Crawford Productions Pty Ltd v Film & Television Production Association of Australia

[1983] FCA 232

Re: CRAWFORD PRODUCTIONS PTY. LTD. and CRAWFORD PRODUCTIONS (FEATURE FILMS)
PTY. LTD.
And: THE FILM AND TELEVISION PRODUCTION ASSOCIATION OF AUSTRALIA; THE ACTORS'
EQUITY ASSOCIATION OF AUSTRALIA; GRUNDY ORGANISATION PTY. LTD. and J.N.P.
PRODUCTIONS PTY. LTD. (1983) 79 FLR 274
V No. 42 of 1982
Industrial Law
5 IR 413

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Smithers(1), Keely(2) and Jenkinson(3) JJ.

CATCHWORDS

Industrial Law - Award - interpretation - annual leave - full pay - ordinary pay - total earnings - total negotiated fee - employment on work covered by the Award at a rate of pay in excess of the Award minimum rate.

Conciliation & Arbitration Act 1904 (Cth) s. 110

Industrial Law - Award - Interpretation - Jurisdiction of Federal Court - Annual leave - Full pay - Ordinary pay - Total earnings - Total negotiated fee - Employment on work covered by the award at a rate of pay in excess of award minimum rate - Rights granted by employee to employer for repeat playing of performance - Whether payments attributable by contract to such repeat were pay and earnings - Costs of proceedings - Parties bound by order - Conciliation and Arbitration Act 1904 (Cth), s 110.

HEADNOTE

Proceedings for an interpretation of cl 16 of the Actors Television Programs Award 1973, which fixed entitlements to annual leave, raised the question whether the terms "full pay", "ordinary pay" and "total earnings" in that clause comprised the whole sum described as the total negotiated fee in certain contracts made between the appellant and certain actors. Two documents were tendered in evidence before the trial judge as typical forms of agreement; one relating to the employment of an actor in a sustaining or major role and the other an example of an agreement for the employment of an actor in a casual or guest role. Clause 3 of each agreement stated in part:

"The Company shall pay the Artiste by way of remuneration for his or her services and for the abovementioned limited rights the sum set forth in the (second) Schedule hereto. The sum set forth in the (second) Schedule hereto comprises payments made as remuneration for the following rights -

(a) Payment for first playing - Basic negotiated fee;

(b) Residual payment for first repeat - 35 per cent of basic negotiated fee; (c) Residual payment for second repeat - 25 per cent of basic negotiated fee;

(d) Residual payment for third repeat - 10 per cent of basic negotiated fee; (e) Rights in the series for two playings for the rest of the world with the exclusion of a network sale in the United States of America - A further 15 per cent of basic negotiated fee payable upon sale. . . ."

The trial judge ordered and declared that the expressions "full pay", "ordinary pay" and "total earnings" included payments made to a performer in respect of repeat showings of a programme when included in the total fee paid to the employee for duties performed under the terms of an engagement entered into under cl 9 of the award. On appeal,

Held: (1) Per Keely and Jenkinson JJ -

(a) The whole of what was designated as the total negotiated fee in the second

schedule to the first agreement was payment in consideration of the employee's work

and was pay and earnings.

(b) Each performance of the promised repetitive act brought the specified sum

within the meaning of the word "pay" and of the word "earnings" in the award. The parties had not apportioned consensually the specified sum between the relinquishment or assignment of rights and the performance of the duties of the employment.

(2) Per Smithers J -

(a) The total negotiated fee was the remuneration for the services to be performed

under the contract and nothing else.

(b) In a real sense, the word "rights" and the notion of the "grant of rights" entered into the transaction between the parties as thereby cl 2 of the first agreement informed the employer what right he had to replay the performance without exposing himself to a claim for renegotiation.

(3) Per curiam -

(a) In exercising powers under s 110 of the Conciliation and Arbitration Act 1904 (Cth) no more could be done than to give an interpretation related specifically to the documents or one of them.

Master Builders Association of Victoria v. Australian Building Construction Employers' and Builders Labourers' Federation (1981) 54 FLR 358 at 360, referred to.

(b) The terms of the second document were insufficiently certain to enable an interpretation to be made.

HEARING

Melbourne, 1983, September 12. #DATE 12:9:1983

APPEAL

Appeal from an order and declaration of a single judge of the Federal Court in proceedings under s 110 of the Conciliation and Arbitration Act 1904 for the interpretation of the Actors Television Programs Award 1973. The facts appear from the judgment of Jenkinson J.

A R Rowlands QC and C N Jessup, for the appellant.

P R A Gray and S R Marshall, for the second respondent.

Cur adv vult

Solicitors for the appellant: Ralph W Lloyd & Co.

Solicitors for the second respondent: Slater & Gordon.

TJG

ORDER

1. That the appeal be allowed and the order appealed against be set aside.

2. This Court declares:

(a) That the words "full pay" in clause 16(a) of the Actors Television Programs Award 1973 as in force on the date of filing of this application comprehend - in relation to employment as a performer in "serial drama" or "serial comedy" (within the meaning ascribed by clause 4 of the said award to each of those three expressions respectively) pursuant to an agreement in writing in the form set forth in the Schedule to this order made between two parties of whom the employer is bound by the said Award - the sum which is written opposite the words "Total Negotiated Fee" in the Second Schedule to the said agreement in writing.

(b) That the words "ordinary pay" in clause 16(d)(i) of the Actors Television Programs Award 1973 as in force on the date of filing of thise application comprehend - in relation to employment as a performer in "serial drama" or "serial comedy" (within the meaning ascribed by clause 4 of the said Award to each of those three expressions respectively) pursuant to an agreement in writing in the form set forth in the Schedule to this order made between two parties of whom the employer is bound by the said Award - the sum which is written opposite the words "Total Negotiated Fee" in the Second Schedule to the said agreement in writing.

(c) That the words "total earnings" in clause 16(d)(ii) of the Actors Television Programs Award 1973 as in force on the date of filing of this application comprehend - in relation to employment as a performer in "serial drama" or "serial comedy" (within the meaning ascribed by clause 4 of the said Award to each of those three expressions respectively) pursuant to an agreement in writing in the form set forth in the Schedule to this order made between two parties of whom the employer is bound by the said Award - the sum which is written opposite the words "Total Negotiated Fee" in the Second Schedule to the said agreement in writing.

JUDGE1

This is an appeal against an order pursuant to s. 110 of the Conciliation & Arbitration Act 1904 (the Act) giving an interpretation of the Actors Television Programs Award 1973 (the award) in relation to clause 16 of that award which provides for annual leave and the terms on which such leave is to be taken by actors entitled to it.

I have had the opportunity of reading the reasons for judgment herein prepared by my brother Jenkinson. The relevant terms of the award and the terms of two relevant documents are set out in full in those reasons. For the purposes of brevity I take the liberty of referring to the terms of the award and the documents as set out in those reasons. I reach the same conclusion as his Honour but reach it by a different path.

In the decision appealed against, Northrop J. ordered that on the true interpretation:

"The court orders that on the true interpretation of cl. 16 - ANNUAL LEAVE - of The Actors Television Programs Award, 1973, the expression "full pay" in sub-cl. (a) thereof, the expression "ordinary pay" in sub-cl. (d)(i) thereof and the expression "total earnings" in sub-cl. (d)(ii) thereof include payments made to a performer in respect of repeat showings of a programme when those payments are included in the "total fee" or "total negotiated fee" paid to the employee for duties performed under the terms of an engagement entered into under cl. 9 of the Award."

There are two substantial issues in the appeal. The first is whether, on their proper construction, the expressions "full pay" in sub-cl. (a) of cl. 16 of the award, "ordinary pay" in sub-cl. (d)(i) and "total earnings" in sub-cl. (d)(ii) thereof comprehend the remuneration actually payable according to the terms of employment of an actor for rendering services the subject of the award or to the minimum remuneration payable in respect of such services according to the award. The second is what in the circumstances of employment of actors under terms of agreement at present obtaining in the industry, and said to be typical, is the amount of full pay referred to in cl. 16.

