Mr Stuart Rowe v 4b Media T/A 4b Media Pty Ltd - [2024] FWC 1614

[2024] FWC 1614

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739 - Application to deal with a dispute

Mr Stuart Rowe
v

4b Media T/A 4b Media Pty Ltd

(C2023/6435)

DEPUTY PRESIDENT GRAYSON

SYDNEY, 20 JUNE 2024

Alleged dispute about any matters arising under the modern award and the NES; [s146]

Mr Stuart Rowe (the Applicant) has made an application to the Commission to deal with a dispute arising under the Broadcasting, Recorded Entertainment and Cinemas Award 2020 (the Award/the 2020 Award) and its predecessor, the Broadcasting, Recorded Entertainment and Cinemas Award 2010 (the 2010 Award),[1] pursuant to s.739 of the Fair Work Act 2009 (the Act). The Applicant is employed by 4B Media (the Respondent) as a Production Videotape Operator B. The Respondent is a media production company which creates videos for corporate clients and provides production services to two major clients, being the New Creation Church and Joseph Prince Ministries. The Applicant has been employed by the Respondent since 1 April 2019 to perform editing work. There is no dispute between the parties that the Applicant is covered by the Award.

The Applicant has brought the dispute to the Commission because attempts to resolve the matter with the Respondent have not been successful. The dispute resolution procedure in the Award at clause 26 allows parties to refer such matters to the Commission for mediation and conciliation, and if the parties consent, arbitration. The Applicant and the Respondent consent to the arbitration of the dispute. The relevant procedures required by clause 26 have been followed such that the matters are properly before the Commission for arbitration and determination.

The Applicant contends that he is entitled to receive both the Videotape Post-Production Allowance and the Videotape Editing Allowance, pursuant to clauses 34.2(g) and 34.2(h) of the Award, from the date on which he commenced work for the Respondent, being 1 April 2019. The Applicant essentially contends that he is entitled to both allowances given the duties that he fulfils, the equipment that he uses and the skills, judgement and techniques required to perform those duties (which have not changed for the duration of his employment). The Respondent contends that the Applicant was not entitled at any stage to either allowance for reasons including that the equipment used by the Applicant is not sufficiently complex, the functions performed by the Applicant do not meet the requirements of the Award and as the Applicant largely operates within guidelines set by the Respondent on broadcast ready assets, requiring minimal judgement in selecting edit points. It also contends, in regard to the Videotape Editing allowance, that it does not accept that the Applicant exercises equivalent videotape editing techniques and skills to the work of the compilation of program material requiring the use of an external edit controller controlling 3 or more videotape machines and that acceptance by the employer is the ultimate and only determinant of the entitlement to this allowance.

The Commission conducted conferences with the parties on 7 November 2023, 20 November 2023 and 27 November 2023. This did not resolve the dispute.

On 20 December 2023, the parties agreed that to questions for determination by the Commission concerning whether the Applicant was entitled to be paid the allowance/s and, if so, from which date he was entitled to be paid the allowance/s.

On 21 December 2023, I issued Directions for the filing and service of evidence and submissions by the parties and set the matter down for hearing on 28 February 2024.

Following the hearing, the Applicant was directed to file written closing submissions by 3 April 2024 and the Respondent to file written closing submissions by 24 April 2024. A further hearing was held on 30 April 2024 at the request of the parties so that closing submissions could also be made orally.

On 18 June 2024, I wrote to the parties to seek their views as to the consideration of the versions of the Award in the determination of the dispute. On 19 June 2024, the parties consented to the amendment of the questions to be determined in the following terms:
1. The parties agree that the questions to be determined by the Commission in the consent arbitration of this matter are as follows:
a.Is the applicant entitled to receive the Videotape Post Production allowance (34.2g) in his role at 4B Media and, if so, from what date?
b.Is the applicant entitled to receive the Videotape Editing Allowance (34.2h) in his role at 4B Media and, if so, from what date?
2. The parties agree that, in determining the questions at 1a. and 1b. above, the Deputy President may consider any operative version of the Broadcasting, Recorded Entertainment and Cinemas Award covering the Applicant’s employment as between the date of its commencement on 1 April 2019, and the date of her decision.

The clauses providing for both the Videotape post-production allowance and the Videotape editing allowance are expressed in the same effective terms in both relevant versions of the Modern Award. The only difference between clauses is that the Videotape post-production allowance contains a reference to ‘in clause 32.17(a) above;’ in the 2010 Award at its second dot point, and refers to ‘the paragraph immediately above’ at its second dot point in the 2020 Award. Having considered both clauses, I find that the effect of the relevant clauses remained the same throughout the iterations of the Award during the Applicant’s employment. Accordingly, all references to ‘the Award’ in this decision are to be taken as referring to both versions of the Award. Where clause numbers are included, those numbers are referring to the current version of the Award, and equivalent provisions have been footnoted.

