Media, Entertainment and Arts Alliance v John Fairfax Group Pty Ltd

[1993] FCA 124

Re: MEDIA, ENTERTAINMENT AND ARTS ALLIANCE
And: JOHN FAIRFAX GROUP PTY LTD
No. N I12 of 1992
FED No. 124
Number of pages - 13
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Wilcox J.(1)

CATCHWORDS

Industrial Law - Interpretation of award - Journalists award providing that Grade 9 journalists exempted from certain provisions of award - Exemptions include provisions relating to hours of employment, overtime, rosters and time book - No express exemption in relation to shift penalties - Whether Grade 9 journalists are entitled to shift penalties.

Journalists (Metropolitan Daily Newspaper) Award 1991, cll. 4(s), 7(g), 20.

HEARING

SYDNEY, 26 February 1993

#DATE 12:3:1993

Counsel for the Applicant: K. Nomchong

Solicitors for the Applicant: K. Nomchong

Counsel for the Respondent: R. Goot

Solicitors for the Respondent: Malleson Stephen Jaques

ORDER

THE COURT ORDERS THAT:

1. The Application be dismissed.

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

JUDGE1

WILCOX J. The matter before the Court is an application for interpretation of the Journalists (Metropolitan Daily Newspapers) Award 1991. The applicant is Media Entertainment and Arts Alliance, an organisation of employees registered under the Industrial Relations Act 1988. The respondent, John Fairfax Group Pty Limited, is the publisher of two metropolitan daily newspapers, "The Sydney Morning Herald" and "The Australian Financial Review". The company employs numerous journalists and is a respondent to the subject award.

1. The dispute which has given rise to the present application is a narrow one. The question is whether Grade 9 journalists are entitled by the award to receive shift penalties. The relevant facts are undisputed. They are mostly set out in a filed Statement of Agreed Facts and Documents, but this document has been supplemented by some affidavit evidence.

2. The Statement of Agreed Facts and Documents details predecessor awards, going back to 1967. At that time journalists were graded by reference to the letters "A" to "D" inclusive, although there was a higher status grade known as "Special A". In 1967, on the application of employers, the 1967 award was amended so as to provide that certain clauses of the award "shall not apply to a member whose minimum rate of payment is 15 per cent in excess of the rate prescribed for Special A grade in clause 7". The excluded clauses included those dealing with calculation of time worked, hours of employment, rosters, overtime and the duty to sign the employer's time book. But there was a proviso that "the member shall be given two clear days off duty or two clear nights off duty in each week in accordance with sub-clauses (d) and (h) of clause 23".

3. In 1974 a new award was made. It retained the earlier gradings of journalists. Clause 8 of the new award provided for shift penalties, in these terms:
   "(d)(i) A member who is rostered to perform and performs ordinary
   

duty on a shift, any part of which falls between the times of 6.00 a.m. and 7.00 a.m. or is rostered 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 per cent of his salary for that shift.

(ii) A member who is rostered 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 15 per cent of his salary for that shift.

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

(iv) The respective additional payments prescribed in this sub-clause shall not exceed the amount based on the rate for a B grade member."

1. I gather that in 1974 it was accepted on both sides that, as cl. 8 (d)(i) and (ii) referred to "rostered" members, and employees receiving more than 15% in excess of the Special A grade rate were not rostered, those employees were not entitled to shift penalties under these paragraphs.

2. In 1977 the award was amended so as to provide an additional payment, by way of weekend penalty, for an employee "who is rostered to perform and performs ordinary duty" on a weekend shift. It seems, once again, that this provision was regarded as inapplicable to employees receiving a salary more than 15% above the Special A grade rate.

3. In 1982 there was a new award. It is not in evidence but I gather it retained the presently relevant provisions in their 1977 form, save that the shift penalty provisions were contained in cl.8(b), not cl.8(d) as before.