Where there is an employment to perform services the subject of an award the provisions of the award apply to that employment to the extent that according to their terms they are applicable to the employment. Any terms of the actual contract of engagement which are in conflict with the terms of the award do not operate to the extent of the conflict. But so far as the terms of the actual contract of employment are consistent with the award they operate with full force. The award prescribes rates of pay to be paid to employees who perform the work the subject of it, namely acting work incidental to the production of programmes for television. But those rates are prescribed as minimum rates. Clause 10 of the award expressly states "The minimum rates of pay to be paid . . . shall be as set out in this clause".

An agreement to employ an actor at rates of pay in excess of the minimum rates prescribed in the award does not conflict with the award. So far as rates of pay are concerned the legal rights and duties of the parties are governed by their agreement. The express prescription in cl. 10 of the award of a minimum amount contemplates that the amount actually payable under the contract of employment may exceed that minimum. The award must be integrated on the basis that that possibility is within its field of vision. In cases where that possibility is the reality the provisions of the agreement as to rates of pay define the rights of the employee in that respect. The terms of the award otherwise applicable apply to the employment in question with full force. In such cases a reference in the terms of the award to the rate of remuneration to which the employee is entitled will necessarily refer to that rate as provided in the agreement under which he is employed. The prescribed minimum rate is not that rate. When, therefore, one comes to cl. 16 and finds that it provides for three weeks annual leave on "full pay" it is not to be thought that it refers to some rate of pay which is not the full pay under the employment to which the award applies. The award applies to the employment of the employee to render services covered by the award and contemplates that the full pay for that work may exceed the minimum rates prescribed for that work. Where it does the minimum rate as such, cannot in any sense be considered full pay for that work. If it had been intended that annual leave would be at the minimum rate prescribed it is hardly to be doubted that those words would appear rather than the words "full pay". Similar reasoning applies to the expressions "ordinary pay" and "total earnings".

Accordingly, to ascertain the payment to which an employee on leave is entitled by way of "full pay" according to cl. 16 of the award, one must, if the contract of employment provides for a rate of pay for the relevant services in excess of the prescribed minimum rate, ascertain from that contract what that rate of pay is.

There have been placed before the Court the two documents above mentioned, the contents of each of which are sworn to be typical of the terms of agreement in writing under which employees who perform relevant services are employed. The first is sworn to be "an example of an agreement for the employment of an actor in a sustaining or major role", the second is sworn to be "an example of an agreement for the employment of an actor in a casual or guest role".

The problem before the Court is one of interpretation of the provisions contained in these documents. What, according to the agreements is the remuneration for the services to be rendered? So far as the first document is concerned the particular provision concerning the services to be rendered and the terms on which those services shall be rendered are the recital and clauses one, two and three thereof. I think the recital is of considerable, perhaps critical significance. It recites that "the artiste has agreed to render to the Company, on the terms and conditions, and for the consideration hereinafter appearing, the services which are more specifically referred to below".

To my mind these words emphasise that the agreement is primarily about the terms and conditions on which certain services are to be rendered. There is no suggestion that it concerns the terms and conditions on which rights of a certain nature may be transferred by the artiste to the company. The services are to be rendered upon the terms and conditions and for the consideration thereinafter appearing. Important factors are that the artiste has nothing to offer but his services, and that those services when rendered are rendered once and for all. Because they are recorded on film, their value to the employer will depend on the extent to which he plays the film. At the time of putting his hand to the agreement the artiste has no right to restrain the employer company in its use of the film recording the services to be rendered by "playing" it for reward as often as or wherever it pleases. And no such right is conferred upon him under the agreement. When he does what the agreement contemplates, namely renders the relevant services in front of television cameras, no such right will arise. But because the value of those services to the company must vary according to the extent to which the film is played, the use to be made of the film is a critical factor in the negotiations as to the fee to be paid for an artiste's performance. A company making a film for playing world wide will pay more for the performance of the artiste than one making a film for a short local run. In the ordinary way of business the artiste, in the former case, is in a position to ask for higher remuneration and the company normally willing to pay it, than in the latter. It is apparent from the terms of the first agreement that the contemplated degree of use is a factor against which remuneration for services of the artiste is arrived at between the parties. Thus, in the Second Schedule to the agreement, the "total negotiated fee" is seen to be arrived at in circumstances in which the contemplated film use includes three Australian replays as per cl.3(b), (c) and (d). Each of paras. 3(b), (c) and (d) provide for a percentage addition to the basic negotiated fee for a replay after the first showing. This concept of assessment of remuneration by reference to the number and place of replays which may occur is also present in both cl.2(b) and cl.3(e). Thus in cl.2(b) it is assumed that the Company may without the consent of the artiste sell the film in the United States for a commercial network release and that the employee has no "right" to prevent it doing so. The consequence as expressed in cl.2(b) is that if there are such sales further terms are to be negotiated between the Company and the Actors' and Announcers' Equity Association of Australia. The inevitable implication is that those further terms will relate to additional remuneration for the original services, and not for the invasion of some mythical rights in the artiste under which the artiste might have had some entitlement to prevent such sales. The inference is that the further terms are to be negotiated on the basis of what is reasonable having regard to the additional professional significance of the original performance. The amount of the fee which would have been reasonable for that performance, if at the time the original fee was negotiated the parties had known that there would be such a sale of the film, would be relevant.

By cl.2 of the agreement the artiste purports to "grant" to the company what are called "the exclusive and unlimited television playing rights". The rights referred to would seem to be those specified in sub-clauses (a) and (b) of cl.2. So far as words are concerned the provisions of cl.2 assume that the artiste has, or will have, something in the nature of playing rights over which she has control and could grant or refrain from granting. To be logical the concept must include the notion that the artiste who does not grant rights in question could in law prevent the company from playing the film at the relevant time and place. The grant of rights, of the kind envisaged is, from the point of view of legal effect, quite meaningless. The concept of the grant of any kind of right can only acquire what one may call operative meaning if it is linked with the basis upon which, or process by which, the total negotiated fee is arrived at. The only relevance to the transaction between the parties of the number and nature of playing "rights" to which the company is or may be said to be entitled is their effect on the amount of the total fee which is to be paid to the artiste for his work. It affects how much he will receive for his work. Thus it appears from cl.3(a) that the basic negotiated fee increases by reference to the first, second and third repeats. Although no increase is provided for in cl.3(e) with respect to the two "rest of the world" playings, the connection between the amount of the total negotiated fee and the extent to which the film is expected to be played is apparent, and provides a scale of measurement of that fee, or of components of that fee. And of course it reflects the real situation that, in the normal course of commercial affairs, the fee expected to be paid for services which were to be used frequently and for a vast audience would be greater than for services to be used, say once, and only with a small audience. With those considerations in mind, it is to understand the words used, rather than to do violence to them, to read the reference to the grant of rights as a reference to the degree of contemplated use of the services, in the playing of the film, as the factor by which the negotiated fee for those services is arrived at. There is a real sense, and commercial reality, where the artiste "grants", or agrees to, a specified degree of playing for a designated fee. It is reasonable to discern a concept that from the surrounding circumstances and the express terms of the agreement the degree of "granted" playings, and in that sense, agreed to, is that which supports the designated fee. If that degree is exceeded there is a basis for negotiating a further fee.

Clause 3 is expressed as requiring the company to pay to the artiste "by way of remuneration for his or her services and for the abovementioned limited rights the sum set forth in the Third (Second) Schedule", namely the total negotiated fee. Furthermore cl.3 makes it clear that the sum set forth in the Third (Second) Schedule "comprises payments made as remuneration for the following rights, namely those specified in such sub-cls. (a), (b), (c), (d) and (e) of cl.3.