Evidence

The Applicant relied upon the following evidence in support of his case:
A.Statement of Mr Stuart Rowe dated 10 January 2024;
B.Stuart Rowe - Employment Contract dated 20 March 2019;
C.Stuart Rowe - Employment Contract dated 22 June 2020;
D.Applicant’s statement in reply dated 21 February 2024;
E.Recording of demonstration of Stuart Rowe’s duties dated 28 February 2024;[2]

F.Notes from Transcript;
G.Further evidence that BRMAs are not Broadcast Ready;
H.Examples of Broadcast Media Assets;
I.Additional files; and,
J.TBD Worksheet.

The Respondent filed the following evidence in support of its case:
A.Statement of Roger Beard dated 30 January 2024;
B.Statement of Craig Gower dated 5 February 2024; and
C.Statement of Margaret Anne Holmes dated 5 February 2024.

By way of closing submissions, the Respondent indicated that they relied solely on their closing submissions dated and filed 26 April 2024 which displaced the Respondent’s prior submissions.

The relevant terms of the Award

The following provisions of the Award are directly relevant for present purposes.

The Broadcasting, recorded entertainment and cinema industry is defined at Clause 4.2 as follows:[3]
Broadcasting, recorded entertainment and cinema industry means the production (including pre-production and post-production), broadcasting, distribution, showing, making available, and/or sale of audio and audio/visual content including but not limited to feature films, television programs (including series, serials, telemovies and mini-series), news, current affairs, sport, documentaries, video clips, digital video discs, television commercials, training films and the like whether for television exhibition, theatrical exhibition, sale to the public, digital media release or release in any other medium.

Clause 34.2 (g) is as follows:[4]
34.2(g) Videotape post-production allowance
(i)A Technician Audio, Lighting, Master Control or Videotape employee who is capable of and who performs videotape post-production work, which requires:
· the use of complex computer editing equipment which controls vision switching functions and which in addition, may control special effects generators, audio switching equipment and other vision sources; and
· the exercise of judgment in the selection of edit points,
will be paid an allowance of 10% of the rate of pay prescribed by this award for the classification in which the employee is classified under the award.
(ii)This allowance is, where applicable, part of the employee’s rate of pay and is paid for all purposes of the award.

Clause 34.2 (h) is as follows:[5]
34.2(h) Videotape editing allowance
(i)A Technician, Audio, Lighting, Master Control or Videotape employee who is capable of and who:
·     performs the work of the compilation of program material which requires the use of an external edit controller controlling 3 or more videotape machines; and/or
·     who exercises videotape editing techniques and skills accepted by the employer as equivalent to those required in the paragraph immediately above; or
·     performs the work of editing of videotape material for news bulletins,
must be paid an allowance of 4% of the rate of pay prescribed by this award for the classification in which the employee is classified under the award.
(ii)The allowance does not apply where the work only involves dubbing, recording, program compilation or simple editing such as butt editing.
(iii)This allowance is part of the employee’s rate of pay and is paid for all purposes of the award.
The allowances are paid for all purposes in accordance with clause 34.2(a)[6] of the Award. These provisions are contained within Part- 7- Television Broadcasting of the Award[7] which is expressed as applying to those employees performing work in the classifications contained in Schedule A —Television Broadcasting.[8]

Clause 13. 1 of the Award[9] stipulates that all employees must be classified according to the structures set out in Schedule A —Television Broadcasting to Schedule G —Motion Picture Production[10] and paid the minimum rates set out in clause 13 for their classification and that employers must advise their employees in writing of their classification and of any change to their classification.[11]

It was not in dispute that the Applicant was classified as a Videotape employee and fell within the definition found at Schedule A.1.1 (c)[12] as follows:
Videotape
The duties of a Videotape employee cover editing and operation of videotape equipment and refers to equipment other than videotape machines, which are used to record, edit and replay video and audio signals.

The classifications for Videotape employees are found at Schedule A.1.8 (a)-(h)[13] of the Award. As of 4 July 2023, the Applicant was classified as a Senior Production Videotape Operator/Post-Production Editor B.[14] The Applicant contends that his correct classification is Senior Production Videotape Operator/Post-Production Editor B.

