.
Redundancy, sick leave and jury service claims
[28] As we earlier noted, the AMWU draft determination proposes variations to the Award by adding daily metropolitan newspaper specific entitlements for redundancy, sick leave and jury service. 34
[29] The AMWU contends that there is a clear standard of redundancy entitlements across the metropolitan daily newspaper awards that provide for four weeks’ pay for each year of service up to ten years, after which redundancy pay increases by three weeks’ pay for each additional year of service. 35
[30] It said that there is also a standard for personal leave of 20 days at full pay, tapering off at half pay for the next 20 days and quarter pay for the next 20 days, which appears in the award that applies to WAN. This standard did not exist for the Fairfax awards. However, it is a standard that exists within two of the four News Limited enterprise awards. 36
[31] The AMWU also maintains that there is a clear standard for jury service that ensures no loss of pay regardless of how long the duration of the jury service, which is superior to the NES, and should be retained. 37
[32] The AMWU submits that:
➣ clarifying the metropolitan daily newspaper coverage is important to ensure that entitlements which were historically won by employees working in that industry are not lost. 38 The AMWU also submits that enterprise bargaining would be better facilitated by the inclusion of award coverage and commensurate entitlements for daily metropolitan newspapers.39 It says that clarifying the coverage and commensurate entitlements would ensure that there is an appropriate vehicle for the Better Off Overall Test40; and
➣ the cost impact on employers would be neutral. Employers like WAN and Fairfax are already award-covered. 41 It contends that the proposed draft determination would ensure that the Award provides for a fair and relevant minimum safety net.42
[33] The AMWU join issue with the view taken by the employer interests represented in these proceedings (to which we later refer) about the effect of the Award Modernisation Decision 43 on its jury service make-up pay claim. The AMWU contends that the decision provided an in-principle position and cannot be taken as establishing a standard for all modern awards.44 The AMWU notes that the Full Bench in the Award Modernisation Decision did not intend to completely rule out jury service make-up pay because it subsequently inserted a clause for “Reimbursement for jury service” in the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award).45
[34] The AMWU submits further that:
➣ the employer interests represented in these proceedings acknowledged that there was a standard for jury service make-up pay in daily metropolitan newspapers and that safety net should continue. 46 It submits that there is an industry standard for redundancy in the pre-modern awards and the current enterprise awards. It cited the Printing (West Australian Newspapers Limited, Guaranteed Employment and Voluntary Retirement) Award47 (WAN Award) and the Metropolitan Daily Newspapers Redundancy Award 199948 (Metropolitan Award);
➣ the WAN Award sought to prioritise finding suitable employment for employees over forced redundancies. 49 The AMWU further submits that the Metropolitan Award applied to all the employees at five News Corp entities;
➣ the Commission should not completely ignore the entitlements which exist in the industry, particularly where a large part of the industry was covered by a particular award. 50 In establishing industry terms and conditions, the Commission should consider the industry standard.51 It contends that the employer interests represented in these proceedings currently use the same redundancy standard that the AMWU is seeking to insert.52 They assert that all metropolitan daily newspapers provide the industry standard for redundancy53; and
➣ News Corp has sought to avoid award provisions by locating employees at sites that are not covered by the standard employment provisions and the Commission should not allow that evasion. 54 The AMWU concedes that the industry standard regarding personal leave is less common but says there are a number of sites where the industry standard applies.55
[35] The AMWU also points to the impact of a 24/7 roster on health and well-being and the resulting higher standards of personal leave that have been negotiated. 56