It is said, reasonably enough, that those provisions describe the total negotiated fee as comprising payments made "as remuneration for" those rights. But where the context so requires, an interpretation which a provision may reasonably bear is permissible which although out of harmony with the ordinary significance of express words brings the provision into harmony with the other provisions of the contract. It is in relation to this problem of interpretation that all the considerations discussed above are significant. And if the grant of rights in cl.2 is to be understood in the sense I have indicated the provisions of cl.3 may be read without violence to its language as providing no more than that the total negotiated fee includes amounts arrived at by taking into account those replays contemplated in cl.3 and only those.

In the context of the concept that the amount of the fee for the artiste's services will reflect the extent to which they are to be used by the employer in replaying the film, and the concept that a negotiated fee may be renegotiated if that use exceeds certain limits, it is essential for the employer, paying a total negotiated fee, to know just how much replaying he may engage in without being subjected to a claim for renegotiation of the fee. In respect of the total negotiated fee he needs to know what "rights" he has to replay it without exposing himself to a claim for renegotiation. Thus there is a real sense in which the word "rights" and the notion of the "grant of rights", enter into the transaction between the parties.

By reference thereto the employer has a sure base on which to engage the services of the artiste for the total negotiated fee without exposure to a claim for renegotiation for an additional fee for those same services. Incidentally also the employee desires to know what extent of replay he is "granting" or agreeing to in relation to the total negotiated fee for his performance. It is in this sense that the use of the words in question are used, in all reality, albeit in form, at first somewhat puzzling.

When it is said that the total negotiated fee comprises payments made as remuneration for specified rights, that is a correct statement if one reads it as follows: "The total negotiated fee includes amounts arrived at by taking into account the specified replays and no other replays". With respect to each of the contracts before the Court, as with respect to the contract the subject of the decision in Reid v. Moreland Timber Co. Pty. Ltd. (1946) 73 C.L.R. 1 it may be said, in the words of Dixon J as he then was at p.9: "The question . . . is one of interpretation; but it depends upon more than the mere construction of language. The considerations which must be taken into account include the character of the transaction, the nature of the subject matter and the purpose of the particular provision to be interpreted." In the end it emerges that the agreement achieves exactly what is contemplated in the recital. The agreement contains the promise of the artiste to render specified acting services upon specified terms and conditions. Those terms and conditions provide for payment of a fee negotiated by reference to the number of "playings" of the film contemplated, and which are "granted" in respect of the current total negotiated fee, but with provisions for further negotiations if those playings are exceeded. All is to determine a proper fee for the services.

Having regard to the character of the transaction, the nature of its subject matter, the reality as between the parties, of what was being sold and bought, the purpose of the provisions in issue and the provisions of the contract itself concerning replays additional to those specified in the contract, I do not doubt that upon the proper interpretation of the contract the total negotiated fee is the remuneration for the services to be performed under the contract and for nothing else. Considerations similar to those discussed in relation to the first document, are applicable in relation to the second, but the terms of the latter are insufficiently certain to enable a concluded view as to the effect thereof to be reached in these proceedings.

I agree with the observations of my brother Jenkinson relating to jurisdiction in this Court in this application for the interpretation of an award under s.110 of the Act.

I concur in the order proposed by him and would myself make that order.

JUDGE2

I have had the opportunity of reading the reasons for judgment prepared by Jenkinson J., which set out the order against which the appeal is brought, the relevant provisions of the award and the terms of the two documents tendered in evidence. I agree with him that his conclusions are, in substance, the conclusions to which Northrop J. came but that, because of the terms of the order under appeal, the Court should allow the appeal and make the orders proposed by Jenkinson J., with whose reasons for judgment I am in general agreement.

I agree with the opinion he has expressed that, on an application under s. 110 of the Conciliation and Arbitration Act 1904 (the Act) for the interpretation of an award, it is undesirable that the identity of persons bound by the Court's order should be ascertainable only by a search of the Court's file and by reference to the transcript of the hearing but that, because of the defects in the proof of service of the application, the order of this Court should not refer to the matter of what organizations or persons are bound by the order. I should add that, on the argument briefly advanced in this matter, I am unable to accept the submission put by the appellant that the members of an organization registered under the Act would be bound by an interpretation made under s. 110 where the organization (but not its members) had been served as a respondent to the application (compare and contrast s. 110(3) and s. 61(f) of the Act).

In my opinion, there should be no order as to costs, having regard to the "usual practice (that) the Court makes no order as to costs" in applications under s. 110 (per Dunphy and Eggleston JJ. in Re Liquor Trades (Hotel and Wine Saloons) Award 1959 (1962) 5 F.L.R. 89 at p. 94. In saying that I am not expressing any view as to whether the Court has power to order costs in respect of an application under s. 110, having regard to the provisions of s. 197A of the Act, (see judgment of Northrop J. in Viner and others v Australian Building Construction Employees Builders' Labourers' Federation (1981) 38 A.L.R. 550 at 552-3 cp. judgment of Ellicott J. in Stapleton v African Lion Safari Pty. Ltd. (1982) 43 A.L.R. 385).

JUDGE3

Appeal against an order giving, pursuant to section 110 of the Conciliation and Arbitration Act 1904, an interpretation of an award.

The Actors Television Programs Award 1973 includes provisions concerning annual leave in clause 16, which reads:

"16 - ANNUAL LEAVE

(a) An employee shall be allowed by his employer a continuous period of three weeks annual leave on full pay, exclusive of public holidays, once after each completed year of service (less the period of annual leave) and shall prior to going on leave be paid in addition to payment for the three weeks above-mentioned a sum equal to 17 1/2% of such payment provided however that for leave becoming due and taken on or after 1 August 1976 the length of such leave shall be extended to four weeks and that the said payment of 17 1/2% will be calculated on the amount of that leave.

(b) Annual leave shall be given at a time fixed by the employer within three months from the date when the right to leave has accrued. An employer may allow annual leave to an employee before the right thereto has accrued due but where leave is taken in such a case a further period of annual leave shall not commence to accrue until after the expiration of the twelve months in respect of which annual leave had been taken before it accrued. Where annual leave has been granted to an employee pursuant to this subclause before the right thereto has accrued due and the employee subsequently leaves or is discharged from the service of the employer before completing the twelve months continuous service in respect of which the leave was granted the employer may deduct the amount paid in excess of leave accrued due from any remuneration payable to the employee upon the termination of the employment.

(c) Employees shall be given at least eight weeks notice of the date of commencement of their leave except where an employee has not been employed for a sufficient period to allow for such notice to be given.

(d) (i) Where an employee's engagement terminates and the employee has become entitled to annual leave the employer shall be deemed to have given the annual leave (or such portion of it as has not been taken by the employee) from the date of termination of the engagement and shall forthwith pay to the employee, in addition to all other amounts due to him, his ordinary pay for the period of leave due.

(ii) In respect to any period of employment which is less than twelve months, such period being computed from the date of the commencement of the engagement (or, where the employee has during the engagement become entitled to annual leave, computed from the date on which he became entitled to annual leave), the employer shall forthwith pay to the employee, in 3/49ths of his total earnings for such period of employment or in the case of leave or any part thereof becoming due after 1 August 1976, one-twelfth of his total earnings for that period.

(e) Where an employer closes down production or a section thereof for the purpose of allowing annual leave to all or the bulk of the employees engaged in production or section or sections concerned the following provisions shall apply:

(i) The employer by giving not less than one months' notice of his intention so to do may stand down for the duration of the close down all employees concerned and allow to those who are not then entitled to three or four full weeks' leave pursuant to subclause (a) hereof paid leave on a proportionate basis at the appropriate weekly base rate for 2.3 hours or 3.08 hours respectively for each five ordinary working days worked.

(ii) An employee who has qualified for three or four full weeks' leave pursuant to subclause (a) hereof and has also completed a further week or more of continuous service shall be allowed his leave in accordance with subclause (a) hereof and shall also be paid on a proportionate basis at the appropriate weekly base rate for 2.3 hours or 3.08 hours respectively for each five ordinary working days worked since the close of his last twelve monthly qualifying period.