The Respondent led evidence that although the Respondent had communicated a change to the Applicant’s classification from Production Videotape Operator B to Senior Production Videotape Operator/Post-Production Editor B on 4 July 2023, it only did so as a response to his request for a pay increase in September 2022 rather than in recognition of any change to his duties. The Respondent contends that notwithstanding its communication to the Applicant as to his classification and the Respondent paying the Applicant the rate appropriate to that classification, it does not consider that the Applicant is a Senior Production Videotape Operator/Post Production Editor B. The Respondent considers that the Applicant is a Production Videotape Operator B, per Schedule A.1.8(f)[15] of the Award.

I acknowledge the contest between the parties as to the Applicant’s correct classification under the Award. However, I note that the two classifications proposed by the parties are within the videotape employee stream under the Award, and that the two allowances under clauses 34.2(g) and 34.2(h) are payable to Videotape employees. In these circumstances, I do not consider that determining the Applicant’s correct classification under the Award is central to the dispute that the Commission has been asked to determine nor have the parties agreed that I would resolve this issue as part of this consent arbitration.

Observations on the Evidence

There is no significant factual dispute related to this matter. The parties largely agree on the duties that the Applicant performs. The real difference between the parties is whether the duties, and the skills and equipment required to perform those duties, fall within the scope of Clauses 34.2(g) and 34.2(h) of the Award.

To the extent that any of the statements or other ‘evidence’ referenced the subjective views of the witness about the correct interpretation of the Award, this is properly a matter for the Commission to determine and I have treated any of that material as a submission.

The Respondent relied on evidence from Mr Beard and Ms Holmes which indicated that due to the broadcast media industry’s adoption of non-linear editing practices utilising digital platforms as opposed to physical videotape machines and edit controllers, the two allowances were now defunct.

The approach to be applied to determining the proper application of an Award

In City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 (Wanneroo), French J, as he then was, observed:
The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘...the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘....ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).[16]
…
It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities — City of Wanneroo v Holmes (1989) 30 IR 362 at 378–379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned — see eg Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499 at 503–4 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):[17]
Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.
Further observations of these principles were more recently stated in James Cook University v Ridd [2020] FCAFC 123 per the judgement of Griffiths and SC Derrington JJ:[18]
(i)The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).
(ii)A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind” (Kucks v CSR Limited [1996] 66 IR 182, 184; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 [16]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]). The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose” (Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 [2]).
(iii)Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]). It may extend to “… the entire document of which it is a part, or to other documents with which there is an association” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; 82 FCR 175, 178).
(iv)Context may include “… ideas that gave rise to an expression in a document from which it has been taken” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).
(v)Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form…” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).
(vi)A generous construction is preferred over a strictly literal approach (Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499, 503-4; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [57]), but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties” (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 380).
(vii)Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378-9; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).

Per Madgwick J’s judgement in Kucks v CSR Limited (1996) 66 IR 182 at [184], the task of interpreting an industrial instrument:
… remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well‐understood words are in general to be accorded their ordinary or usual meaning.

The factual context

The employer and the workplace

The Respondent is a small business employing 15 staff, including nine editors including the Applicant, a Production Manager and a Post-Production Manager, Mr Craig Gower. It usually employs trainees or those who have not worked professionally in the field who are supervised by more senior employees.

The Respondent’s operations centre around two main processes – creating videos for corporate clients to use in, among other things, marketing, training and brand awareness and providing production services to two clients, New Creation Church and Joseph Prince Ministries. For the duration of the Applicant’s employment, the Respondent has largely performed large volume, methodical, templated and repetitive editing on what are described by the Respondent as ‘Broadcast Ready Media Assets’(BRMAs). Once these assets have been worked on they are delivered to media outlets and stations worldwide for broadcast or other use.

The Applicant’s role at 4B Media

The Applicant has been using Adobe Premiere Pro in the performance of his duties since May 2019. Those duties have remained similar during his employment with the Respondent.

The Applicant performs editing functions for the Respondent. These were demonstrated live to the Commission and tendered into evidence as an exhibit.

The Applicant commenced employment with the Respondent as an editor on 1 April 2019 pursuant to a written contract of employment. He is currently working in program production reporting to Mr Adam McLeod, Senior Production Manager. The Applicant is responsible, along with seven other editor colleagues, for the work performed for New Creation Church and Joseph Prince Ministries.

Prior to his employment with the Respondent, the Applicant had been employed as an Assistant Presentation Coordinator for Nine Network and performed work on livestream NRL footage for Gravity Media (formerly known as Chief Entertainment).

