Fairfax Media Publications Pty Limited; The Age Company Pty Limited; Fairfax Digital Australia & New Zealand Pty Limited

[2020] FWCA 4374

[2020] FWCA 4374

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fairfax Media Publications Pty Limited; The Age Company Pty Limited; Fairfax Digital Australia & New Zealand Pty Limited
(AG2020/1993)

THE AUSTRALIAN FINANCIAL REVIEW, THE SYDNEY MORNING HERALD, THE AGE, BRISBANE TIMES AND WATODAY - JOURNALISTS ENTERPRISE AGREEMENT 2020

Journalism
COMMISSIONER BOOTH	BRISBANE, 10 SEPTEMBER 2020

Application for approval of The Australian Financial Review, The Sydney Morning Herald, The Age, Brisbane Times and WAtoday - Journalists Enterprise Agreement 2020.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) by Fairfax Media Publications Pty Limited, The Age Company Pty Limited, and Fairfax Digital Australia & New Zealand Pty Limited (the Applicants) for approval of The Australian Financial Review, The Sydney Morning Herald, The Age, Brisbane Times and WAtoday - Journalists Enterprise Agreement 2020 (the Agreement). The Agreement is a single enterprise agreement.

[2] Mr Paul Murphy, Chief Executive of the Media, Entertainment and Arts Alliance (the MEAA), filed a Form F18 in this matter, advising that the MEAA supports approval of the Agreement by the Commission, and providing notice under s.183 of the Act that it wants the Agreement to cover it.

[3] Correspondence was sent to the Applicants on 27 July 2020, raising certain concerns in relation to the Agreement and seeking responses and undertakings from the Applicant. The Applicant filed submissions and undertakings addressing the concerns raised on 11 August 2020. The MEAA was provided with copies of the response and proposed undertakings.

[4] The matter was listed for eHearing on 5 August 2020. Any interested parties wishing to be heard in relation to the Agreement were directed to contact my Chambers to be heard on 10 August 2020. No parties contacted my Chambers.

[5] The undertakings meet the requirements of s.190(3) of the Act and I have accepted them. As a result, the undertakings are then to be a term of the Agreement and are attached to this Decision as Attachment A.

[6] I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 9.9.1(l) regarding parental leave;

•  Clauses 9.1, 9.1.3, 9.1.4(e), 9.2.2, 9.2.3-9.2.7, 9.2.8(iii) in relation to annual leave;

•  Clauses 4.6 in relation to notice of termination;

•  Clause 4.9 in relation to redundancy pay;

•  Clause 9.12.1 in relation to family and domestic violence leave.

[7] However, noting the NES precedence undertaking, and the further undertakings provided by the Applicant, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[8] It is also noted that the flexibility term at clause 9.5 does not appear to be consistent with the requirements of the Act. Accordingly, the model flexibility term set out in the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[9] Concerns were raised in relation to clause 15.4 of the Agreement as prima facie, the clause appeared to provide for unlawful deductions. In accordance with s.326(1) of the Act, I note that an unlawful term has no effect.

[10] Subject to the matters raised at paragraphs [2]-[10], I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[11] In accordance with s.201(2), I note that the Agreement covers the MEAA.

[12] The Agreement is approved and, in accordance with s.54 of the Act and clause 1.3.1 of the Agreement, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 31 December 2023.

COMMISSIONER

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Attachment A.