(iii) The next twelve monthly qualifying period for each employee affected by such close down shall commence from the day on which the production or section or sections covered is re-opened for work. Provided that all time during which an employee is stood off without pay for the purposes of this subclause shall be deemed to be time of service in the next twelve monthly qualifying period.

(iv) If in the first year of his service with an employer an employee is allowed proportionate annual leave under paragraph (i) hereof and subsequently within such year lawfully leaves his employment or his employment is terminated by the employer through no fault of the employee he shall be entitled to the benefit of paragraph (i) hereof subject to adjustment for any proportionate leave which he may have been allowed as aforesaid.

(f) An employer may require an employee to whom payment has been made under subparagraph 26 (c)(iii)(3) of this award to take leave without pay for the period or periods of leave (including any period for which a pro rata leave payment was made) for which the employee was paid under that clause."

The order against which appeal is brought is in these terms:

"The court orders that on the true interpretation of cl. 16 - ANNUAL LEAVE - of The Actors Television Programs Award, 1973, the expression "full pay" in sub-cl. (a) thereof, the expression "ordinary pay" in sub-cl. (d) (i) thereof and the expression "total earnings" in sub-cl. (d) (ii) thereof include payments made to a performer in respect of repeat showings of a programme when those payments are included in the "total fee" or "total negotiated fee" paid to the employee for duties performed under the terms of an engagement entered into under cl. 9 of the Award."

Clause 9 of the Award provides:

"9 - TERMS OF ENGAGEMENT

The whole of the terms of an engagement shall be specified by the employer when the engagement is made, confirmed in writing and posted to the employee or his agent not later than forty-eight hours thereafter.

Provided that when an engagement is made at a time which does not allow written confirmation to be posted as hereinbefore specified it shall be given to the employee where practicable prior to the actual commencement of the engagement.

Provided further that in the case of an employee being required by the employer to travel to an engagement the employee shall where practicable be provided with the said written confirmation prior to commencing such travel."

The evidence established that persons within the meaning of the word "employee" in clause 16 are commonly engaged by the appellants, which are bound by the Award, in employment to which the Award applies. One description of employment which the Award is expressed, by clause 5(b) thereof, to "cover" is employment as an actor in what the Award describes, in a definitional provision in clause 4 thereof, as "a dramatic production for television comprising episodes of specific duration which are not self-contained but which form part of a series of such episodes and which have a continuing theme". That is the meaning ascribed to the expressions "serial drama" and "serial comedy." The work is acting a role in a play, which is so recorded that it may be transmitted by means of wireless telegraphy as a series of television programmes, and other work associated with the satisfactory achievement of such a recording. Such actors commonly enter into agreements in writing with one or other of the appellants for employment of that kind. Two documents were tendered in evidence before Northrop J., who heard the appellants' application for an interpretation of clause 16 of the Award, each of which documents was sworn to be a typical form of such an agreement in writing. The first of the two documents was sworn to be "an example of an agreement for the employment of an actor in a sustaining or major role". The second document was sworn to be "an example of an agreement for the employment of an actor in a casual or guest role".

The first document reads:

"THIS AGREEMENT made the day of One thousand nine hundred and seventy nine BETWEEN CRAWFORD PRODUCTIONS (FEATURE FILMS) PTY. LTD. a Company incorporated under the laws of the State of Victoria the registered office of which is situate at 1 Southhampton Crescent, Abbotsford in the said State (hereinafter called 'the Company') of the one part and the Artiste whose name and address are set forth in the First Schedule of this Agreement (hereunafter called 'the Artiste') of the other part:

WHEREAS:

The Artiste has agreed to render to the Company on the terms and conditions and for the consideration hereinafter appearing the services which are more specifically referred to below.

WITNESSETH that IT IS HEREBY AGREED by and between the parties hereto as follows:

1. The Company hereby employs the Artiste to act in and render services to the Company in the professional capacity as an artiste in its television serial "COP SHOP" and in publicity and promotional material for the same including all necessary rehearsals and dry runs therefor and the Artiste hereby agrees to serve the Company as an artiste as aforesaid and that the Artiste will perform such services in such manner as may be required by the Company during the period of this Agreement.

2. Subject to the provisions of Clause 3 below the Artiste hereby grants to the Company the exclusive and unlimited television playing rights:

(a) throughout Australia in each television area PROVIDED THAT at the completion of four transmissions of any episode of the serial in each television area in Australia (or such greater or lesser number of transmissions for which payment shall not be exactable for re-use rights as may be decided in accordance with any industry agreement which may be reached from time to time between the Federation of Australian Commercial Television Stations, the Film Production Association of Australia and the Actors' and Announcers' Equity Association of Australia) the Artiste shall grant rights to the Company to further transmissions on such terms and conditions as shall take due account of and shall not be inconsistent with any agreement for the time being in operation relating to replaying rights, including but not limited to any agreement having as its parties the member stations of the Federation of Australian Commercial Television Stations the member companies of the Film Production Association of Australia and the Actors' and Announcers' Equity Association of Australia. The Company hereby indemnifies and undertakes to keep indemnified the Artiste against any liability incurred by the Artiste as a result or consequence of breach by the Network to which the Company is contracted for the production of the television series which is specific in the Second Schedule hereto.

(b) throughout the rest of the world for not more than two playings of the serial PROVIDED THAT it is expressly agreed that this shall not apply in the event of the serial being sold in the United States of America for a commercial national network release in which event further terms are to be negotiated between Crawford Productions (Feature Films) Pty. Ltd. and Actors' and Announcers' Equity Association of Australia.

3. The Company shall pay the Artiste by way of remuneration for his or her services and for the above-mentioned limited rights the sum set forth in the Third Schedule hereto. The sum set forth in the Third Schedule hereto comprises payments made as remuneration for the following rights:

(a) Payment for first playing - Basic negotiated fee

(b) Residual payment for first repeat - 35% of basic negotiated fee

(c) Residual payment for second repeat - 25% of basic negotiated fee

(d) Residual payment for third repeat - 10% of basic negotiated fee

(e) Rights in the series for two playings for the rest of the world with the exclusion of a network sale in the United States of America - A further 15% of basic negotiated fee payable upon sale (which payment shall increase by the same percentage increase, if any, which has occurred since the date of the initial engagement of the artiste in the minimum rate for a performer engaged by the week provided by paragraph (1) of sub-clause (a) of clause 10 of the Actor's Television Programmes Award, 1973).

4. It is understood that the fee per block specified in the Second Schedule hereto will be the complete remuneration of work done by you in association with that block including location videotaping the week before studio videotaping, the studio videotaping week itself, and pick-ups, re-shoots and post-sync. subsequent to the week of studio videotaping.

5. Notwithstanding anything herein contained if at any time during this Agreement or any extension thereto the station or network to which the Company is contracted for the production of the serial or the Company exercises its right to cancel or suspend or otherwise not proceed with further episodes of the serial the Company will give the Artiste notice in writing within seven (7) days of the exercise of such right or rights and this Agreement shall terminate or be suspended at date of completion of the current videotaping consequent upon the exercise of such right or rights but the duration of such notice shall not in any event be less than four (4) weeks.

6. In the event of the Artiste being unable at any time to fulfil the Artiste's obligations under this Agreement due to severe illness incapacity or other like reason (of a duration of not less than twenty-eight (28) consecutive days) or habitual inability to attend to the Artiste's duties for any cause whatsoever the Company shall have the right and option by written notice to the Artiste either to cancel or suspend this Agreement for such period as it shall see fit without obligation to compensate the Artiste in any way.

7. The Artiste hereby undertakes during the period of employment under this Agreement or any extension thereof the Artiste will:

(a) At all times and in all respects carry out the duties assigned to the Artiste by the Company in a properly skilled, co-operative and capable manner and obey and comply with all lawful orders and directions given by the Company.

