Easterby v APN Australian Regional Media

[2016] FCCA 669

FEDERAL CIRCUIT COURT OF AUSTRALIA

EASTERBY v APN AUSTRALIAN REGIONAL MEDIA [2016] FCCA 669

Catchwords:
INDUSTRIAL LAW

Legislation:

Fair Work Act 2009 (Cth)

City Of Wanneroo v Australian Municipal, Administrative, Clerical & Services Union [2006] FCA 813

Applicant: TANYA LORRAINE LESLEY EASTERBY

Respondent: APN AUSTRALIAN REGIONAL MEDIA

File Number: BRG 807 of 2014

Judgment of: Judge Baumann

Hearing date: 13 February 2015

Date of Last Submission: 13 February 2015

Delivered at: Brisbane

Delivered on: 31 March 2016

REPRESENTATION

Solicitors for the Applicant: Self represented

Solicitors for the Respondent: DLA Piper Australia

ORDERS

1. That the Application – Fair Work Division filed 15 September 2014 be dismissed.

2. That there be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 807 of 2014

TANYA LORRAINE LESLEY EASTERBY

Applicant

And

APN AUSTRALIAN REGIONAL MEDIA

Respondent

REASONS FOR JUDGMENT

1. The Applicant, Tanya Easterby was employed by Gympie Times Pty Ltd, however incorrectly, the Applicant named “APN Australian Regional Media” as the Respondent.  I am satisfied, as conceded, that the Respondent is responsible for administering the Human Resources and payroll functions of those employers who perform work for a number of publications, including relevantly “The Gympie Times”.

2. The Applicant commenced proceedings in this Court, utilising the Small Claims List procedures under the Fair Work Act 2009.  The Applicant was unrepresented but for reasons given orally, leave was given to submissions being made by the legal representative of the Respondent.

3. The Applicant’s claim filed 15 September 2014 was heard on 13 February 2015.  The Court expresses its regret in the late delivery of these Reasons.

The claim

1. The Applicant seeks the sum of $19,479.55 comprising an alleged breach of the Journalists Published Media Award 2010 (“the award”), quantified as follows:

   Wages  $16,259.82

   Superannuation                $2,049.21

   Pre-judgment interest     $1,170.52

   Total  $19,479.55

2. The claim was summarised at Part I of the Form 5 claim form as:

   “Remuneration of Higher Duties, Super & Interest

   Wage classification 2yr cadet in a relief positon of photographer working in a higher capacity than that of pay classification & duties pertaining to a 2^nd year cadet.

   Photographer on maternity leave pay rate              $29.65

   My pay rate (2^nd year cadet wage class)                   $21.26

   Difference in hourly rate                 $8.39

   38hr week @ $8.39 = $318.82

   Remuneration of weekly wage rate difference of $318.82 + superannuation for 51 weeks.

   18 Feb 2013 – 30 June 2013 (19 wks @ $318.82)    $6,057.28

   Superannuation for same period @ 9%  $545.18

   1 July 2013 – 12 Feb 2014 (32 wks @ $318.82)      $10,202.24

   Superannuation for same period @ 9.25%               $1,504.03

   Total higher duties $ super  $18,309.03

   Pre judgment interest @ Lawtech 6.5%  $1,170.52

   TOTAL REMUNERATION  $19,479.55”

3. The Respondent (whilst not filing a Response as directed) did cause a responding affidavit by Mr Peter Read, the General Manager of The Gympie Times, to be filed on 12 January 2015.  I hereafter refer to Gympie Times Pty Ltd as “the employer”.

4. The Applicant filed an affidavit in reply on 3 February 2015 which (as explained at the hearing) was more in the form of submissions.  All this material was considered by the Court, together with the written submissions of the Respondent filed 12 January 2015 and the oral submissions.

Context to claim

1. In January 2013 the only photographer then employed by the employer, a Ms Pilcher, gave notice of her intention to take 12 months maternity leave.  Ms Pilcher had eight years of press photography experience with a daily newspaper.

2. The evidence reveals that the employer and Ms Pilcher had negotiated and agreed on a contract rate of $29.65 per hour – which is above the rate for the minimum classification for a person acknowledged by the employer, as a result of her experience, as a photographer.

3. I find, on the evidence, that the Applicant did not have equivalent experience as a press photographer to that possessed by Ms Pilcher.  The Applicant’s own resume recorded one year with the Tin Can Bay Bulletin as a “photo journalist” and four years as a “photo journalist” with The Weekly Observer.  At paragraphs 20 to 27 of his affidavit, Mr Read sets out details of the comparative skills and work experience of Ms Pilcher compared to the Applicant.  I accept that evidence.

4. The Applicant in her responding affidavit referred to an article in The Gympie Times on Saturday, 9 February 2013 noting that the Applicant was “stepping in for Renee Pilcher”.  In my view that article does not establish that the Applicant had equivalent skills to Ms Pilcher.

5. I accept the evidence of Mr Read, a person with 50 years of newspaper experience in many States, including 36 years as an Editor or General Manager for various news publications.  I accept that, as he claims at paragraph 10 of his affidavit, he has “had a great deal of experience working with journalists and photographers of all different skill levels and award classifications.”

6. Mr Read interviewed the Applicant.  He says after reviewing her resume, and although the newspaper was looking for someone with more experience than the Applicant, as the Applicant was the only person who applied for the position, she was offered the position.