On or around 1 July 2020 the Applicant entered into a new contract as a full-time Production Videotape Operator B, classified as a Grade 6 employee under the Award. That contract describes his duties as follows:
(a)Editing multiple part media and checking and approving of raw videos, audio and high definition video content for television broadcast (long form editing);
(b)Providing editing and content feedback;
(c)Compiling media assets into industry standard television programs using editing software;
(d)Inputting text overlays and video assets;
(e)Checking and adjusting vision and audio to align with industry broadcast standards;
(f)Liaising and communicating with Production Manager via scheduling and approvals; and,
(g)Track time of editing and administration.

Ms Holmes’ evidence was that the list of duties in the Applicant’s contract aligns with the Applicant’s actual duties with the exceptions of:
·The reference to ‘raw videos’, Ms Holmes’ evidence was that the Applicant did not work on raw videos because she considered that ‘raw video’ would be footage that had not been edited or treated before the Applicant commenced work on it, and,
·By the reference to ‘media assets’ being taken to mean BRMAs - Ms Holmes’ evidence was that the Applicant only worked on footage that is ready to be broadcast without further treatment needing to be applied to it.

The Applicant’s evidence opposed these contentions by the Respondent. The Applicant emphasised that his contract specifically referred to his duties incorporating ‘the editing of multiple part media and checking and approving of raw videos…’. The Applicant also led evidence setting out the editing functions required to be performed by him on footage in order to get it ready for broadcast, including matters relating to the footage’s broadcast compliance, as well as that the majority of his work was the creation of the introductory segments referred to as the ‘Today with’, ‘Next on’ and ‘Previously on’ segments.

On or around 4 July 2023 the Respondent reclassified the Applicant as a Senior Production Videotape Editor/Post Production Editor B which is classified as a Grade 9 under the Award.

Consideration

It was not in dispute that the Applicant was a Videotape employee as defined under the Award or that the use of computer editing equipment, being software, as opposed to videotape machines, could, in certain circumstances, give rise to an entitlement to the two claimed allowances.

The Respondent submitted, on a general basis, that the application of Clause 34.2(g) is likely limited due to technological advancements since the pre-reform version of the Award, the Television Industry Award. The Respondent submitted that Clause 34.2(g) was intended to cover circumstances where an editor was required to undertake linear editing on physical tapes which required interaction with multiple pieces of equipment, and did not align with the Respondent’s digital operations and the Applicant’s duties. Accordingly, the Respondent made submissions that the two Award clauses are defunct or have limited current application in the industry, given its significant technological advancement involving the introduction of digital and non-linear editing tools. I consider that these Award clauses continue to have application within the industry covered by the Award, despite the Respondent’s contentions as to the inconsistency of the circumstances of their original application when compared with the contemporary video editing industrial landscape. The two clauses were inserted as part of the creation of the Modern Award and have been effective since 1 January 2010. These clauses have not since been removed and remain in force today despite numerous subsequent reviews by the Commission and were ultimately reincorporated into the 2020 version of this Award. As is made clear by the definition of the duties of Videotape employees at Schedule A.1.1(c), the clauses are not limited only to the usage of actual video machines and the usage of complex computer editing equipment is expressly contemplated.

Clause 34.2(g) - Videotape Post-Production Allowance

Complex computer editing equipment

One of the central issues between the parties was whether the software used by the Applicant whilst performing work for the Respondent could be characterised as ‘complex computer editing equipment’. The Macquarie Dictionary[19] defines ‘complex’ as 1. composed of interconnected parts; compound; composite; 2. characterised by an involved combination of parts; 3. complicated; intricate. The term ‘complicated’ is further defined as 1. composed of interconnected parts; not simple; complex; 2. consisting of many parts not easily separable; difficult to analyse, understand, explain.

The Applicant indicated that the usage of Adobe Premiere Pro satisfies this phrase in the Videotape post-production allowance clause of the Award. The Applicant submitted that his usage of Adobe Premiere Pro to edit a large number of video and audio sources simultaneously, as well as applying delimiters to clip audio and video values to ensure the footage is broadcast compliant, is sufficient to establish that the program is complex for the purposes of the Award. Further, Adobe Premiere Pro offers a number of functions, such as XML file compatibility and the ability to support multi-project file editing, which the Applicant says establish that Adobe Premiere Pro is complex software and the only one of the three products offered by Adobe appropriate for the editing of video for broadcast.

Mr Gower gave evidence that the pre-production team are provided with source media assets such as video, audio track, logos, promotions resources and banners to be used in compiling the final product. These are loaded into Adobe Premiere Pro to be worked on by editors such as Mr Rowe according to a template and worksheet, making sure that correct assets are placed in the program at the right time and in the right place to meet broadcast compliance. Mr Gower gave limited evidence on Adobe Premiere Pro but did state that it was not ‘complex computer editing equipment’ in circumstances where its use at the Respondent was for simple editing.