(b) Not at any time make any visual appearances on television without the prior consent of the Company first had and obtained, such consent not to be unreasonably withheld, provided that no interruption or dislocation shall thereby be occasioned to the production of any episode in the series or any rehearsal therefor.

(c) Not at any time associate himself by name with any commercial product on any medium.

(d) Generally exercise the Artiste's skills and talents in a fully professional manner in the interest of and for the benefit of the Company.

8. The parties hereto hereby agree that this Agreement is subject to the provisions of whichever of the undermentioned agreement is in force from time to time in relation to residual rights and the number of repeat performances as if such provision of such agreement for the time it is in force were specifically incorporated in this Agreement, namely:

(1) Any industry agreement entered into between the member stations of the Federation of Australian Commercial Television Stations and Actors' and Announcers' Equity Association of Australia in accordance with the Terms of Settlement annexed hereto which shall form part of this Agreement, or alternatively

(2) If an agreement in accordance with paragraph (1) of this Clause is not entered into at the time mentioned in and in accordance with the said Terms of Settlement then in accordance with the provisions of any agreement entered into as provided for in such Terms of Settlement to which the Seven Network, Crawford Productions Pty. Ltd. and Actors' and Announcers' Equity Association of Australia are parties, or alternatively

(3) Any other agreement as to such matters which may be in force binding on the Company and the Artiste.

9. The Artiste shall not at any time during the Artiste's service hereunder or after the termination of such service divulge to any person any information or fact relating to the production of any programmes or episodes of the said serial in which the Artiste is or has been engaged during the Artiste's period of service hereunder or in any way relating to the business of any of the Companies in the Crawford Group which shall have come to the knowledge or attention of the Artiste in connection with or incidental to the Artiste's service hereunder the disclosure of which would or may cause damage loss or embarrassment to the Company or to any of the Companies in the Crawford Group of Companies.

10. Nothing in this Agreement shall be construed as precluding the Company from terminating the Artiste's services hereunder summarily for causes of breach of the provisions of this Agreement or of the Artiste's obligations under this Agreement disobedience of orders misconduct or any other conduct or insubordination which in the opinion of the Company or of its Managing Director is of such a degree or nature as to be incompatible with the continuance of the Artiste's service PROVIDED THAT the powers of summary dismissal contained in this clause shall not be exercised against the Artiste capriciously or (in relation to any matter other than breach of this Agreement or breach of the Artiste's obligations thereunder) unless due warning on at least one prior occasion has been given to the Artiste.

11. Save in accordance with the written permission of the Company first had and obtained the Artiste undertakes to abstain from giving any interviews information or expression of opinion or material for publicity for press purposes whether verbal documentary or in the nature of illustration or howsoever otherwise to any representative of the press radio or television or any other person or company whatsoever during the currency of this Agreement.

12. It is hereby expressly agreed and declared that the Artiste shall not have the right or authority at any time or in any respect whatsoever to pledge the credit of the Company or any companies in the Crawford Group or to incur any debts liabilities or obligations in the name of the Company or any member companies in the Crawford Group.

13. The Company shall have an option to extend this Agreement for the further period mentioned in the Second Schedule hereto provided that such option is exercised by the Company by notice in writing forwarded to the Artiste prior to the expiration of the aforesaid period of service and upon exercise of such option the terms and conditions of this Agreement with all necessary adaptations shall apply to the period of the extended term.

14. The Company shall have the sole and exclusive right and liberty at any time and from time to time as and wherever may seem fit to exploit and merchandise for its own use and benefit absolutely the said television serial and all parts or incidents thereof for script or other material therefor respectively including use or exploitation in all media or by any other means whatever and including the use or exploitation of the Artiste's photograph, image, likeness, voice, description or character and/or the character in which the Artiste is depicted in the said serial or any episode thereof (whether alone or in conjunction with any other person or persons) and including the right and liberty of the Company to turn any of the aforesaid matters to its own account as it may see fit but nothing in the above will entitle the Company to theatrical and cinema rights with respect to the Artiste in addition to the said serial without the consent in writing of the Artiste.

15. Any notice required to be given hereunder by the Company to the Artiste shall be sufficiently given if handed personally to the Artiste or posted by ordinary prepaid paid in an envelope addressed to the Artiste at the Artiste's last known residential address or care of the Artiste's last known Agent.

16. The provisions of the Actors' Television Programmes Award, 1973, shall while the same remains in operation apply to this Agreement with all substitutes and/or necessary adaptations and shall be read and construed subject to such substitutions and/or adaptations as forming part of this Agreement.

17. Where applicable for the purpose of this Agreement, the singular shall include the plural and vice versa.

18. Any special provisions contained in the Third Schedule hereto shall be complied with and observed by the parties hereto as if such provisions were specifically set forth in the body of this Agreement.

IN WITNESS WHEREOF the parties hereto have duly executed this Agreement on the day and year first hereinbefore written.

SIGNED on behalf of CRAWFORD )
PRODUCTIONS (FEATURE FILMS) )
PTY. LTD. )
in the presence of: )

Witness

SIGNED by the said: )

in the presence of: )

Witness

FIRST SCHEDULE

NAME OF ARTISTE: ROSIE BAILEY

ADDRESS OF AGENT: CAMERONS MANAGEMENT

120 Victoria Street, POTTS POINT Sydney 2011.

SECOND SCHEDULE

DATE OF COMMENCEMENT

OF ENGAGEMENT: Monday 7th December 1981

PERIOD OF ENGAGEMENT: For Ten (10) production

weeks commencing on Monday 7th December 1981

REMUNERATION: During the Period of

Engagement the Company shall pay to the Artiste the sum of $358.90 per production week made up as follows:-

(a) Basic Negotiated Fee 211.10

(b) Australian rights to three (3) replays (as per Clause 3 (b), (c) & (d)) 147.80

TOTAL NEGOTIATED FEE $358.90

PERIODS OF EXTENSION

OF ENGAGEMENT BY

OPTION: (a) Ten (10) production

weeks commencing on Monday 15th March, 1982 and concluding on Friday 28th May, 1982 with notice of intention to be given in writing by the Company not later than Friday, 12th February, 1982.

(b) Ten (10) production weeks commencing on Monday 31st May, 1982 and concluding on Friday 6th August 1982 with notice of intention to be given in writing by the Company not later than Wednesday 28th April, 1982.

(c) The remuneration payable to the Artiste for a minimum of two (2) episodes for each production week covered by sub-paragraphs (a) and (b) above shall be $358.90 made up as follows:-

(a) Basic Negotiated Fee 211.10

(b) Australian rights to three (3) replays (as per clause 3 (b), (c) & (d)) 147.80

TOTAL NEGOTIATED FEE $358.90

THIRD SCHEDULE

1. The Company agrees to employ the Artiste in a minimum of two (2) episodes per production week or failing such in whole or in part to remunerate the Artiste for ordinary time without overtime as though she were so employed. The Company shall have no responsibility to the Artiste to utilise the services of the Artiste during any period for which the Artiste is paid.

1. The Company agrees to pay the Artiste a Living-Away-From-Home allowance of $21.10 per production week during the Period of Engagement under this Agreement, such allowance to be increased to $66.10 for each production week worked by the Artiste after the exercise of the Options contained in the Second Schedule.

1. The Company agrees to provide the Artiste with one (1) return economy air flight ticket (Melbourne/Sydney/Melbourne) during each week of the Period of Engagement.

1. The Company agrees to provide the Artiste with a minimum of three (3) and a maximum of five (5) nights room only accommodation together with a meal allowance of $7.00 per day during each production week in which the Artiste is engaged under this Agreement.

1. The Company shall provide the Artiste with taxis from her place of accommodation in Melbourne to location/studio and return.

1. Notwithstanding anything hereinbefore contained the Company shall have the right to make deductions from the Artiste's fee and allowances for any day or days on which she cannot be employed under this Agreement because of any industrial dispute."