[36] Fairfax opposes each of the variations concerning redundancy, sick leave and jury service because the proposals sought would amount to a substantial change to the existing safety net. 57 Fairfax describes the AMWU’s claims as an attempt to “re-animate the most beneficial provisions in a suite of enterprise awards which it had every opportunity to seek to modernise”.58
[37] Fairfax submits that, contrary to the AMWU’s submission, “the role of a modern award is not to embody a bargain in the mold [sic] of a pre-modern consent award; it is to provide a fair and relevant safety net which should, among other things, encourage enterprise bargaining”. 59 Fairfax maintains that the AMWU has sought to insert a new severance pay provision on the basis that it was previously a standard entitlement across the industry. However, on Fairfax’s reading of the pre-reform awards, there was only one metropolitan daily newspaper (The Canberra Times) which provided that redundancy entitlement.60
[38] In addition to being an uncommon feature of pre-reform awards, Fairfax submits that a new redundancy model would constitute an industry-specific redundancy scheme, which is not permitted because in some instances it may be less beneficial than the NES. 61
[39] As to the AMWU’s:
➣ claim to vary the sick leave entitlements, Fairfaix points out that the proposal would increase sick leave entitlements to 35 days per year, which is greater than the NES entitlement. As to the AMWU’s claim that the variation is consistent with pre-reform award provisions, Fairfax submits that none of the relevant pre-reform awards contain similar provisions 62;
➣submission that the additional sick leave will assist employees who suffer a detriment because of shiftwork, Fairfax submits that in cases where the Commission has previously sought to remedy the impacts of shiftwork it has been done through additional annual leave. Fairfax also notes that AMWU’s claim is not limited to shiftworkers. It notes that other industries where shiftwork is the norm do not supplement the personal leave entitlements in the NES 63; and
➣ proposal to supplement the community service leave provision in the NES by requiring that employers pay employees required for jury service the difference between their allowance and their usual wage, 64 Fairfax acknowledged that uncapped jury service pay was indeed a feature of each of the relevant pre-reform awards. However, Fairfax characterised the AMWU’s claim as an attempt to re-agitate a claim that was rejected by the Award Modernisation Decision in 2008.65 Fairfax submits that the Award Modernisation Decision should be followed.
[40] Fairfax concluded that the Commission should make the “daily newspaper” and annual leave variations but should reject the NES supplementation claims. 66
[41] WAN and ColourPress opposes the AMWU’s proposal to amend the Award to provide additional entitlements to metropolitan daily newspaper employees. 67 They submit that it is inappropriate to incorporate specific entitlements from now terminated instruments into the Award in circumstances where the Commission has indicated these instruments have been subsumed by a modern award.68 They argue that the variation would significantly change the safety net.69
[42] WAN and ColourPress highlight that the proposed additional entitlements are well in excess of comparable provisions in other modern awards. They maintain that the AMWU failed to provide any reason why metropolitan daily newspaper employees are distinct from, and should be treated differently to, regional daily newspaper employees and employees under other modern awards. 70
[43] WAN and ColourPress dispute that there was a “‘clear standard’ of redundancy entitlements across the ‘metropolitan daily newspaper awards’”. 71 They submit that the AMWU has not established how the pre-modern awards provided a standard of redundancy entitlements across metropolitan daily newspaper operations.72 Of these three pre-modern awards, only one provided for the proposed redundancy entitlements, and this was only in relation to voluntary redundancy.73
[44] WAN and ColourPress submit that any redundancy 74 or personal leave75 entitlements in the News Limited enterprise awards are specific to those businesses and reflect the unique history and nature of metropolitan daily newspaper production at News Limited.76 They say that the AMWU has failed to provide any arguments or evidence to support the proposition that the entitlements in the News Limited enterprise awards are appropriate for a safety net award.