7. The Applicant was employed from 4 February 2013 (until she resigned on 12 February 2014), on a 12 month fixed term employment contract dated 25 January 2013 as set out at Annexure B to Mr Read’s affidavit.

8. I accept that the primary purpose of the Applicant’s role was to take photos and write stories for publication in The Gympie Times under the direct supervision of senior editorial staff.

9. Mr Read says that:

   “It is the standard practice of the Newspaper (and in the industry more generally) to classify any new staff performing editorial work as a cadet if that person does not have acceptable industry experience or a tertiary degree that would enable them to perform work to the standard expected of an editorial employee.”

   and that as the Applicant did not satisfy those requirements; the employer classified her as a second year cadet.  The pay rates set out in the employment agreement were in accordance with that classification, namely a standard hourly rate of $21.25506 to 30 June 2013 and thereafter $21.62702.  I am satisfied that was above the award rate for a second year cadet.

10. The Applicant seeks to attack the asserted experience and qualifications of the senior editor staff.  I regard the Applicant’s allegations as irrelevant.  It is not their work experience or classification under the award that this Court is asked to consider.

11. To crystallise one of the issues, the Applicant says she is only seeking remuneration for the difference between what was paid to her as a classification second year cadet (at $21.26 per hour) and that of the photographer on maternity leave, Ms Pilcher, who was an Editorial Employee paid at a rate of $29.65 per hour.

Issues

1. For reasons set out below, the Court is asked to decide what is the correct award classification that applied to the Applicant’s employment.

2. If the Court finds that the rate of pay of the correct classification was equal or less than what was paid, the Applicant’s claim cannot succeed.

The relevant principles

1. I accept and adopt the summary of the relevant principles to be applied drawn from City Of Wanneroo V Australian Municipal, Administrative, Clerical & Services Union [2006] FCA 813 [53], set out at paragraph 25 of the Respondent’s written submissions which are set out below:

   “25.  The following principles are relevant to determining the correct Award classification.

   25.1  The starting point is considering the ordinary meaning of the relevant words used in the award.  However, these words must not be interpreted ‘…in a vacuum divorced from industrial realities’.

   25.5  Regard must be also be paid to the context and purpose of the provision or expression in the Award being construed.  The following matters are relevant to the ‘context’ of the provision.

   (a)     The context may appear from the text of the Award taken as a whole, its arrangement and the place in it of the provision under construction.

   (b)     The context is not confined to the words of the Award immediately surrounding the expression to be construed; it may be taken from the entire Award or other associated documents.

   (c) The context includes …’ideas that gave rise to an expression in a document from which it has been taken’.

   (d)     The legislative background against which the Award was made and in which it was to operate is also relevant context.”

The award

1. The award covers:

   “...employers throughout Australian in the published media industry with respect to their employees engaged in journalism in its literary, artistic and photographic branches and/or gathering, writing or preparing of news matter or news commentaries, and their employees in the classification listed in clause 13 – Classification to the exclusion of any other modern award.”

2. I accept the award identifies two categories of employees, namely:

   a)Editorial Employees (clause 13.5); and

   b)Cadet Journalists (clause 13.1).

3. Editorial employees consist of Band 1-3, with each Band consisting of a number of levels – the lower being Band 1 Level 1 and the highest being Band 3 Level 13.

4. Cadet Journalists consist of “graduate” and “standard” cadets with the rate of pay for all cadets calculated by reference to the minimum weekly rate of a Level 1 Editorial Employee.

5. To be an Editorial Employee at the minimum level, the employee must have completed the training requirements of a cadetship or its equivalent (clause 13.5(a)).  The evidence does not establish that the Applicant had any necessary tertiary qualifications or had completed a cadetship.

Analysis

1. The newspaper (employer) is entitled to assess whether the employee has sufficient qualifications, skills and experience to be categorised as an Editorial Employee.

2. In her submissions, the Applicant contends that she “has a broad range of experience, skill and qualifications accumulated over a period of twenty five (25yrs) that are covered under the award from literary, artistic, design, photographic, preparation and writing of news matter.”  She points to her previous position as the only “editorial staff member” within the now defunct independent fortnightly newspaper.

3. However, the issue is not whether the Applicant has done occasionally, over 25 years, tasks that are regularly performed by a person classified as an Editorial Employee.

4. Mr Read, a highly experienced General Manager, made an assessment of the skill levels of the Applicant – a person who had not completed a cadetship or tertiary qualifications.

5. He opined she did not meet the classification of an Editorial Employee, and nothing in the evidence persuades me that his assessment was wrong.  As a result, I agree with the submission that the classification was correct as a “standard cadet” and have had reference to clause 13.3(b) of the award.

6. I accept the evidence that even though the Applicant had limited press photography experience, it was appropriate for her to be classified as a second year cadet.

7. That was the award rate she was paid.

8. Further, I agree with the submissions of the Respondent that clause 16 of the award, allowing for an employee to be paid a higher rate when they are called upon to do work of another person in a higher position, has no application on the facts of this case.

9. The Applicant was employed under a contract for 12 months to perform the work of a photographer to her own level of skills and experience (for which, as I have found, she was appropriately classified).  Although the position she undertook had previously been undertaken by a more experienced person, it was a separate contract altogether and did not involve the Applicant conducting any “higher duties”.

Conclusion

1. The Application must be dismissed.  I so order.

2. In this jurisdiction it is appropriate to make no order as to costs.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Baumann.

Date: 31 March 2016