It was agreed between counsel for the appellants and counsel for the second-named respondent to the application, which was the only respondent to the application to enter an appearance, that in clause 3 of the first document the expression "Third Schedule" should be understood as "Second Schedule". Notwithstanding clause 8(1) of the first document, nothing which might answer the description "Terms of Settlement" was annexed to that document, and there was no evidence or agreement as to what it was that the expression "Terms of Settlement" designated. Nor was there evidence or agreement between the parties to the appeal as to whether any agreement of a description contained in sub-clause (a) of clause 2 or contained in sub-clause (1) or (2) or (3) of clause 8 had been made.

The second document reads:-

CRAWFORD
PRODUCTIONS (FEATURE FILMS) PTY. LTD.

TERRY TRIMBLE
C/- ACTIVE 25TH JANUARY 1982

RE: Engagement in COP SHOP.

BLOCK NO: 11898 NO. OF EPISODES: 395 PART:
BROWNE

We refer to our telephone conversation of with and confirm your engagement in the above mentioned programme, subject to the terms and conditions of this letter.

The terms and conditions covering this engagement are contained in the "Actors' Television Programmes Award 1973", and this award shall be read and construed as forming part of the contract between you and this company and where silent, the terms and conditions of this award shall operate.

The dates and tentative times for this engagement are as follows: -

O.B. - Locations to be advised.

WEDNESDAY 20 TH JANUARY 1982 0845 - 1200

REHEARSALS - Crawford Productions.

MONDAY 25TH JANUARY 1982 1115 - 1215

VIDEOTAPING - Cambridge Studios, 288 Coventry Street, South Melbourne.

TUESDAY 26TH JANUARY 1982 1630 - 1815

PLEASE NOTE: - The above finishing times are tentative finishing times, however, each of your calls is an eight hour call.

PLEASE NOTE: - The above tentative times are to be taken as confirmed unless you are notified of a change and such notification shall be advised by 6.00 p.m. on the day prior to each of the calls above. the starting times shown above are the times you are required to attend the studio, rehearsals or location.

FEE:

The company shall pay the artiste by way of remuneration for his services and for the limited rights herein granted the sums set forth below.

(a) Payment for first paying - BASIC
NEGOTIATED FEE $50.65

(b) Residual payment for 1st repeat - 35% OF
BASIC NEG. FEE $17.73

(c) Residual payment for 2nd repeat - 25% OF
BASIC NEG. FEE $12.66

(d) Residual payment for 3rd repeat - 10% OF
BASIC NEG. FEE $5.06

TOTAL FEE $86.10 x 3

PLUS HOLIDAY PAY ON GROSS EARNINGS. (EXCLUDING RESIDUALS)

FOR INTERSTATE ARTISTES ONLY:

TRAVEL:

You will be advised of the arrangements made with T.A.A. for your flights to and from Melbourne after confirmation of schedules. Your tickets will be made available for collection at the airport of the day of your departure.

ACCOMMODATION:

Accommodation will be reserved for you at the Travelodge, and breakfast, to the maximum value of $2.00 will be available.

ADDITIONAL TERMS AND CONDITIONS:

(1) You are required to sign on each day upon arrival for work and sign off at the completion of each day's work before leaving.

(2) You will make your services available for pick-ups or re-shoots which may become necessary. You will be remunerated in connection with such pick-ups or re-shoots at the rate comparable with the fee specified.

(3) You are specifically engaged under this contract on the basis of your skill and competence (which you hereby warrant) as an actor suitable for the role in which you are intended to be cast.

FOR OUR RECORDS WE SHOULD BE PLEASED IF YOU WOULD SIGN THE ENCLOSED DUPLICATES OF THIS AGREEMENT AND FORWARD IT TO US BY RETURN MAIL.

Unless this signed contract is received by us within 48 hours, we reserve the right to recast.

Yours faithfully,
CRAWFORD PRODUCTIONS (FEATURE FILMS) PTY. LTD.

ROSALIND MARSDEN
COP SHOP - CO-ORDINATOR

SIGNED IN ACCEPTANCE OF THIS AGREEMENT: . . . . . . . . . .

DATED: . . . . . . . . . ."

For the description of work under present consideration the Award prescribes weekly minimum rates of pay which vary in accordance with the number of episodes which the actor plays in the week and a daily minimum rate which may be paid to an actor engaged by the day who is not required to work in more than one episode in a week, and an hourly rate.

This Court was not informed what significance the figures and letter in the second document, "$86.10 x 3", have, or in respect of what period of time the "Total Fee" in that document is payable. But a variation of the Award which was expressed to operate "from the beginning of the first pay period which commenced on or after 7 May 1981" prescribed $50.66 as the minimum daily rate of pay in respect of the description of employment under present consideration and the agreement seems to be in respect of three specified days within a period of 7 days. I am inclined to suppose that the second document specifies a weekly payment of $258.30 ($86.10 x 3) for a working week of 3 days. But whether employment under that document was intended to endure until 26 January 1982 or until 395 episodes of "Cop Shop" should have been recorded, neither the document nor the rest of evidence discloses.

The interpretation of clause 16 of the Award which the appellants sought was for the purpose of enabling a determination of the questions whether an actor employed on the terms expressed in the first document would for the purposes of clause 16(a) of the Award be regarded as having been on a "full pay" of $211.10 per week or of $358.90 per week or of some other weekly amount; whether an actor so employed would for the purposes of clause 16(d)(i) of the Award be regarded as having been on "ordinary pay" of $211.10 per week or of $358.90 per week or of some other weekly amount; and whether for the purposes of clause 16(d)(ii) of the Award the "total earnings" of an actor so employed would be calculated at the rate of $211.10 per week or of $358.90 per week or of some other amount per week. A further purpose of the application, albeit a purpose the achievement of which was not so sedulously pursued on the hearing of the appeal, was to enable a determination of similar questions in relation to an actor employed on the terms expressed in the second document.

The evidence adduced by the parties, supplemented by statements of counsel for one party in which counsel for the other party concurred, showed that it was common practice among those who are interested, whether as employer or as employee, in this description of employment either to make or to accede to the assertion that an actor should receive from the employer a pecuniary consideration in respect of public television transmissions of the play after the first such a transmission. Neither counsel nor the evidence made it quite clear whether it was the transmission of any episode of the series or the transmission of the series which should attract such a consideration, although the latter seems more likely. From the evidence it might be inferred that those interested persons conceived an actor's participation in a play recorded for television transmission as conferring on him some right or interest in law with respect to repetition of public television transmission of the play. Counsel for the parties declared themselves unaware of the existence of any legal right or interest of such a kind. I know of no such a right or interest. There is nothing in the Award which suggests that the employee may have an interest, or an expectation of payment, in respect of the television transmission of his image or his voice, except clause 27, which provides:

"27 - CREDITS

All lead and main supporting performers shall receive cast credits. Credits shall be visual and legible. Such cast credits shall provide character identification in addition to the performer's name."

The appellants' submission was that each of the weekly payments of $147.80 to which reference is made in the Second Schedule to the first document, and the weekly payment, if such it be, of $106.35 (3 x ($17.73 + $12.66 + $5.06)) in pursuance of the provisions contained in the second document, was in exchange, not for the actor's service in his employment, but for his abandonment, or perhaps his assignment to his employer, of that which the parties to the contract of employment conceived as a right or interest of the actor with respect to the second, third and fourth public television transmissions of the play in Australia, and that therefore neither the sum of $147.80 (but only the sum of $211.10) nor the sum of $106.35 (but only the sum of $151.95 (3 x $50.65)) was "pay" or "earnings", within the meaning of either word in clause 16 of the Award. Upon its proper construction each of the word "pay" and the word "earnings" meant the monetary consideration payable in remuneration of the work of the employe, according to the appellant's submission, and neither word comprehended a monetary consideration given in exchange for abandonment or assignment of a right or an interest with respect to the television transmission of the recording which the employe's work had contributed to achieve.

