FremantleMedia Australia Pty Ltd T/A FremantleMedia Australia

[2020] FWCA 1570

[2020] FWCA 1570

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

FremantleMedia Australia Pty Ltd T/A FremantleMedia Australia
(AG2020/352)

FREMANTLE MEDIA AUSTRALIA PTY LTD ('NEIGHBOURS') ENTERPRISE AGREEMENT 2014

Broadcasting and recorded entertainment industry
COMMISSIONER LEE	MELBOURNE, 27 MARCH 2020

Application for termination of the Fremantle Media Australia Pty Ltd ('Neighbours') Enterprise Agreement 2014.

[1] An application has been made by FremantleMedia Australia Pty Ltd T/A FremantleMedia Australia (the Applicant) to terminate the Fremantle Media Australia Pty Ltd ('Neighbours') Enterprise Agreement 2014 (the 2014 Agreement), under s.225 of the Fair Work Act 2009 (the Act).

[1] The 2014 Agreement is an enterprise agreement made pursuant to s. 185 of the Act and has a nominal expiry date of 31 December 2015.

[2] The matter for determination is whether or not to grant the application to terminate the 2014 Agreement.

Background to the application

[3] This application was lodged with the Fair Work Commission (the Commission) on 14 February 2020. The employer’s statutory declaration filed with the application contained information relevant to the views of the employer, the effect of the termination of the employer and employees and matters relevant to the public interest consideration.

[4] The statutory declaration was made by Ms Amy Noble, Director of Business Affairs and Legal. Ms Noble declared that the 2014 Agreement previously covered employees engaged as crew members for the television program Neighbours. The 2014Agreement was replaced by the FremantleMedia Australia Pty Ltd “Neighbours” Enterprise Agreement 2019 (the 2019 Agreement), which has been in operation since 25 November 2019. The 2019 Agreement replaced the 2014 Agreement for all employees, except for directors who were not included in the scope of the 2019 Agreement pursuant to an agreement reached between the Applicant, the Media, Entertainment and Arts Alliance (MEAA) and the Australian Directors Guild (ADG).

[5] Further, Ms Noble stated that it is not contrary to the public interest to terminate the 2014 Agreement as “the 2019 Agreement is now in force and has replaced the 2014 Agreement for all crew except directors.” Accordingly, Ms Noble states that there will be no actual change to the status quo and no loss of or removal of protections and entitlements to the crew.

[6] As to the effect of the termination of the Agreement, Ms Noble submitted the following:

•  the termination of the 2014 Agreement will enable the Applicant to move directors onto a separate arrangement; and

•  it will not affect the remainder or the crew as these individuals are now covered by the 2019 Agreement.

[7] The matter was listed for Mention on 6 March 2020. During the Mention, I requested that the Applicant provide further information detailing how directors will be engaged following the termination of the 2014 Agreement.

[8] The following information was provided:

“An memorandum of understanding (MOU) has been reached between Fremantle Media Australia Pty Ltd (Fremantle) and the Australian Director’s Guild (ADG). This MOU sets out the key terms and minimum entitlements for directors for each ‘block’ they direct for the program.

For reference, Neighbours uses a block system for directors where a director works for 5 weeks and 2 days and directs 6 episodes. Directors perform varying numbers of blocks over each calendar year.

In terms of contracting structure, the MOU specifies that agreements to engage directors for each block will be:

•  fixed term common law agreements subject to a guarantee of annual earnings under the Fair Work Act 2009 (Cth); and

•  subject to minimum weekly rates of pay which are set out in the MOU as a tiered system corresponding to skill and experience (which for the avoidance of doubt are all greater (on an equivalent annual salary basis) than the applicable high-income threshold).

In addition, the MOU sets a number of key terms that will be included in each agreement concluded individually with directors. This includes:

•  mechanisms for how additional work falling outside the scope of work required for a block is to be compensated;

•  provisions for ensuring that directors will continue to benefit from a minimum 10 hour break between work days (unless agreed otherwise and after consultation between Fremantle, the directors and the ADG); and

•  provisions reflecting certain terms of the 2014 EA (which are also contained in the FremantleMedia Australia Pty Ltd (‘Neighbours’) Enterprise Agreement 2019) including enhanced personal leave, alternative public holiday scheduling, and dispute resolution.

The term of this MOU would continue until the earlier of the recommissioning of Neighbours by the commissioning broadcasters, or 30 May 2022. At this time, the MOU allows for the parties to renegotiate the terms of the MOU.”

[9] The MEAA is covered by the 2014 Agreement. During the Mention, the MEAA confirmed that it did not oppose the application. Although not covered by the 2014 Agreement, the ADG advised the Commission on 16 March 2020:

“That the MOU entitled “Memorandum of understanding between Fremantle and the ADG engaging directors on Neighbours” has been set out separately for directors which means that the new Fremantle EBA excluding directors is correct and the 2014 EBA is okay to terminate.”  

The law to be applied

[10] Section 225 of the Act provides:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;”

(c) an employee organisation covered by the agreement.

[11] Section 226 of the Act provides:

“226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

[12] The application to terminate the 2014 Agreement was made by the employer, Fremantle Media, who is covered by the 2014 Agreement, consistent with s. 225(a) of the Act.

[13] In considering whether it is appropriate to terminate the 2014 Agreement, I have considered the views of the MEAA, an employee organisation covered by the 2014 Agreement. The MEAA has advised my Chambers that it does not oppose the termination of the 2014 Agreement. The ADG has also advised that they consent to the termination of the 2014 Agreement. Although not covered by the 2014 Agreement, the ADG represents the interests of the remaining employees covered by the 2014 Agreement and are party to the memorandum of understanding detailed above.

[14] Taking into account the memorandum of understanding outlined above, notably that directors will receive rates of pay in excess of the high income threshold, which is above the highest applicable rate under the 2014 Agreement, I am satisfied that the termination will not have an adverse effect on employees pursuant to s. 226 (b)(ii) of the Act.

[15] Based on the material contained in the employer’s statutory declaration filed with the application, I am satisfied that in accordance with s.226(a) of the Act, it is not contrary to the public interest to terminate the 2014 Agreement.

[16] Pursuant to s.225 of the Act, I have considered, and am satisfied as to each of the matters contained in s.226 of the Act.

[17] I am also satisfied, in accordance with s. 226 (b) of the Act that it is appropriate to terminate the 2014 Agreement having regard to all of the circumstances of the matter as set out above. I am therefore required by s. 226 of the Act to terminate the 2014 Agreement.

[18] The termination will come into effect from the date of this decision.

COMMISSIONER

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