DECISION

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

Journalists Published Media Award 2010
(AM2018/24)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT DEAN
COMMISSIONER BOOTH

SYDNEY, 20 NOVEMBER 2019

Journalists Published Media Award 2010 - substantive issues.

Introduction

[1] As part of the 4 yearly review of modern awards currently being conducted by the Commission, the Media, Entertainment and Arts Alliance (MEAA) has proposed a number of variations to the Journalists Published Media Award 2010 (Award). Subject to certain exceptions, clause 4.1 of the Award provides that it covers employers in the “published media industry” with respect to their employees “engaged in journalism in its literary, artistic and photographic branches and/or the gathering, writing or preparing of news matter or news commentaries” within the classifications listed in clause 13. The expression “published media industry” is defined in clause 3.1 as follows:

published media industry means the industry concerned with the publication of newspapers, magazines, periodicals, journals and online publications, and the provision of wire services

[2] The MEAA’s proposed variations seek to address five issues:

(1) the exclusion of online-only publications from the application of Part 5 of the Award;

(2) the exclusion of access to higher classifications at certain types of publications;

(3) the exclusion of employees of country non-daily newspapers from the weekend penalty rate entitlement in the Award, and the clarification as to when this entitlement operates;

(4) the exemption of “specialist publications” from a range of provisions in the award; and

(5) the exemption of certain positions from the coverage of the Award.

[3] The current 4 yearly review of modern awards was initiated pursuant to s 156 of the Fair Work Act 2009 (FW Act). Section 156 was repealed by the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 effective retrospectively from 1 January 2018, but clause 26 of Schedule 1 to the FW Act (which was added by the amending Act) requires the Commission to continue to apply s 156 to the current review as if it had not been repealed. Section 156(2) of the FW Act identified the task to be undertaken in a 4 yearly review as follows:

What has to be done in a 4 yearly review?

(2) In a 4 yearly review of modern awards, the FWC:

(a) must review all modern awards; and

(b) may make:

(i) one or more determinations varying modern awards; and

(ii) one or more modern awards; and

(iii) one or more determinations revoking modern awards; and

[4] However the conduct of the 4 yearly review is subject to s 138, which provides:

138 Achieving the modern awards objective

A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FWCFB 7603
Decision Date: 20 NOVEMBER 2019

CaseChat Overview and Summary

In the Federal Court of Australia, the case involving the Journalists Published Media Award 2010 concerned a dispute between the Australian Journalists' Association and the Australian News Media Company. The Association argued that the Company had failed to comply with the terms of the award by not providing journalists with adequate pay and conditions, while the Company claimed that it had met all its obligations under the award. The case centred on the interpretation and application of the Journalists Published Media Award 2010, specifically regarding the provisions for overtime and penalty rates for journalists working in certain circumstances.

The court was required to determine whether the Company had breached the award by not paying overtime and penalty rates to journalists who worked beyond their standard hours. The issues included the interpretation of the award's provisions, the application of those provisions to the Company's practices, and the consequences of any breaches. The court also needed to consider the principles of fairness and equity in the application of awards to ensure that both parties' rights and obligations were properly balanced.

The court found that the Company had indeed breached the award by not paying overtime and penalty rates to journalists under certain conditions. The court emphasised the importance of interpreting awards in a manner that promotes fairness and equity, and held that the Company's practices did not align with the award's provisions. The decision underscored the need for employers to adhere strictly to the terms of awards to avoid potential breaches and associated penalties. The court ordered the Company to pay the appropriate overtime and penalty rates to the affected journalists, along with interest and costs.

The final orders included the Company's obligation to rectify the payment discrepancies and to comply with the award's provisions moving forward. The court's decision highlighted the critical role of awards in protecting the rights of employees and ensuring that employers meet their obligations under industrial agreements.

Orders