The major premise of the appellants' submission - that neither "pay" nor "earnings" comprehends money received only for relinquishing a right or an interest concerning television transmission - was not denied by Mr. Gray of counsel for the second-named respondent. Nor did he advance the submission that the relinquishment, or a promise concerning the exercise, of a pretended right which is unknown to the law cannot afford a good consideration in law. His submission was that the terms of the first document, and particularly the terms of clause 3 and the Second Schedule thereof, were inconsistent with any conclusion but that the entire sum of $358.90 is promised - and each of the component parts of that sum which clause 3 and the Second Schedule disclose is promised - in consideration of the work which the actor promises, by clause 1, to perform. If that be so, Mr. Gray submitted, the word "pay" and the word "earnings" includes an amount of $358.90 paid in performance of the employer's promise in respect of any relevant week.

The employer's promise, by clause 3, is to "pay the artiste by way of remuneration for his or her services and for the above-mentioned limited rights the sum set forth in the Third Schedule hereto". (That is to be understood as a reference to the Second Schedule.) Of the three sums of money each of which is "set forth" twice in the Second Schedule, reference to the sum of $358.90 is in my opinion intended by the expression "the sum set forth in the Third Schedule" : so much can, I think, be confidently drawn from a reading of the whole of the first document. If that be so, the terms in which the employer's promise is expressed characterise that whole sum as a payment "by way of remuneration for his or her services" as well as a payment "by way of remuneration . . . . . . for the above-mentioned limited rights." The first sentence of clause 3 therefore designates the whole sum as the consideration payment of which is promised in exchange for the rendering by the "Artiste" of the services promised in clause 1 to be rendered and for the purported grant, in clause 2, of "television playing rights." The rest of clause 3 is consistent with the first sentence, except in one respect. Since the expression "the above-mentioned limited rights" includes, if it be understood literally, those "rights" which are the subject of sub-clause (b) of clause 2 as well as those which are the subject of sub-clause (a) thereof, the first sentence of clause 3 includes the former as well as the latter "rights" in that for which payment of $358.90 is promised. The second sentence of clause 3 and the introductory phrase of sub-clause (e) of that clause are consistent with the first sentence. But the rest of sub-clause (e) discloses that a sum additional to the sum of $358.90, and additional to anything to which reference is made in the Second Schedule, may be payable in respect of "rights" which are the subject of sub-clause (b) of clause 2. The rest of clause 3 is otherwise consistent with the first sentence thereof, which must in my opinion be construed as designating by the expression "the above-mentioned limited rights" only those "rights" which are the subject of sub-clause (a) of clause 2. So, too, must the second sentence be construed, as designating by the expression "the following rights" only those rights to which reference is made in sub-clauses (a), (b), (c) and (d) of clause 3. If that construction be adopted, no sum payable pursuant to the provisions of clause 2(b) and clause 3(e) can be regarded as "pay" or as "earnings", for the purposes of clause 16 of the Award. The assertion that the sum of $358.90 "comprises payments made as remuneration for the following rights" (other than the "rights" to which reference is made in sub-clause (e)) is not inconsistent with the assertion which is made in the first sentence of clause 3 that the sum of $358.90 is paid "by way of remuneration for his or her services and for the above-mentioned limited rights" (other than the "rights" to which reference is made in sub-clause (e)), unless the former assertion is understood as an exhaustive statement of that for which the "payments are made as remuneration." There is in my opinion no reason so to understand it, when regard has been paid to the first document as a whole. That component part of the sum of $358.90 which is designated "Basic Negotiated Fee", and which in the submission of Mr. Rowlands Q.C., who appeared with Dr. Jessup for the appellants, constitutes the whole and only consideration for the actor's work, is expressly allocated by sub-clause (a) of clause 3 to the "first playing". The expression "first playing" in my opinion means the first public television transmission of what is called in clause 1 the employer's "television serial 'COP SHOP'". Although, as I have indicated, the evidence and counsel for the parties conceived the "right" or interest of the actor as one with respect to the repetition of transmission, the verbiage of clause 2 and of sub-clause (a) of clause 3 of the first document, and similar verbiage in the second document, are consistent with the existence of such a right or interest with respect to the first public television transmission of the serial.

I can find no reason to contradict the assertion expressed, by the parties to an agreement in the terms of the first document, in the employer's promise of payment that the whole of what is designated in the Second Schedule as "Total Negotiated Fee" is payment in consideration of the employe's work. The conception of a promise of repetition of a single act - payment of a specified sum of money upon the expiration of specified periods of time - in exchange for relinquishment or assignment once and for all of specified rights and for performance during each such a period of the duties of the promisee's employment by the promisor offends no principle of the law of contract. If contracting parties choose thus to exchange consideration, each performance of the promised repetitive act in my opinion brings that specified sum within the meaning of the word "pay" and of the word "earnings" in clause 16 of the Award, unless the parties were to apportion, consensually, that specified sum between the relinquishment or assignment of rights on the one hand and the performance of the duties of the employment on the other. The first sentence of clause 3 of the first document is inconsistent with any supposition of such an apportionment. It might be suggested that the rest of clause 3 is not. But, as Mr. Gray pointed out, if the rest of clause 3 is understood as effecting such an apportionment, it follows that the first document expresses an agreement performance of which is in breach of the provisions of the Award with respect to minimum rates of pay, for such an understanding leads to the conclusion that no part of the sum of $358.90 is apportioned to performance of the duties of the employment. That part of clause 3 which follows the first sentence thereof must, in my opinion, be understood as nothing but an exposition of the way in which the sum of $358.90 was calculated, conjoined with an expression of the parties' agreement concerning the matters to which reference is made in clause 2(b) and in clause 3(e). Only thus can that part of clause 3 be construed consistently with the first sentence of the clause and only thus can an agreement in the terms of the first document be reconciled with the Award.

If the assumption be contradicted, that what in the documents are designated "rights" are capable of being the subject of a good legal consideration, then the same conclusion follows : that the whole of what is designated "Total Negotiated Fee" and "Total Fee" is "pay" and "earnings". Mr. Rowlands sought to avoid that conclusion by submitting that the evidence would justify findings that would disclose good legal consideration in compromise of claims bona fide made and disputed with respect to the pretended "rights". But the evidence, if believed, suggests a finding that the parties to agreements of the kind which are under consideration are not in dispute : they are, the evidence would suggest, in accord as to the legal reality of what they designate as "rights".

Similar considerations may be thought to lead to similar conclusions concerning the second document. The meaning of the expression "the limited rights herein granted" in the second document can be ascertained only from sources other than the document itself, the terms of which barely hint at a meaning. It is a question, which I will consider later, whether any interpretation of clause 16 of the Award ought to be given with reference to this second document.

The conclusions I have reached are, in substance, the conclusions to which Northrop J. came, as his Honour's reasons for judgment demonstrate. But the terms in which his Honour's order is expressed do not give effect to my conclusions, and I think that they do not give effect to his Honour's conclusions. The expression "an engagement entered into under clause 9 of the Award", with which the order concludes, is apt to comprehend any engagement which satisfied the provisions of clause 9. The reasons for judgment which his Honour delivered give assurance of the correctness of what the order asserts only if the terms of such an engagement are assumed to be substantially similar to the terms of the second document or of the first document and in particular, if the terms of such an engagement are assumed to include the expression "total fee" or the expression "total negotiated fee" respectively, and are assumed to give to that expression the same meaning and conceptual operation as the expression has in the document in evidence from which it has been drawn. But none of those assumptions is stated in, or even implied by, the order. Any supposition, which other phrases in the order might provoke, that the order is to be understood to incorporate, by implied reference thereto, certain unspecified but ascertainable evidentiary material (such as the documents from which the expressions "total fee" and "total negotiated fee" have been drawn) is contradicted by the unqualified generality of the phrase "paid to the employee for duties performed under the terms of an engagement entered into under clause 9 of the Award".

