Media Entertainment and Arts Alliance v John Fairfax Group P/L

[1993] FCA 489

; JDGMEMT No. ...k ........ ... ........ ... 1'993

GENERAL DISTRIBUTION NOT REQUIRED

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) No. NI 8 of 1993
)
INDUSTRIAL DIVISION	)
B E T W E E N :
MEDIA ENTERTAINMENT AND ARTS ALLIANCE

Appellant

A N D:

JOHN FAIRFAX GROUP

PTY LTD

Respondent

Coram: Keely, Ryan and Hill JJ.

Place: Sydney

Date: 23 July 1993

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. Appeal dismissed.

2. No order as to costs.

Note:	Settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules.

GENERAL DISTRIBUTION NOT REQUIRED

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) NO. NI 8 of 1993
)
INDUSTRIAL DIVISION	)
B E T W E E N :
MEDIA ENTERTAINMENT AND ARTS ALLIANCE

Appellant

A N D:

JOHN FAIRFAX GROUP

PTY LTD

Respondent

Coram: Keely, Ryan and Hill JJ.

Place: Sydney

Date: 23 July 1993

REASONS FOR JUDGMENT

THE COURT:

This is an appeal by Media Entertainment and Arts
Alliance ("the appellant" ) , an organisation of employees

registered under the Industrial Relations Act 1988 (Cth) ("the

Act" ) , from the judgment of a single Judge of this Court (Wilcox J. ) , given on 12 March 1993. His Honour dismissed an application by the appellant for an interpretation of the Journalists (Metropolitan Daily Newspapers) Award 1991 ("the award"). John Fairfax Group Pty Ltd ("the respondent") is the publisher of two metropolitan daily newspapers, "The Sydney Morning Herald" and "The Australian Financial Review"; it employs numerous journalists and is bound by the award. The Court was informed that the application was not served upon

the other persons bound by it. Those other persons were not "given an opportunity of being heard by the Court" and, by reason of s.51(2) of the Act, his Honour's decision is not binding on those other persons.

The interpretation sought from his Honour and in this appeal is in the following terms:-

" (a) That the only clauses of the

Journalists (Metropolitan Daily
Newspapers) Award 1991 that do not
apply (sic) members classified in
Grade 9 are those set out in
subclause 4(s) of the Journalists
(Metropolitan Daily Newspapers) Award

1991.

(b) That members classified in Grade 9 are entitled to be paid shift penalties in accordance with the provisions of subclause 7 (g) of the Journalists (Metropolitan Daily Newspapers) Award 1991."

At the beginning of the hearing of the appeal the
appellant applied, by motion supported by four affidavits, for

the Court to receive evidence additional to that before his

he sought to place before the Court was evidence which had	Honour. Its counsel accepted that the further evidence which
been available to the appellant at the time of the hearing before his Honour and the Court rejected the application.
Counsel also accepted that the questions of fact the subject of the proposed further evidence would be disputed by the respondent. As to that matter it should be noted that in The Amalgamated Engineering Union v. The Metal Trades Employers Association (1944) 52 CAR 23 at 24 O'Mara J. said:

" On the hearing of the application for

interpretation it soon became clear that the Court was being asked to determine disputed issues of fact, to interpret the award in the light of such a determination and to give a decision as to the effect of the Metal Trades award upon the rights or obligations of the Company and its employees. An application for

interpretation of an award is not a proceeding

in which the Court should take it upon itself to determine disputed questions of fact upon a Court which is called upon to enforce the award. "

That decision was cited in Re Clerks (Shipping) Award (1954)

78 CAR 201 at 202 by Morgan J, who expressed the same opinion.

The appellant's counsel contended (written submission, par. 2): "that journalists who are classified as grade 'J9' and who are instructed to work particular hours (or whose employment requires them to work those hours), are entitled to

. . . the payment of shift penalties for work performed at
certain hours . . ." . The respondent's counsel contended that

penalties, does not apply to those journalists.	sub-clause 7(g) of the award, which provides for shift
Sub-clauses 7(g), 4(s), 20.l(a), (b) and (d), and 20.2 of the award read as follows:

" 7(g) Shift penalties:

(i)       A member who is instructed by the

employer to perform and performs ordinary duty on a shift, any part of which falls between the hours of 6.00

a.m. and 7.00 a.m., or is instructed to perform and performs ordinary duty on a shift that concludes between the hours of 6.00 p.m. and 8.30 p.m., shall be paid an additional 10% of his or her salary for that shift.