4. In 1984 the award was amended so as to delete the word "rostered" from cl. 8(b)(i) and (ii) and to substitute the words "required by the employer". No equivalent amendment was made in the sub-clause dealing with weekend penalties.

5. The 1982 award was further amended in 1986. The number of grades was increased. The top grade was still Special A grade, but it was now followed by A1 grade, A2 grade, A grade and then down to D grade. Employees whose minimum weekly payment was 15% or more above the Special A grade minimum were exempted from some provisions of the award, including those dealing with hours of employment, rosters, overtime and the time book; but, once again, with a proviso guaranteeing two clear days, or two clear nights, off duty each week.

6. In 1987 sub-paras. (i) and (ii) of cl. 8(b) were again amended, this time to substitute the word "instructed" for "required". The explanation given by Deputy President Keogh in his reasons for decision was "that a practice has arisen, at least in some areas, under which the employee determines the requirement". He wished to make clear that the shift penalty was payable only where management determined that the employee should work within a specified period. The previous exemptions were continued.

7. On 21 August 1991 Deputy President Marsh made two awards. The first, the Journalists (Metropolitan Daily Newspapers) Award 1990, amended the 1986 award. The second was a new consolidated award known as the Journalists (Metropolitan Daily Newspapers) Award 1991. As might be expected, their provisions were similar. It is necessary only to direct attention to the 1991 award, the instrument whose proper construction is in issue in this case.

8. A feature of the 1991 award is that it provides a new grading system of journalists. There are now nine grades, the highest being Grade 9. Clause 4 of the award deals with exemptions. It commences (sub-clauses (a) to (p)) with a list of senior positions, in respect of each of the respondent employers, whose holders are wholly exempt from the award. Sub-clauses (q) and (r) are ancillary to these provisions. The award then contains cl. 4(s), the sub-clause critical to this case:
   

"(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 subclause 22(f) shall apply to a member who is not given clear days off."

1. Clause 7 of the 1991 award deals with minimum rates of payment. It includes sub-cl. (g) dealing with shift penalties. I will set it out in full.
   

"(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 shift, 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 of ordinary hours of work and not when overtime is worked."

1. It will be recalled that the proviso in cl. 4(s) refers to members being "given at least two clear days off duty in each week in accordance with the provisions of sub-cl. (b) and (d) of clause 20.1." In the argument put to me something was made of this reference. So I will set out those sub-clauses, with the introductory sub-cl. (a):
   

"(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:

(i) 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:

(c) ...

(d) The ordinary weekly hours of duty specified in subclause (b) of this clause shall be worked so that each member shall be given two days off duty each week, except:

(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."

1. Reference should also be made to cl. 20.2 "Rosters of ordinary hours of employment". That provision reads:
   

"(a) The starting and finishing times of the ordinary 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 shifts 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."

1. The heading given to cl. 20 is "Hours of Employment and Rosters of Ordinary Hours of Employment".

2. The argument put by Ms Nomchong, the solicitor for the applicant, is a simple one. She says that cl. 4(s) was inserted into the award for the purpose of specifying exhaustively the clauses of the award from which Grade 9 journalists are exempt. The clause makes no reference to cl. 7(g), under which shift penalties are payable. It follows, according to the argument, that Grade 9 journalists are not exempted from cl. 7(g); the sub-clause applies to them and confers benefits in accordance with its terms. Ms Nomchong points out that cl. 4(s) follows the same form as its predecessors. She suggests that this form must have been considered by members of the Industrial Relations Commission or its predecessor, the Conciliation and Arbitration Commission, and by representatives of the parties (including legal representatives) on numerous occasions. Yet nobody saw fit to insert into cl.4(s) or any of its predecessors a reference to cl. 7(g) or its equivalent. She says that this omission could not have been an oversight; it must be inferred that there was never an intention to exclude shift penalties.

3. There is obvious force in this argument, as Mr Goot, counsel for the respondent, readily concedes. But he says that any attempt to apply cl. 7(g) to Grade 9 employees causes insuperable difficulties. In that situation, he says, it must be assumed that the author of the award did not intend that cl. 7(g) would apply to Grade 9 employees.