[45] WAN and ColourPress also oppose the proposal for additional sick leave for “employees who consistently work night shift or intermediate shift in order to ensure newspaper production.” 77 They contend that the variation would have a significant flow-on effect to a large number of other industries who engage shiftworkers.78
[46] WAN and ColourPress submit that the proposed variation to jury service, above the NES, cannot be considered by the Commission as the AMWU has failed to provide any argument or evidence in support of this significant variation. 79
[47] ABI and the NSWBC also oppose the AMWU’s proposals concerning redundancy, sick leave and jury service. They submit that the “consequential changes” proposed by the AMWU represent significant changes. 80 They contend that the proposed changes must be supported by probative evidence81 and that the AMWU has not filed any evidence to support its proposed variations,82 such as the alleged “industry standards” contained in the pre-modern awards.83
[48] ABI and the NSWBC submit that in News Limited, 84 the Full Bench noted that the differences in the News Limited awards and the Award were explained by the circumstance that metropolitan daily publishing was not intended to be covered by the industry award and that the terms of the industry award were determined without regard to the terms of the enterprise awards applying to metropolitan daily newspaper publishing.85
[49] ABI and the NSWBC submit that:
➣ News Limited is a unique business and is not reflective of broader industry standards. 86 ABI and the NSWBC argue that the AMWU submissions concerning “industry standards” are contradictory. The AMWU submits that the News Limited enterprise awards should not be taken into account to determine industry standards because they are separate from the industry award, but that the redundancy provisions in the News Limited enterprise awards should be taken into account in establishing the industry standard87;
➣ there are a significant number of pre-modern awards that did not contain the type of redundancy and leave entitlements sought by the AMWU, 88 and that the AMWU’s proposed variations cannot be said to constitute “industry standards”.89 They submit that the AMWU has failed to appreciate the effect of the “consequential changes” in altering the terms and conditions of employees currently covered by the Graphic Arts Award.90 In particular, pre-press employees, who are essentially graphic artists, are excluded from coverage of News Limited enterprise awards (with the exception of pre-press employees covered by the South Australian and Tasmanian Award).91 These News Limited enterprise awards do not contain classifications covering graphic artists92; and
➣ pre-press News employees would be covered by the Award, 93 and the proposed variation would result in pre-press employees obtaining additional redundancy and personal leave entitlements, to which they are currently not entitled.94 They submit that the category of pre-press employees undermines the AMWU’s reliance on an industry standard.95 There are also categories of graphic artists currently covered by the Award who do not receive the proposed additional redundancy and personal leave entitlements96 including most of News Limited pre-press employees, graphic artists employed at Fairfax and graphic artists operating outside the newsprint industry.97
[50] ABI and the NSWBC note that jury service leave was previously considered in the Award Modernisation Decision. 98 As such, they contend that the AMWU’s proposal is merely an attempt to re-agitate matters that have already been considered and determined.99
[51] ABI and the NSWBC rely on the witness statement of Mr Daryl Makins, who is a Senior Manager of Employee Relations for News Corp Australia (News Corp). 100 Mr Makins was not required for cross-examination.101 Mr Makins’ evidence is that the federal industrial awards never applied to sites which had state-based enterprise awards.102 Technological developments in the 1990s caused printing operations to be moved from the same location as the rest of the newspaper operations to new locations.103 New enterprise awards were negotiated with the employees at these new printing sites.104
[52] There are currently five modern enterprise awards which cover News Corp production employees. 105 News Corp engages proximately 200 “pre-press employees” who work on metropolitan daily newspapers. Pre-press employees do not typically work at “print centres”.106 Pre-press employees in NSW, Victoria and Queensland are not covered by the relevant enterprise award as the enterprise awards are specific to a particular print site or do not contain a classification covering graphic artists.107 Mr Makins notes that there are 25 graphic designers working in sales and marketing who are not covered by the Graphic Arts Award or the enterprise awards.108
[53] The Award currently makes provision for redundancy, sick leave and jury service. As to Redundancy, clause 16 provides:
16.1 Redundancy pay is provided for in the NES.
16.2 Transfer to lower paid duties
Where an employee is transferred to
lower paid duties by reason of redundancy, the same period of notice
must be given as the employee would have been entitled to if the employment
had been terminated and the employer may, at the employer’s option,
make payment instead of an amount equal to the difference between the
former ordinary time rate of pay and the ordinary time rate of pay for
the number of weeks of notice still owing.
16.3 Employee leaving during notice
period
An employee given
notice of termination in circumstances of redundancy may terminate their
employment during the period of notice. The employee is entitled to
receive the benefits and payments they would have received under this
clause had they remained in employment until the expiry of the notice,
but is not entitled to payment instead of notice.
16.4 Job search entitlement
(a) An employee given notice of termination in circumstances of redundancy must be allowed up to one day’s time off without loss of pay during each week of notice for the purpose of seeking other employment.
(b) If the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment, the employee must, at the request of the employer, produce proof of attendance at an interview or they will not be entitled to payment for the time absent. For this purpose a statutory declaration is sufficient.
(c) This entitlement applies instead of clause 15.3.
[54] Sick leave entitlements are found in clause 38 as follows:
38. Personal/carer’s leave and compassionate leave
Personal/carer’s leave and compassionate leave are provided for in the NES.