(ii)     A member who is instructed by the

employer to perform and performs ordinary duty on a shift, any part of which falls between the hours of 8.30 p.m. and 6.00 a.m., shall be paid an additional 17.5% of his or her salary for that shift.

(iii)   The additional rates provided in paragraphs (i) and (ii) of this subclause are not cumulative and; where any shift attracts both penalties, the higher percentage only shall be paid.

(iv)     A member who is rostered to perform and performs ordinary duty on a shlft, where the greater part of the shift falls between the hours of midnight Friday and midnight Sunday, shall be paid an additional 10% of his or her base salary for that shift.

(V)      The respective additional payments prescribed in this subclause shall not exceed the amount based on the rate for a Grade 5 member.

(vi)    The penalties prescribed in this subclause are payable only in respect

when overtime is worked. of ordinary hours of work and not

4(s) A member who is classified in Grade 9 shall be exempted from the provisions of clauses 20 - Hours of employment and rosters of ordinary hours of employment; 21 - Distant engagements; 22 - Overtime; 23 - Time book; and 24 - Duty book: provided always that each member shall be given at least two clear days off duty in each week in accordance with the provisions of subclauses (b) and (d) of clause 20.1 - Hours of employment and rosters of ordinary hours of employment. The provisions of clause 22(f) shall apply to a member who is not given clear days off.

20 - HOURS OF EMPLOYMENT AND ROSTERS OF

ORDINARY HOURS OF EMPLOYMENT

20.1 Hours of employment

(a) In this clause, unless the contrary appears,

the word "day" means a period of 24 hours.

(b) Subject to subclause (c), the ordinary hours of duty shall be an average of 38 per week to be worked on one of the following bases:

(1) by members working 38 ordinary hours on five days per week; or

(ii)by members working the following ordinary hours over 19 days in a 20 day work cycle:

40 ordinary hours in each of three weeks and 32 ordinary hours in one week in the 20 day work cycle; or

(iii)by members working the following ordinary hours over nine days in a ten day work cycle:

42 ordinary hours in one week and 34

ordinary hours in one week in the ten day
work cycle; or

(iv)by members working 38 hours on four days in each five day work cycle:

(d) The ordinary weekly hours of duty specified in subclause (b) of this clause shall be worked

duty each week, except:  so that each member shall be given two days off (i) in the fortnights in which Christmas Day and Good Friday occur, when five days off duty shall be given in the fortnight; and

(ii)when the 38 hour week is implemented, in respect of any member in the manner specified in paragraphs (b)(ii), (iii) or (iv) of this clause, when the number of days off duty which such member is given shall be increased as necessary to give effect to the paragraph applicable to such member.

20.2 Rosters of ordinary hours of employment

(a) The starting and finishing times of the ordlnary daily hours of work of a member will be rostered fourteen days in advance on a section by section basis unless the employer and a majority of members in that section agree that a roster is not feasible. Such agreement shall contain provisions for the means of determining overtime and shall be in writing.

(b) Ordinary hours of duty will be rostered in shlfts of not less than four and not more than eleven hours.

(c) Due to unforeseen circumstances, rostered ordinary hours of duty of a member may be changed by the employer up to the conclusion of the previous shift worked by the member or, where the member is off duty, not less than twelve hours before the next rostered shift of ordinary hours for the member is due to begin, or later in an emergency."

The appellant's counsel submitted that Grade 9 journalists are entltled to all the benefits of the award except those conferred by the clauses specifled in sub-clause 4(s) of the award, which clause does not expressly "exempt" Grade 9 ~ournalists from the shift penalties provided for by

submissions (par. 8) "that not all 'J9' journalists could	sub-clause 7(g). The appellant said in its written
expect to receive shift penalties because certain of their number for all practical purposes nominate their own working hours. These journalists work with a minimum of supervision, and exercise a hlgh degree of discretion as to the manner in which they perform their duties."
Paragraphs 9 and 10 of its submissions were as follows:-

"9. There is another class of ‘J9' journalists whose hours of work are integral to the daily newspaper production schedule. Their working hours are regular and predictable because of the requirements of that production schedule. These journalists are for example, employed as senior sub-editors, or senior editorial staff whose duties include the co-ordination and editing of copy to be included in the dally paper and ensuring that production deadlines are met:

10.  These journalists are not just expected, but their terms of employment oblige them to attend their place of employment at fixed times, for fixed perlods each working day. J9 journalists are not on the kind of 'roster' from which overtime may be calculated because they do not receive overtime. [clause 4(s)]. They are nevertheless required to work a given 'shift' or fixed period of work. The production cycle of a newspaper is fixed and predictable and therefore failure on the part of these J9 journalists to work as required by the production cycle would lead to its disruption."

