Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – Broadcasting and Recorded Entertainment Award 2010 – substantive issues – amended coverage terms – consultation on draft determination.

[1] This decision concerns proposed variations to the Broadcasting and Recorded Entertainment Award 2010 1 (the BREA) as part of the four yearly review of modern awards conducted by the Fair Work Commission (the Commission) in accordance with s.156 of the Fair Work Act 2009 (Cth) (the FW Act).

The hearing

[2] Directions were issued for the filing of evidence and written submissions. A hearing was held on 6 June 2017.

[3] Both CPSU, the Community and Public Sector Union (the CPSU) and the Media, Entertainment and Arts Alliance (MEAA) (together the applicants) applied to substantively vary the BREA. The following parties also participated in the proceedings:

• Birch Carroll and Coyle Limited, the Hoyts Corporation Pty Ltd, the Greater Union Organisation Pty Ltd, Village Cinemas Limited and the Independent Cinemas Association of Australia and its members (together the Cinema Employers); and


• the Screen Producers Association of Australia (SPA).

[4] We should note that SPA had also filed an application to vary the BREA, but these were withdrawn well before the hearing. We also note that the Cinema Employers and MEAA had earlier agreed upon other substantive variations relating to part-time employment and cinema employees following a conference before Senior Deputy President Hamberger on 19 May 2016. These were outlined in his Honour’s report of 21 July 2016 to the Group 4 Full Bench and have already been incorporated into the current BREA exposure draft.

[5] The CPSU tendered:

• a witness statement of Stuart Brewer-McCabe, a CPSU lead organiser who has represented employees in the broadcasting industry; 2


• a witness statement of Joanne Ellis, an audio-describer employed by Ericsson; 3
• a witness statement of Michael McGettigan, a captioner employed by Ericsson; 4 and
• a witness statement of Michael Pentecost, a subtitling editor employed by the Special Broadcasting Service (SBS). 5

None of these witnesses was cross-examined.

[6] MEAA tendered a data set showing the breakdown of adult and junior employees employed by cinema representatives as at 30 March 2015, and their respective classifications within the BREA. 6

[7] At the hearing, SPA submitted that while it did not oppose MEAA’s proposal to extend the coverage of the BREA to expressly include dancers in principle, it had concerns about the potential effects of the specific wording MEAA had adopted. 7 However, SPA had not prepared an alternative proposal in any detail, nor had it filed any written submissions to this effect prior to the hearing as we had directed. SPA also provided no evidence to support its claim that the variations MEAA sought did not distinguish satisfactorily between dancers of different skill levels.

[8] We declined to provide SPA with more time following the hearing in which to prepare and file written submissions on this point, on the basis that to do so would be unfair to MEAA in circumstances where SPA had already had an explicit opportunity to provide evidence and submissions, but had chosen not to take it.

[9] We received no submissions opposing any other aspect of the proposed variations.

The CPSU’s application

[10] The CPSU’s application seeks to expand the coverage of the BREA to include captioners, audio-describers, subtitlers and subtitling editors (together, the new roles). Employees in these types of roles are currently not covered by any industry award. The CPSU has applied 8 to modernise an enterprise award that covers such employees, the Community and Public Sector Union (Subtitlers) Award 1999.9 However, that application is stood over pending determination of this one.

[11] The CPSU’s proposed variation inserts each of the new roles at various skill levels (trainee, etc.) into the BREA’s existing classification structure, together with descriptions of the skills, duties, competencies and responsibilities of each. The CPSU also seeks to insert a clause providing a paid 10-minute break every two hours for employees in the new roles while working on visual display terminals. Finally, the CPSU seeks a 17% shift penalty for employees in the new roles when working a shift of at least seven hours’ duration that commences after 12:00 pm and before 6:00 pm.

[12] Mr Brewer-McCabe gave evidence about the CPSU’s historical representation of employees in the new roles and his own part in representing such employees in disputes and negotiation of enterprise agreements since December 1999. He stated that the Broadcasting Services Act 1992 (Cth) requires Australian broadcasters to provide captioning for certain types of programs and programs broadcast at certain times. He stated that the terms and conditions of employment of subtitlers and subtitling editors employed directly by SBS were dealt with in the SBS Enterprise Agreement 2016 10 and underpinned by the Australian Government Industry Award 2016,11 and that captioners working for Ericsson are covered by the Red Bee Media Australia Enterprise Agreement 2015,12 but that otherwise, his understanding was that the new roles were not currently covered by any modern award or enterprise agreement.