4. In developing his argument, Mr Goot analyses cl. 7(g). He points out that both the sub-clauses conferring an entitlement to a penalty payment (sub.cll. (i) and (ii)) relate only to "(a) member who is instructed by the employer to perform and performs ordinary duty on a shift". Underlying the entitlement to payment, therefore, are the concepts of "ordinary duty" and "shift". The term "ordinary duty" must be understood as a reference to the employee's ordinary hours of work - a proposition supported by sub-clause (iv)'s insistence that the penalties prescribed by cl. 7(g) "are payable only in respect of ordinary hours of work and not when overtime is worked". However, Mr Goot argues, the concepts of "ordinary hours of work" and "overtime" have no relevance to Grade 9 journalists. Clause 4(s) makes inapplicable to Grade 9 journalists the award provisions specifying ordinary hours of work and overtime entitlements. Moreover, he says, a shift is a predetermined period of work for which an employee is rostered. The concept has no application to employees who are not rostered.

5. Ms Nomchong responds to this argument by disputing the proposition that cl. 7(g) depends upon a roster system. There is affidavit evidence from two Grade 9 journalists that, although they are not rostered, their duties necessarily require them to work after 6pm - indeed after 8.30pm - on each evening upon which their newspaper goes to press. Ms Nomchong argues that the appointment of a journalist to a position requiring him or her, as a matter of practical reality, to work after 6pm constitutes an instruction to that employee to work after that hour; even though nothing is ever said about working hours. She also says that "shift" is an ordinary English word, meaning simply a period of work. Accordingly, if an employee is obliged, in the necessary course of employment, to work after 6pm or before 7am, cl. 7(g) applies to that member. It does not matter whether or not the employee is subjected to a formal roster or specified working hours. Turning to Mr Goot's reliance on cl. 7(g)(iv), she says there is no difficulty in accommodating that point; the proviso to cl. 4(s) excludes from the exemption the provisions of cl. 20.1(b) and (d), therefore making these provisions applicable. She points out that these sub-clauses specify the ordinary hours of work; accordingly, even Grade 9 journalists have "ordinary hours of work".

6. Ms Nomchong has put the argument for the applicant in its most attractive form. But I have concluded that it cannot be accepted. It is true, as she says, that it would have been easy to add cl. 7(g) to the catalogue of exemptions listed in cl. 4(s). It is legitimate to place considerable weight on the fact that this was not done; especially having regard to the attention that this provision has received over the years. It follows, I agree, that the problem must be approached by saying that Grade 9 journalists have not been expressly exempted from cl. 7(g) and that this sub-clause applies to them if, having regard to its terms, that is possible.

7. It is at the next stage of the argument that the applicant's problems emerge. I do not think it is correct to treat the proviso in cl. 4(s) as making applicable to Grade 9 journalists everything stipulated by cl. 20.1(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 journalists the method of calculating those days (on a weekly, fortnightly or four weekly basis) specified in cl. 20.1(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.

8. 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. It appears that the practice of the present respondent, at least, is to make individual contracts with Grade 9 journalists. Like other top professionals, Grade 9 journalists are no doubt expected to work as occasion demands. I gather that the working hours are often long and personally inconvenient. No doubt Grade 9 journalists are people capable of working, and able to be trusted to work, without direct 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 employer to the payment of overtime and shift penalties.

9. It is true, as Ms Nomchong says, 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) provides 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.

10. The relief sought by the Application was for the making of a declaration in the following form:
    

"(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."

1. It follows from what I have said that I think the applicant is not entitled to that relief. The respondent does not submit that I should make a declaration to the opposite effect, that cl. 7(g) has no application to Grade 9 journalists. That is, of course, my view. But I see no advantage in making a formal declaration to that effect. I will merely order that the Application be dismissed.