The Respondent submitted that the Applicant’s usage of the industry standard software Adobe Premiere Pro was not sufficient to establish the ‘complex computer editing equipment’ phrase of the Award clause. Further, the Respondent submitted that factual, rather than hypothetical, complexity is required in order to satisfy the ‘complex computer editing equipment’ aspect of the Award clause, and that the limited manner in which Adobe Premiere Pro functionality is used by the Applicant falls short of the level of complexity contemplated by the Award clause. The Respondent submitted that the Applicant’s duties required limited application of the broader number of Adobe Premiere Pro’s functions, because the footage that the Applicant edits is almost completely ready to be broadcast by the time he works on it. Ms Holmes gave evidence that Adobe Premiere Pro was simple to use and has user friendly capabilities, however, given her experience and qualifications as summarised in her statement, and given she does not appear to have any experience in editing and conceded that she had not used the software I give this evidence little weight. I accept the evidence of the Respondent that Adobe Premiere Pro is used by students, Youtubers and home editors with around 9 million users worldwide. However, that the software can be used by many, does not mean that it is not complex.

I accept the evidence of the Applicant that Adobe Premiere Pro is complex and is the only one of the three products offered by Adobe which is appropriate for the editing of video for broadcast. I also accept the evidence of the Respondent that there are at least three other software platforms that are suitable for editing programs for broadcast. The Applicant demonstrated that Adobe Premiere Pro had many interconnected parts, with complex settings and effects that can be manipulated. Adobe Premiere Pro allows the editor to edit a large number of video and audio sources simultaneously. Further, Adobe Premiere Pro offers a number of functions, such as XML file compatibility (a tool currently being trialled at the Respondent for viability) and the ability to support multi-project file editing. Mr Rowe demonstrated that, by way of example, he used the program to cut reels, insert different footage from other reels, treat the audio to make it compliant for broadcast, insert and remove captions, insert ‘monthly offer’ banners and ‘promo ads’, and insert correct copyright information. Additionally, Mr Rowe demonstrated that he used Adobe Premiere Pro to incorporate special effects such as freeze frames to fix shots where a camera might be moving, or flipping a shot on its vertical axis so as to ensure the framing of a shot and its interaction with another asset, such as a program lower third, does not result in an audience member’s face being obscured. In particular, Mr Rowe emphasised the ability of Adobe Premiere Pro to make complex changes to programs to ensure their broadcast compliance. Mr Rowe demonstrated that audio and video values may exceed the minimum and maximum values proscribed by a broadcaster or client, and that by using Adobe Premiere Pro, delimiters can be applied to clip audio and video values to ensure the footage is broadcast compliant. This allowed various assets to be prepared to meet the various guidelines and requirements of different countries, networks and clients.

I also accept the evidence of the Applicant that the editing work utilising Adobe Premiere Pro is complex, having had regard to the Editor’s Guide, which Mr Rowe described as being developed in tandem with his fellow editors in 2023 in order to guide the performance of editing work at the Respondent’s business. This document sets out how Adobe Premiere Pro’s functions are to be used in order to complete edits that arise on a program-by-program basis. It is not an instruction manual that dictates how to use Adobe Premiere Pro – it appears to be drafted on the assumption that an editor already knows how to use Adobe Premiere Pro to edit footage, and focuses on the Respondent’s specific practices as to how the tool is to be employed. The guide establishes that technical functions of Adobe Premiere Pro are to be employed by editors (as per an exercise of their judgement) including, among other things, to ensure a program is edited in a natural-feeling and polished fashion, without jarring cuts or sudden transitions.

For the purposes of the complexity of the computer editing equipment used by the Applicant, the Applicant gave evidence about work performed in his prior roles with Channel Nine and Gravity Media. The Applicant’s evidence indicates that broadcasters require the audio and luminance frequencies of footage to be compliant with the technical requirements set by the broadcaster in order for the footage to be ‘broadcast ready’. When working in his prior roles for Channel 9 and Gravity Media, the Applicant’s evidence was that he worked with footage that already met the technical requirements for broadcast (specifically by reference to audio and luminance frequencies that did not require any treatment by the Applicant before they were fit to be broadcast). The Applicant gave evidence that, by contrast, Adobe Premiere Pro is used within 4B Media to change complex aspects of footage, including its luminance and audio values. The Applicant submitted evidence demonstrating that the broadcaster to whom the Respondent supplies programs, Aberdeen, requires its broadcasts to comply with luminance and audio values between 0 and 100 IRE, which can be identified by the application of a colour correction/video limiter (and corresponding ‘clip level’) being applied within Adobe Premiere Pro. The Applicant’s evidence was that a number of the assets that he works with do not meet the requirements for broadcast before he incorporates them into the program and the colour correction/video limiter is applied. In this context, the Applicant contended that the footage on which he works is not ‘ready for broadcast’, as claimed by the Respondent, and that the treatment of the footage in this way went to the complexity of the computer editing equipment he uses, being Adobe Premiere Pro.