[13] Ms Ellis described the duties of her role as an audio-describer at Ericsson (formerly Red Bee Media), and those of her former captioner role there. She emphasised the specialised skills and tight deadlines that characterised both those roles. She stated that that she believed the CPSU’s proposed descriptions of the skills and competencies of captioners and audio-describers are adequate and appropriate.

[14] Mr McGettigan gave evidence about his role as a captioner at Ericsson (formerly Red Bee Media and before that, the Australian Captioning Centre). He explained how since he commenced in 2001, the role has changed as captioners have been increasingly required to keep up with faster turnaround times, borne of rapid technological advances and increased client demand. He stated:

‘…the changes in the captioning industry have made my role as a captioner more complex, more time critical and intense, to a higher standard of accuracy and for more diverse types of media.’ 13

[15] Like Ms Ellis, Mr McGettigan agreed with the descriptions of the skills and competencies of a captioner and audio-describer that the CPSU proposes to insert in the BREA. In particular, Mr McGettigan supported the proposed inclusion of captioners at different skill levels, to reflect the fact that ‘on-the-job training and development is ongoing’, 14 and that captioners have different amounts of job experience. He also supported the proposed paid breaks and shift penalty.

[16] Mr Pentecost described the duties of a subtitler and subtitling editor. He thought the descriptions of the skills and competencies of these roles the CPSU proposes to insert in the BREA were adequate and appropriate. He also gave evidence that computerisation has increased the productivity of subtitlers and subtitling editors, but that the number of these roles at SBS has decreased due to reduced demand and subtitles being produced externally, including overseas.

[17] The CPSU submitted that its proposed variations are necessary to achieve the modern awards objective 15 in relation to employees in the new roles because:

• current industry award coverage for the new roles is inadequate, as the terms of the Miscellaneous Award 2010 16 (the Miscellaneous Award) do not reflect the ‘specific and unique work performed, or the television broadcasting environment in which it is performed’;17


• in particular, the minimum wages the Miscellaneous Award contains do not reflect the work value of those roles;
• doing nothing would mean that the new roles were subject to ‘divided’ award coverage because some would be covered by the Miscellaneous Award and some by an old enterprise award;


• its proposed variation to the BREA would remedy this by ensuring that its industry-specific terms and conditions covered those employees;


• the BREA would then provide a ‘fair and relevant safety net’ 18 for employees in the new roles;


• making the proposed variations will ensure that all employees in the new roles may ‘engage in enterprise bargaining from the same minimum basis’, 19 thereby encouraging collective bargaining;20


• the BREA provides penalty and overtime rates appropriate to the hours expected in the broadcasting industry, and in particular, television broadcasting, and the proposed insertion of the 17% afternoon shift penalty will supplement the existing provisions with one that is currently provided in the enterprise award;


• the existing inconsistent award coverage of the new roles could negatively affect productivity and increase the regulatory burden; 21 and


• the proposed variations will provide ‘clear and unambiguous modern award coverage’ 22 of the new roles, thus making the system simpler and easier to understand.23

MEAA’s application

[18] MEAA has applied to vary several aspects of the BREA with the aims of clarifying that:

• cinema workers and dancers are covered by the BREA;


• Part 10 of the BREA applies to productions other than ‘film’ productions; and


• cl 74.2 is intended to provide relevant employees with an overtime payment rate that is double their ordinary base rate of pay.

[19] The variations sought are:

1. in cl 1, changing the title of the BREA to the Broadcasting, Recorded Entertainment and Cinemas Award 2010;

2. in cl 3, replacing the definition of ‘broadcasting and recorded entertainment industry’ with the following:

‘broadcasting, recorded entertainment and cinema industry means the production (including pre-production and post-production), broadcasting, distribution, showing, making available, and/or sale of audio and audio/visual content including but not limited to feature films, television programs (including series, serials, telemovies and mini-series), news, current affairs, sport, documentaries, video clips, digital video discs, television commercials, training films and the like whether for television exhibition, theatrical exhibition, sale to the public, digital media release or release in any other medium’ [our emphasis];

3. in cl 4.1, replacing ‘broadcasting and recorded entertainment industry’ with ‘broadcasting, recorded entertainment and cinema industry’;

4. in cl 74.2, replacing ‘single time additional’ with ‘double time’, so that it reads:

‘Any employee required to commence work at such time that the employee does not receive the breaks prescribed in clause 74.1 will be paid double time for all time actually worked after that until such time as the employee receives a break as set out in that clause.’;

5. in the definition of ‘artist’ in cl 59, adding ‘dancers’ to the list of specific types of artist already included in that definition, so that it reads:

‘artist means each and all of those persons engaged by the producer (or their equivalent) to take part audibly and/or visually in a production in the broadcasting and recorded entertainment industry including performers, dancers, doubles, stand-ins and stunt artists’;

6. in cl 59, replacing the definition of ‘performance’ (currently ‘the work done by an artist in a film’) with the following:

‘performance means the work done by an artist in a production including but not limited to short films, feature films, advertising and promotional films, television commercials, television programs and any performance of an artist which is recorded, captured, simulcast and/or broadcast in any media or format, including but not limited to digital media platforms, mediums and services’;

7. in item F.1.4 of Schedule F, varying the definition of ‘Performer Class 1’ by adding the wording underlined below:

‘F.1.4 Performer Class 1 means an artist who takes part in a performance and/or is engaged to take part in a rehearsal for a performance who is required to speak more than two lines of dialogue (except in the case of a dancer, mime artist or puppeteer, who may not be required to speak any lines of dialogue but who is engaged to take part in a performance in that capacity) and who has the necessary skills to the required standard to effectively audition, prepare, rehearse and perform the role required.

[…]

(iv) Performance

• achieve the quality of performance to the required standard and be able to repeat performances to that standard;


• maintain the emotional, physical and vocal continuity required for the performance;


• perform convincingly under diverse and adverse physical and mental conditions.

In relation to the indicative tasks of dancers that are classified as Performers Class 1, a dancer is able to:

• demonstrate a sound dance technique;


• demonstrate appropriate skills and knowledge for learning, rehearsing and performing dance roles;


• demonstrate an ability to perfomr in public;


• demonstrate screen craft skills;


• undertake all responsibilities associated with make-up and costume as required;


• demonstrate musicality as appropriate to performing as a dancer; and


• interpret physically and emotionally the choreographic content of a production.’;

8. in item F.1.5 of Schedule F, varying the definition of ‘Performer Class 2’ by adding the wording underlined below:

‘F.1.5 Performer Class 2 means an artist who takes part in a performance and/or is engaged to take part in a rehearsal for a performance, who is required to speak more than six lines of dialogue or more than fifty words (except in the case of a dancer, mime artist or puppeteer, who may not be required to speak any lines of dialogue but who is engaged to take part in a performance in that capacity) and:

(a) possesses the skills of a Performer Class 1;

(b) has worked professionally for a minimum of five years as a performer; and

(c) has gained 150 points under the Experienced Points Structure set below.’;

9. in Part 10, deleting all references to ‘film’ and replacing them with ‘production’ where necessary, except in the definition of ‘feature film’ in cl 59 and cls 60, 61, 62, 64 and 65;

10. in cl 62.11, replacing ‘performers’ with ‘actors’; and

11. in the headings of cl 14.7, Part 10 and Schedule F, replacing ‘actors’ with ‘artists’.

[20] Items 1 through 4 above were discussed and agreed upon at a conference before Senior Deputy President Hamberger on 31 January 2017. The rest of the items are the subject of this decision.

[21] MEAA did not lead any witness evidence, but referred to various pre-modern federal awards (together, the pre-modern awards):

• the Entertainment and Broadcasting Industry – Dance Company – Award 1998; 24


• the Actors Etc. (Television) Award 1998; 25
• the Actors Feature Film Award 2002; 26 and
• the Actors Television Programs Award 2001. 27

[22] MEAA submitted that:

• since the BREA demonstrably amalgamates the terms and conditions from the pre-modern awards that regulated dancers’ employment, including dancer-specific entitlements such as warm-up and rest breaks, it is clear that it is already intended to cover dancers; however, some relevant clauses do not expressly mention dancers, and others may by their wording unintentionally exclude them;


• MEAA’s proposed variations to Part 10 and Schedule F make this coverage explicit and clarify that the Performer Class 1 and Performer Class 2 classifications can apply to dancers;


• the references to ‘film’ in Part 10 ‘may erroneously limit the BREA’s application to film settings’, 28 when the definition in cl 3 of the industry it covers makes it clear that is not the intention;