[55] Jury service is similarly dealt with at clause 39 as follows:
[56] In making the Award, the Full Bench in the Award Modernisation Decision said:
“Graphic arts group
[142] We publish a Graphic Arts, Printing and Publishing Award 2010. We have made only minor alterations to the coverage provision in the exposure draft. Some concerns were expressed about the potential for overlap between this award and other awards in relation to publishing and despatching. We have made a minor alteration to make it clear that the award only applies to despatching which is incidental to the industries or parts of industries covered by the award. Otherwise we do not think any greater clarification is warranted. We have not made any changes to the draft relating to coverage of web design, design generally, or metropolitan newspapers or plastics manufacturing. The provisions largely reflect the coverage of awards to be subsumed into the modern award.” 109
[57] We consider that in the making of the Award, the particular conditions applicable to metropolitan daily newspapers were not then considered. This, we think, is evident from the foregoing extract from the Award Modernisation Decision and it is consistent with the view expressed in News Limited wherein that Full Bench observed that “. . . 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”. 110
[58] Therefore, in varying the Award to make clear that coverage extends to metropolitan daily newspapers we should also consider if there are any consequential changes to various other provisions of the Award having regard to the terms of the pre-2009 industrial instruments which applied to metropolitan daily newspapers.
[59] Although the AMWU sought by general submissions to justify the variations sought, its submissions primarily focused on an argument that the Award should be varied to reflect these conditions because these conditions were the pre-2009 standard for the metropolitan daily newspaper sector. In other words, the AMWU urged us to approach the matter in the same manner as the Full Bench in the Award Modernisation Decision approached the task of creating the Award in 2010 but having regard for the first time, to the standards in the metropolitan newspaper sector. We consider that if we adopt this approach then it is not the standards applying to the sector in general which must be considered but rather the standards as reflected in the pre-2009 industrial instruments which applied to the sector. The relevant industrial instruments in this context are the awards. Absent some broader merit based case, we do not consider that the enterprise agreements or over award arrangements which may have been in place in the sector to be relevant.
[60] In the making of the Award there were a large number of per-2009 industrial instruments considered by the Full Bench. The most significant pre-2009 federal instrument was the Graphic Arts –General – Award 2000. In respect to Jury Service that instrument provided as follows:
7.4.1 Entitlement
Weekly employees required to attend for jury service during their ordinary working hours will be reimbursed by the employer an amount equal to the difference between the amount paid in respect of their attendance for such jury service and the amount of wages they would have received in respect of the ordinary time they would have worked had they not been on jury service.
7.4.2 Requirements for payment
An employee must notify their employer as soon as possible of the date upon which they are required to attend for jury service. Further the employee must give their employer proof of attendance, the duration of such attendance and the amount received in respect of such jury service.”
[61] This provision is almost identical to that sought by the AMWU in these proceedings. Although the specific circumstances of metropolitan daily newspapers might not have been considered in the Award Modernisation Decision. It seems clear enough that the issue of whether there should be a jury service standard above the NES was considered. The issue of community service leave, including jury service was considered in the Award Modernisation Priority Industries Decision 111(Priority Industries Decision) in which the Full Bench, inter alia, dealt with general issues and standard clauses, and in which it determined as to community service leave, as follows:
“Community service leave
[103] We have given further consideration
to whether modern awards should supplement the NES in relation to the amount
of jury service leave to which an employee is entitled. The NES provides that
jury service leave should be limited to 10 days. So far as we know jury service
leave provisions in awards and NAPSAs are not subject to any cap at all. If
we were to maintain an unlimited entitlement it would be necessary to supplement
the NES in every modern award. Such a course would be inconsistent with the
NES and tend to undermine it.
[104]
A similar consideration arises in relation to the rate of pay while on jury
service leave. For similar reasons we shall not make general provision for a
rate of pay other than the base rate as defined in the NES. It follows that
the standard community service leave clause will simply refer to the NES.” 112
[62] We are therefore satisfied that in making the Award, the Full Bench considered that it was not appropriate to supplement the NES in respect to jury service notwithstanding that it was a feature of the major pre-reform federal instrument. Supplementation of the NES in respect to jury service is included in the Manufacturing Award but it has not been determined to be appropriate in this Award. This was the result of the Priority Industries Decision. The inclusion of enhanced jury service entitlements in the Manufacturing Award was largely the result of agreement between the interested parties rather than the product of an arbitral determination following a consideration of evidentiary matters and submissions. In the Priority Industries Decision the Full Bench dealt with this issue at [177] – [192] of its decision. It is clear from a reading of those paragraphs that the Full Bench makes no reference is made to any contest about community service leave or jury service in the above extract. The Manufacturing Award, which included enhanced jury service provisions at clause 43, was one of the 17 modern awards made pursuant to the Priority Industries Decision.