Having reviewed the Editor’s Guide, I consider that its content and language demonstrates that Adobe Premiere Pro is complex computer editing equipment that is deployed in a complex way. Whilst the Applicant may not use all of the functions of Adobe Premiere Pro this is not surprising given the breadth of the functions offered by the program.[20] However, it is apparent from the evidence that he uses many, varied, interconnected and complicated functions of the computer editing equipment in order to meet the standards set by the Respondent and its clients. I find that those functions and the software are complex.

Vision switching functions

Whilst the Respondent originally made submissions that vision switching was a function of production or live broadcast environments, not post-production or editing processes, it ultimately did not develop such an argument at final hearing. In any event, I observe that this allowance is titled a ‘Post-production allowance’ and is clearly expressed to apply where an employee ‘performs videotape post-production work’. According to the Macquarie Dictionary, post-production is defined as ‘the period following the main filming, during which processes such as editing, mixing, scoring, etc., are carried out.’ It is also apparent from the Award that an entirely separate classification of employee will be engaged as a Vision Switcher employee to perform the switching of ‘video signals and operating associated video effects equipment during a recording, rehearsal or live transmission of a program, under the direction of a director or co-ordinator.’

The Applicant submitted that his selection of portions of video from the overall reels he is provided to edit (which contain more than one video channel of footage shot of the same sermon) which are then inserted at relevant edit points throughout the program constitutes ‘vision switching’. The Applicant filed evidence and demonstrated to the Commission that he draws on a number of sources of footage in the editing of programs. These include a reel with isolated footage of the speaker who is delivering the sermon (or the ISO Reel), a sermon program reel which includes vision of both the speaker and the audience, and a number of shorter assets such as songs, standardised promotional advertisements, ‘bars and tone’ screens, slates showing program information, and disclaimer and copyright frames. Each source may include both audio and video channels, or just audio or video channels.

The Applicant’s evidence was that he performs edits by cutting to or from sources in the file to ‘switch’ to other sources of vision within the same program for the purposes of blending cuts or edit points to more appropriate frames to ensure the final program feels natural and consistent to a viewer, and to ensure the program complies with its prescribed duration. The Applicant’s evidence was that these edits included locating and switching in footage of a crowd shot, replacing vision of one audience member to another, splicing in a better image to start or end a portion of the program on, or removing or extending a frame to ensure that a speaker’s face is not hidden by a bible verse. In the last example the Applicant’s evidence was that the speaker’s face having been obscured in the sermon reel was resolved by switching the vision to the speaker by removing a small portion of the reel and switching in corresponding footage from the ISO reel. It was submitted that this selection of portions of video to be included in the program, including the insertion of ISO reel vision or sermon reel vision at relevant edit points throughout the program constitutes ‘vision switching’. The Applicant also gave evidence that he ‘switches’ the reels between an ‘English’ version of the reel to a ‘Clean’ version of the reel, where the latter version has English text onscreen removed. The Applicant’s position was that these edits constituted ‘vision switching’ for the purposes of the Award clause.

At hearing the Respondent submitted that, in addition to the computer editing equipment used by the Applicant being complex, it requires deployment in a complex manner, specifically by reference to its capacity to control vision switching. The Respondent also submitted that Adobe Premiere Pro’s ‘Multicam’ function was the appropriate equivalent of the reference to ‘vision switching’, and that as the Applicant did not employ the Multicam function in the completion of his duties, the Applicant’s duties did not involve vision switching for the purposes of the Award. The Applicant accepted that he did not routinely use the Multicam function of Adobe Premiere Pro but submitted that the editing techniques that he adopts fulfil the same function.

The Applicant submitted that, in relation to video editing, working with vision from multiple cameras is ‘vision switching’, and that within Adobe Premiere Pro, a functionality that can be used for this purpose is called Multicam. The Applicant submitted that the Multicam functionality was optional - he could use it in his editing to switch vision and change to multiple camera angles, but the Applicant’s editing technique without using the Multicam functionality does the same thing. The Applicant submitted that using Multicam had the effect of changing the appearance of the interface that he uses to edit the footage but, regardless of whether Multicam is used, the Applicant’s switching vision in and out using other functionalities in Adobe Premiere Pro with the effect of changing the vision to alternate camera angles produces the same product or end result.