• replacing ‘film’ with ‘production’ where necessary and deleting it elsewhere removes an anachronism in the BREA, allowing it to encompass digital means of recording media;
• MEAA’s proposed variation to the definition of ‘performance’ in cl 59 will make the BREA more consistent by aligning that definition with the definition in cl 3 of the industry it covers;


• replacing ‘performers’ with ‘actors’ in cl 62.11 will ensure that dancers will not inadvertently appear to have an entitlement to release allowances, which by industry convention only apply to actors; and


• replacing ‘actors’ with ‘artists’ in the headings of cl 14.7, Part 10 and Schedule F will reduce confusion by making it clear that those parts of the BREA also apply to artists other than actors.

Consideration

[23] The legislative context to the award review process was exhaustively discussed in the Penalty Rates Case 29 at [95]-[141]. We respectfully adopt the approach outlined in that decision.

The CPSU’s application

[24] There was no opposition to the CPSU’s application. We consider that it would be inconsistent with the modern awards objective for employees in the new roles to remain effectively award-free (save for the Miscellaneous Award and a lone enterprise award), and agree that the BREA is the most appropriate award to cover these employees. We therefore consider it necessary to extend the coverage of the BREA to include the new roles. We also accept the CPSU’s evidence and submissions in relation to the necessity of breaks for captioners and audio-describers while working on visual display terminals, and the inclusion of the shift penalty as sought.

[25] Accordingly, we will vary the award to reflect the variations proposed by the CPSU.

MEAA’s application

[26] With the exception of SPA’s concerns, which we referred to at [7] above and which were ultimately not developed, there was no opposition to MEAA’s application. The Cinema Employers expressly confirmed at the hearing that they did not oppose any part of MEAA’s application. 30

[27] We consider that the variations MEAA has proposed are necessary to meet the modern awards objective. In particular, we think the proposed variations will help to make the BREA ‘simple, easy to understand, stable and sustainable’. 31

[28] The only minor exception is to replacing the term ‘single additional time’ with ‘double time’. The current exposure draft already incorporates the effect of this proposal, but uses different wording. Instead it states ‘Any employee required to commence work without receiving a break as prescribed in clause 78.1 will be paid an additional 100% of the minimum hourly rate for all time actually worked after the break was to be taken until the employee receives a break as set out in clause 78.1.’ We consider that the current wording in the exposure draft should be retained.

Conclusion

[29] We will make a determination varying the BREA as sought by both the CPSU and MEAA. A draft determination is attached to this decision. Comments are sought from interested parties within four weeks of this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

M Chesher for the Media, Entertainment and Arts Alliance.
K Barlow for CPSU, the Community and Public Sector Union.
J Murdoch SC with M Serong, solicitor, for Birch Carroll and Coyle Limited, the Hoyts Corporation Pty Ltd, the Greater Union Organisation Pty Ltd, Village Cinemas Limited and the Independent Cinemas Association of Australia and its members.
M Donaldson for the Screen Producers Association of Australia.

Hearing details:

Sydney.
2017.
June 6.

 1   MA000091.

 2   Exhibit CPSU1.

 3   Exhibit CPSU2.

 4   Exhibit CPSU3.

 5   Exhibit CPSU4.

 6   Exhibit MEAA1.

 7   PN172-PN223.

 8   Fair Work Commission matter no. EM2013/71.

 9   AP773267.

 10   AE422408.

 11   MA000153.

 12   AE414358.

 13   Exhibit CPSU3 [12].

 14   Ibid [19].

 15   Fair Work Act 2009 (Cth) s.134(1).

 16   MA000104.

 17   CPSU submissions (7 April 2017) [4.6]; see also [5.4].

 18   Fair Work Act 2009 (Cth) s.134(1)

 19   CPSU submissions (7 April 2017) [6.3].

 20   Fair Work Act 2009 (Cth) s.134(1)(b).

 21   Fair Work Act 2009 (Cth) s.134(1)(f).

 22   CPSU submissions (7 April 2017) [6.11].

 23   Fair Work Act 2009 (Cth) s.134(1)(g).

 24   AP780410.

 25   AP765510.

 26   AP817364.

 27   AP811656.

 28   MEAA submissions (17 April 2017) [30].

 29   [2017] FWCFB 1001.

 30   PN226-PN227; PN239.

 31   Fair Work Act 2009 (Cth) s.134(1)(g).

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