It will be noted that the appellant's submission

states in paragraph 9 that their "working hours are regular

and predictable because of the requirements of that production	schedule" and in paragraph 10 that "their terms of employment
obliges them to attend their place of employment at fixed times for fixed periods each working day".
We are unable to uphold the submission that, as a matter of construction of sub-clause 7(g), those Grade 9 journalists are "instructed by the employer to perform and perform ordinary duty on a shift". Nor can we uphold the
submission that the fact (assuming it to be the fact) that "their terms of employment oblige them to attend . . . for fixed periods each working day" means that they are "required to work a given shift" within the meaning of the word "shift" in the heading ("Shift penalties") to sub-clause 7(g).
We accept the submission advanced by the respondent's counsel that, on the proper construction of the award, sub- clause 7(g), read in context, does not impose upon the employer a duty to pay shift penalties to its employees who are Grade 9 journalists.
Under sub-clause 7(g) the right to be paid a shift penalty is limited to a member who is instructed by the employer to perform and performs ordlnary duty on a shift. Clause 23 of the award - headed "Time Book" - requires members to "each day record in the time book the hours of employment". Such a provision would be relevant to a claim by an employee to be entltled to the payment of shift penalties - but Grade 9
clause "23 - Time book". Sub-clause 7(g)(vi) expressly journalists are expressly "exempted" from the provisions of
provides that shlft penalties are not payable "when overtime is worked" - but, again, Grade 9 journalists are expressly exempted, by sub-clause 4(s), from clause 22 - overtime (other than the special provision in sub-clause 22(f)).
We agree with the following passage in the reasons for judgment given by Wilcox J. for dismissing the application for interpretation.

" I do not think it is correct to treat the

provision in cl. 4(s) as making applicable to Grade 9 journalists everything stipulated by cl. 20.l(b) and (d). Clause 4(s) lists cl. 20 as an exempt clause. The proviso does not relate to the whole of cl. 20.1 but only the provisions of sub-clauses (b) and (d) concerning two clear days off duty in each week; the apparent intention being to apply to Grade 9 lournalists the method of calculating those days (on a weekly, fortnightly or four weekly basis) specified in cl. 20.l(b) and

(d) . Clause 20.1 is made applicable to Grade

9 journalists only in relation to that matter,

not in relation to ordinary hours of work.

A fundamental purpose of cl. 4(s) is to discard, for Grade 9 journalists, the familiar concepts of ordinary hours of work, overtime, rosters and shifts. Grade 9 journalists are

people at the top of their profession. . . .

Like other top professionals, Grade 9 journalists are no doubt expected to work as occasion demands. . . . No doubt Grade 9 journalists are people capable of working, and able to be trusted to work, without dlrect supervision. It seems apparent that the rationale of cl. 4(s) is that it would be

inconsistent with the matters I have mentioned

for Grade 9 journalists to be subjected to the dictates of rosters and the time book, and the

penalties.

employer to the payment of overtlme and shift

It is true . . . that "shift" is an ordinary English word. It is not defined in the award and in some contexts may be read as referring only to a period of work. But it would be erroneous to read the word in that way in this award. Clause 20.2(b) provldes for the rostering of ordinary hours of duty "in shifts of not less than four and not more than eleven hours". I think this is the type of "shift" referred to in cl. 7 (g). As it is incontestable that cl. 20.2 has no application to Grade 9 journalists, it follows that a Grade 9 journalist cannot be a member to whom cl. 7(g) applies; and so cannot take any benefit under that clause."

The appellant's counsel submitted "that the award ought to be read as it stands, without reference to the history of clauses in earlier awards", which he said "cast as much doubt as light on any of these questions". In his reply he dealt with submissions by the respondent's counsel relating to that history but submitted "that the historical material is of limited helpfulness". Having examined the history we have found it of no assistance in determining this appeal.

The appeal will be dismissed.

I certify that this and the

preceding nine (9) pages are a true copy of the reasons for judgment herein of the Court.

associate:	T C ( q h ~ ~ ; h
Dated: 23 July 1993

Counsel for the appellant:	Mr Nolan
Solicitor for the appellant:	MS K. Nomchong
Counsel for the respondent:	Mr Goot
Solicitor for the respondent:	Malleson Stephen Jacques
Date of hearing:	28 May 1993
Date of judgment:	23 July 1993