[63] We accept that the standard in the pre-2009 industrial instruments applicable in the metropolitan daily newspaper sector was the same as the standard that applied in the graphic arts and printing industries more generally. There is therefore, no basis for varying the Award based upon the standard applying in the industrial instruments applicable to the metropolitan daily newspaper sector. This matter has, as is evident from the foregoing discussion, already, in effect been considered and decided. In the absence of an evidentiary case establishing the merits of the proposed variation, the AMWU’s proposal concerning jury service must fail.
[64] As to the remaining two matters, the AMWU points to the following industrial instruments applicable in the metropolitan daily newspaper sector as establishing an industry standard; the four News Ltd Enterprise Awards, the two Fairfax Awards (Fairfax Printers Award 1999 and Print Centre (Canberra Times) Award 2003) and in respect to the West Australian, the Printing (Newspaper) Award 1979. In respect of personal leave, the AMWU maintains that its proposed higher standard was present in two of the four News Ltd enterprise awards and in the award applicable to the West Australian but not in any of the other awards. We are unable to see how this establishes an industry standard which should be reflected in the Award. A more significant evidence based merits case would need to be advanced for the inclusion of a higher standard in respect of personal leave for this sector in the Award.
[65] As to the redundancy claim, the AMWU maintains that a “majority of the pre-reform awards covering a majority of employers in the industry had the entitlement to daily newspaper redundancy”. 113 In addition to the industrial instruments to which reference has already been made, the AMWU refer to the WAN Award and the Metropolitan Award. The first, as its title suggests, only applies to voluntary redundancy processes. This is, contrary to the AMWU’s submissions, also clear from the text of that award. The Fairfax Printers Award 1999, which applied to the Sydney Morning Herald, does not provide for enhanced redundancy severance payments. There was no pre-2009 award instrument applicable to the Age newspaper which included the enhanced redundancy severance payments. The Print Centre (Canberra Times) Award 2003, provided that “no employee will be retrenched as a result of new technology introduced by the Company”. It also required, as a condition of the prohibition of such retrenchment that the employee agreed to participate in appropriate retraining and transfer to suitable alternative duties.114 The enhanced severance payments applied to voluntary redundancy processes.
[66] In summary, the pre-2009 awards applicable to the sector made provision for enhanced severance payments in cases of voluntary redundancy processes in the case of the Canberra Times and the West Australian but no enhanced severance payments applied to the Age, the Sydney Morning Herald or the Financial Review. Enhanced redundancy provisions were contained in the enterprise award, the Metropolitan Daily Newspapers Redundancy Award 1999, applicable to News Limited publications.
[67] We consider that the Age, the Financial Review and the Sydney Morning Herald are major publications of the Fairfax group. The other Fairfax group metropolitan daily publication is the Canberra Times. The Fairfax group and News Limited dominate the metropolitan daily newspapers scene. The enhanced redundancy severance pay so called industry standard did not apply to the pre-2009 awards as they affected the Fairfax group with the exception of the Canberra Times. In respect to the Canberra Times, the enhanced provisions applied only to voluntary redundancy. In these circumstances, we are not persuaded that an enhanced redundancy severance pay standard was established by the pre-2009 awards for the metropolitan daily newspapers. A more significant evidence based merits case would need to be advanced for the inclusion of a higher standard in respect of redundancy severance pay for this sector in the Award.
Conclusion
[68] For the reasons given, we reject the claims advanced by the AMWU concerning jury service, personal leave or redundancy pay. We will, for the reasons earlier given, make orders varying the Award as follows:
[69] An order giving effect to this decision will be separately issued in due
course.
DEPUTY PRESIDENT
Appearances:
Mr M Nguyen, together with Ms A Devasia and Ms L Hogan on behalf of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).