The two documents with reference to which interpretation of the Award might be given appear to be copies of agreements in fact made shortly before application for the interpretation was made. But, although each is sworn to be "an example of an agreement for the employment of an actor", by which it may be understood to be such an agreement in fact made, the two documents are also described, in the sentence of the affidavit which includes the formal identification of them as exhibits, as "typical forms" of the written agreement by which, the deponent swears, the "legal relationship between each actor employed and" whichever of the appellants employed that actor is "regulated". (It is this evidence which justifies a conclusion that in this proceeding there is a "matter" which satisfies jurisdictional requirements : see Collins v. Charles Marshall Pty. Ltd. (1955) 92 C.L.R. 529 at 541-542.) In those circumstances this Court may in my opinion frame an order disposing of this appeal in terms which limit the interpretation of the Award by reference to one or both of those documents, without expressing any opinion concerning those aspects of the jurisdiction conferred by s. 110 which were the subject of observation in Master Builders Association of Victoria v. Australian Building Construction Employees and Builders' Labourers' Federation (1981) 35 A.L.R. 284 at 287 and in the reasons of Northrop J. for his decision of this application. (Cf. Re Rubber Plastic and Cable Making Industry Award (1963) 8 F.L.R. 395 at 396-397; Re Clerks (Shipping) Award; ex parte Lloyds Timber Mills Ltd. (1954) 78 C.A.R. 201; Re The Coal Mining Industry Award (1951) 71 C.A.R. 102.)

Each of the documents is so singular, and the other evidence devoid of information as to any other means which are of might be employed by interested persons of giving contractual expression to conceptions similar to those with which the documents deal, that in my opinion no more can be done than to give an interpretation related specifically to the documents or to one of them. I would propose that the appeal be allowed, the order made below be set aside, and that in lieu thereof this Court make the following declaratory orders:

That the words "full pay" in clause 16(a) of the Actors Television Programs Award 1973 as in force on the date of filing of this application comprehend - in relation to employment as a "performer" in "serial drama" or "serial comedy" (within the meaning ascribed by clause 4 of the said Award to each of those three expressions respectively) pursuant to an agreement in writing in the form set forth in the Schedule to this order, made between two parties of whom the employer is bound by the said Award - the sum which is written opposite the words "Total Negotiated Fee" in the Second Schedule to the said agreement in writing.

That the words "ordinary pay" in clause 16(d)(i) of the Actors Television Programs Award 1973 as in force on the date of filing of this application comprehend - in relation to employment as a "performer" in "serial drama" or "serial comedy" (within the meaning ascribed by clause 4 of the said Award to each of those three expresions respectively) pursuant to an agreement in writing in the form set forth in the Schedule to this order, made between two parties of whom the employer is bound by the said Award - the sum which is written opposite the words "Total Negotiated Fee" in the Second Schedule to the said agreement in writing.

That the words "total earnings" in clause 16(d)(ii) of the Actors Television Programs Award 1973 as in force on the date of filing of this application comprehend - in relation to employment as a "performer" in "serial drama" or "serial comedy" (within the meaning ascribed by clause 4 of the said Award to each of those three expressions respectively) pursuant to an agreement in writing in the form set forth in the Schedule to this order, made between two parties of whom the employer is bound by the said Award - the sum which is written opposite the words "Total Negotiated Fee" in the Second Schedule to the said agreement in writing.

I would direct that there be set out in the Schedule to the order proposed the text of exhibit JTC2(b) to the affidavit of John Templar Chambers sworn the 7th day of July 1982, which I have called the first document, but deleting from that text the signatures in the testimonium and the names and address in the First Schedule and substituting in clause 3 of that text the words "Second Schedule" for the words "Third Schedule". (What I have called the first document is in fact exhibit JTC2(b), although the deponent's description of it in his affidavit mistakenly identifies it as exhibit JTC2(a)).

I would give no interpretation with reference to the second document, because the meaning of the expression "the limited rights herein granted" and the significance of the figures and letter, "$86.10 x 3", are not sufficiently disclosed by the document or by the evidence. I doubt whether the Court should give an interpretation with respect to the first document. The making of an agreement in the terms of exhibit JTC2(b) (the first document) is no concern of this Court in this proceeding. But the parties who appeared before Northrop J. and before this Court, and particularly the appellant Crawford Productions (Feature Films) Pty. Ltd., which according to the evidence was a party to an agreement in the terms of that document, provided this Court with no explanation as to why exhibit JTC2(b) includes nothing which might answer the description "the Terms of Settlement annexed hereto which shall form part of this Agreement", and gave this Court no response to enquiry as to whether any of the agreements the making of which is contemplated in clauses 2(a) and 8 had in fact been made. In those circumstances I doubt whether any interpretation ought to be given. But I have concluded that the parties should not at this stage be denied whatever benefit they may derive from the orders proposed.

Proof of service of the application on the respondents to the application who have not appeared was offered by affidavits filed some days after this Court had reserved its decision on the appeal. The proofs are defective in several respects. None of the three affidavits shows the place at which the copy of the application was left to have been the registered office, the principal place of business or the principal office of the corporation or organization, or indicates the apparent age of the person with whom the document was left (see 0.7, R. 2(1)(b)), or that the copy was sealed (see 0.7, R. 1(2)).

It is in my opinion undesirable that the identity of persons bound by the decision of the Court upon an application under s. 110 for the interpretation of an award should be ascertainable only by search of the Court file of the application and by reference to the transcript of the hearing. When questions concerning service of the application and the operation of s. 110(3) were raised by members of this Court during the hearing of the appeal, it was suggested by Mr. Rowlands that the members of an organization registered pursuant to the Act which had been served as a respondent to an application under s. 110 would be bound by the decision of the Court upon the application, and Mr. Rowlands supported the suggestion by reference to s. 61 of the Act, particularly s. 61(f). (Cf. Harrison v. Goodland (1944) 69 C.L.R. 509.)

Section 61 provides:

"An award determining an industrial dispute is binding on -

(a) all parties to the industrial dispute who appeared or were represented before the Commission;

(b) all parties to the industrial dispute who were summoned or notified, either personally or as prescribed, to appear as parties to the dispute, whether they appeared or not;

(c) all parties who, having been notified, either personally or as prescribed, of the industrial dispute and of the fact that they were alleged to be parties to the dispute, did not, within the time prescribed, satisfy the Commission that they were not parties to the dispute;

(d) in the case of employers, any successor to, or any assignee or transmittee of, the business of a party to the dispute or of a party bound by the award, including any corporation which has acquired or taken over the business of such a party;

(e) all organizations and persons on whom the award is binding as a common rule; and

(f) all members of organizations bound by the Award."

Section 110 provides:

"(1) The Court is empowered, subject to this section, to give an interpretation of an award.

(2) An application for the interpretation of an award may be made by the Minister or an organization or person bound by the award.

(3) The decision of the Court upon the application is final and conclusive and is binding on all organizations and persons bound by the award which or who have been given an opportunity of being heard by the Court."

A comparison of the two sections makes it clear that, although the members of an organization bound by an award are themselves bound by the award, only those members of an organization bound by a decision under s. 110 who had been given an opportunity of being heard by the Court would be, by virtue of the operation of s. 110(3), themselves bound by the decision. The final clause of sub-section (3) of s. 110 was added by an amendment enacted in 1958, which thereby drew a clear distinction between s. 61(f) and s. 110(3). To show that an organization had been made respondent to an application and duly served with the application, or that an organization had appeared and been heard by the Court on the hearing of the application, or that the decision of the Court upon the application is binding on an organization, is not to show, as it seems to me, that any member of the organization has been given an opportunity of being heard by the Court. But the Court did not hear argument on the point, and I express no concluded opinion.

If satisfactory proof of service had been given, the Court's order should in my opinion have been preceded by a recital of due service and failure to appear. If the Court were to make a declaration that the decision upon an application under s. 110 is binding on named persons, that might be thought to imply that no other person was bound. In the unfortunate circumstances of this appeal I think that the best course is to omit from the order all reference to the matters with which s. 110(3) deals. There should in my opinion be no order as to costs.