Mr Gower gave evidence for the Respondent as follows:
Vision switching is a process whereby a number of media sources, whether they be video or audio, are made available to one remote desktop system, which the user would be able to then employ their knowledge in being able to change from one image to another to one audio channel to another. It is a practice which has been widely used in the arena of broadcast television for many decades and is something that in all, you know, areas and purposes is not really something that follows on from what broadcast television stations do. So to clarify that, vision switching is the area of working with assets in a linear function, that is, as it goes to air, for example.[21]

I consider that the Applicant does engage in vision-switching during the post-production process when he engages in the processes described in the preceding paragraphs. While I accept that the Multicam function of Adobe Premiere Pro is one way of controlling vision switching functions I do not consider that the clause should be read down so as to only apply where the Multicam functionality of Adobe Premiere Pro is used. The ordinary meaning of the words, read as a whole and in context, would not support such an interpretation. In any event, as was held in Wanneroo, ‘A generous construction is preferred over a strictly literal approach’.[22] In my view, the Applicant demonstrated that he achieves the same result as can be achieved by employing Multicam, by using Adobe Premiere Pro to manually ‘stack’ audio and video channels from the recording of the sermon in to a program file. In doing so, the Applicant’s edits, incorporates and ‘switches’ vision from a number of media sources, changing from one image to another as part of the editing process.

Special effects generators and Audio switching equipment and other vision sources

The Applicant gave evidence that he used Premiere Pro’s ‘special effects generators’ in his duties to do things like fade-out sections of text, flip the orientation of sections of footage to address poorly framed shots or the obscuring of an audience members face and by applying hold frames (or freezing the image) so as to avoid an otherwise-jarring fast cut. The Applicant also referred to applying the ‘program bug’ which is a section of text which remains on screen for the duration of the program, and ‘program lower thirds’ which include references to texts described and the titles of the sermons. Both assets require fading out and removal when the other is introduced, which the Applicant submits establishes the usage of special effect generators.

The Respondent did not file any evidence or make any submissions disputing that Adobe Premiere Pro controlled special effects generators or that the Applicant used these functions as part of his duties.

The Applicant gave evidence that he makes adjustments in post-production to ensure a speaker is audible over music, and that he ‘switches’ the reels between an ‘English’ version of the reel to a ‘Clean’ version of the reel. The Applicant’s evidence was that the English version is subject to alternative audio treatment (and, per [50] above, the ‘Clean’ version has all English onscreen text removed). The Applicant submitted that, in switching the reels in this manner, the Applicant’s duties involve the use of ‘audio switching equipment as well as other vision sources’.

While the Respondent initially submitted, as it had in relation to vision switching, that audio switching for the purposes of the Award was a function of production or live broadcast environments, as opposed to post-production or editing processes, the Respondent did not advance this submission at hearing. To the extent necessary, I repeat my observations at [49] above. Having ultimately withdrawn this submission, the Respondent did not file any evidence or make any submissions disputing that Adobe Premiere Pro controlled audio switching equipment or that the Applicant used this function as part of his duties.

I find that Adobe Premiere Pro controls special effects generators, audio switching equipment and other vision sources and that the Applicant has used these functions as part of his duties. However, I note that the usage of the word ‘may’ in this clause of the Award has the effect that the allowance does not require the use of audio switching equipment, special effects generators or other sources of vision, nor does it prescribe the degree of frequency with which these additional functions may be used.

Exercise of judgement in the selection of edit points

For the reasons set out above, I have formed the view that the Applicant is a Videotape employee who is capable of and who performs videotape post-production work which requires the use of complex computer editing equipment which controls vision switching functions and, in addition, may control special effects generators, audio switching equipment and other vision sources. It is then necessary to consider whether the second precondition to the allowance is met, namely, whether that work requires the exercise of judgement in edit points by the Applicant.

Much has been made by the Respondent of the assets that the Applicant works on being BRMAs rather than raw or original material. Mr Gower gave evidence that a BRMA is created at the pre-production stage by inserting video, audio track, and other assets such as logos, promotions resources and banners into Adobe Premiere Pro. This is then provided to editors such as the Applicant to build a program using a template and worksheet outline, which includes a timeline for an editor to know where to place the assets. This is used as a checklist for an editor to ‘build’ or ‘construct’ the program. The Respondent ‘s evidence was that 4B Media interacts with BRMAs as opposed to raw or original data from clients, and that these BRMAs are in either a finalised or a near-final form, having already been subject to colour and audio adjustments before the Applicant handles them. The extent of the Applicant’s tasks to do with these BRMAs are wholly guided by the worksheet and do not require any significant independent assessment by him.