Mr L Izzo, together with Ms K Thomson for Australian Business Industrial and the NSW Business Chamber.
Mr S Crilly, Solicitor on behalf of Fairfax Media Limited.
Hearing Details:
2017
Sydney &
Melbourne (via video link)
29 May
Final written submissions:
Australian Manufacturing Workers' Union, 25 May 2017
Australian Business Industrial and the NSW Business Chamber, 22 May 2017
West Australian Newspapers Ltd and another, 17 May 2017
Fairfax Media Limited, 12 May 2017
3 Ibid at [95].
4 Ibid at [96].
5 AMWU submission - draft determination dated 7 April 2017.
6 AMWU Submission dated 7 April 2017 at [4].
7 Ibid at [5].
9 AMWU Submission dated 7 April 2017 at [15].
11 Ibid at [9]-[10].
12 Ibid at [21].
13 AMWU Submission dated 7 April 2017, at [21].
14 Ibid at [22].
15 Ibid at [27].
16 Fairfax Submission dated 12 May 2017 [8].
17 Ibid at [9].
18 Ibid at [10].
19 Ibid.
20 Ibid at [12].
21 Ibid.
22 Ibid at [14].
23 WAN and ColourPress Submission dated 17 May 2017 at [5].
24 Ibid at [6].
25 Ibid.
26 Ibid at [7].
27 Ibid at [4].
28 Transcript, 29 May 2017 at PN78.
29 Ibid at PN81.
30 Ibid at PN83.
31 Fairfax Submission dated 12 May 2017 at [18].
32 Ibid at [20].
33 AMWU Submission in reply dated 23 May 2017at [7].
34 AMWU Submission dated 7 April 2017 at [27].
35 Ibid at [29].
36 Ibid at [31].
37 Ibid at [32].
38 Ibid at [34].
39 Ibid at [37]
40 Ibid at [39].
41 Ibid at [44].
42 Ibid at [48].
44 AMWU Submission in reply dated 23 May 2017 at [9].
46 AMWU Submission in reply dated 23 May 2017 at [12].
49 AMWU Submission in reply dated 23 May 2017at [18].
50 Ibid at [23].
51 Ibid at [25].
52 Ibid at [27].
53 Ibid at [29].
54 Ibid at [32].
55 Ibid at [34].
56 Ibid at [35].
57 Fairfax Submission dated 12 May 2017 at [22].
58 Ibid at [27].
59 Ibid at [29].
60 Ibid at [33].
61 Ibid at [35].
62 Ibid at [41].
63 Ibid at [42].
64 Ibid at [44].
65 Ibid at [46].
66 Ibid at [49].
67 WAN and ColourPress Submission dated 17 May 2017 at [9].
68 Ibid at [12].
69 Ibid at [10].
70 Ibid at [16].
71 Ibid at [18].
72 Ibid.
73 Ibid at [19].
74 Ibid at [21].
75 Ibid at [23].
76 Ibid at [21].
77 Ibid at [25].
78 Ibid.
79 Ibid at [26].
80 ABI & the NSWBC Submission dated 19 May 2017 at [3.3].
81 Ibid at [3.4].
82 Ibid at [3.5].
83 Ibid at [3.6].
84 [2014] FWCFB 6167 at [4].
85 ABI & the NSWBC Submission dated 19 May 2017 at t [4.8].
86 Ibid at [4.9].
87 Ibid at [4.11].
88 Ibid at [4.13].
89 Ibid at [4.16].
90 Ibid at [5.1].
91 Ibid at [5.3].
92 Ibid at [5.3].
93 Ibid at [5.4].
94 Ibid at [5.5].
95 Ibid at [5.7].
96 Ibid.
97 Ibid.
98 Ibid at [7.1].
99 Ibid at [7.2].
100 Exhibit 1 at [1].
101 Transcript, 29 May 2017 at PN75.
102 Exhibit 1 at [6].
103 Ibid at [7].
104 Ibid at [8].
105 Ibid at [11].
106 Ibid at [13].
107 Ibid at [14].
108 Ibid at [17].
109 [2009] AIRCFB 345 at [142].
110 [2014] FWCFB 6167 at [9].
112 Ibid at at [103]–[104]
113 AMWU Submissions in reply dated 23 May 2017 at [15].
114 Clause 12.
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