The Applicant’s evidence was that some, but not all, of the assets on which the Applicant works are ‘broadcast ready’ in a technical sense. The work required to be done on assets that are not technically broadcast compliant has been largely dealt with in this decision at [47] above, with respect to broadcast-compliant luminance and audio value limits and their identification and treatment within Adobe Premiere Pro. As I have set out at [37] above, the Applicant’s evidence was that, regardless of the technical broadcast compliance of the material, the action of simply placing assets in the order prescribed by the worksheet does not accurately represent the work that he does, both generally in relation to the placement of edit points and their effect on the program’s viewing experience. Specifically, the Applicant’s evidence was that the creation of the introductory segments referred to as the ‘Today with’, ‘Next on’ and ‘Previously on’ segments of the program represents the majority of his work with 4B Media. The Applicant’s evidence was that this work involved watching sermon program footage in its entirety before cutting the footage into shorter form content segments, editing the duration of longer narratives into shorter stories as necessary, and subsequently disguising or diminishing the impact of the cuts into the footage by switching camera angles or vision sources (such as from a sermon speaker to a crowd shot). The Applicant’s evidence was that the application of these edits is to be done with the overarching prescribed duration of the program in mind (which differs from program to program) and whilst ensuring, to the best of the editor’s ability, that the content is interesting and ends on a positive note. Accordingly, the Applicant contended that he does not solely work on BRMAs as suggested by the Respondent.[23]

Ultimately, I do not consider that much turns on whether the assets are BRMAs - the question for consideration is whether the work of the Applicant requires the exercise of judgement in the selection of edit points. The clause does not require the exercise of ‘complex judgment’ or ‘initiative and judgement’ or ‘discretion and judgement’ or ‘minimal judgement’ or ‘independent judgement’ which are some of the phrases used within the Award. The Macquarie Dictionary defines ‘judgement’ as ‘the forming of an opinion, estimate, notion, or conclusion, as from circumstances presented to the mind.’

The Applicant gave evidence that his duties include splitting a reel into a number of consecutive programs and selecting appropriate sections of footage according to the themes and narrative structure of the program. As has been stated, the Applicant’s evidence was that he needs to exercise judgement by selecting the appropriate footage to insert into the ‘Today with’; ‘Previously On’ and ‘Next on’ segments. The Applicant gave evidence that his work also involves the exercise of judgement as informed by reviewing the program content to ensure the practical aspects of program timings and duration are balanced with the qualitative aspects of a viewer’s experience and applying edits to program footage to comply with timing requirements (i.e. shortening portions of the program that go on too long, selecting the most effective point in a program for it to commence or break, and editing out irrelevant or negative portions of sermon content from a program).

The Respondent submitted that the Applicant’s duties do not require the exercise of judgement in the selection of edit points because the footage and assets for editing are BRMAs, and the entirety of the Applicant’s work on the footage is guided by a worksheet provided to the Applicant which requires no significant independent assessment by him. The Respondent submitted that the most accurate description of the Applicant’s work is finalising or compiling ultimate assets, rather than selecting particular edit points.

I accept that the Applicant is required to work to a worksheet when performing his duties. That worksheet does prescribe the duration and, broadly speaking, the inclusion and placement of certain standard program assets, such as the program slate (which includes program information and is for internal pre-broadcast use), copyright disclaimers (which include the copyright information for the program itself as well as for any bible references taken from the New King James Bible), and the program logo clip. However, the Applicant filed evidence and demonstrated during his oral evidence that he has license to deviate from edits as prescribed in the worksheet,[24] including by swapping assets for time constraint reasons,[25] to ensure correct copyright information,[26] and as informed by the Applicant’s judgement as to the overall quality of the program.[27] The Applicant also filed evidence that, in creating ‘International Taiwan Edits’, the worksheet is provided with estimated ad break timings, but that it is the editor’s job to select the specific timings for the commencement and conclusion for ad breaks within the program and to notate them on the worksheet.[28]

As I have described at [63] above, the Applicant’s evidence indicates that his work does require the exercise of judgement in the selection of edit points. By way of example, if working on a sermon reel consisting of a four-part sermon series, the Applicant selects the edit points within that reel so as to divide the four-part series into twelve programs, with four programs to a series.[29] Having selected the relevant edit points for each of the programs, the Applicant then reviews the entirety of the footage per series, program, and of the reel overall, and selects the appropriate footage for inclusion in the introductory ‘Today with’, ‘Next on’ and ‘Previously on’ segments for each program and series. The total duration of each program is required to comply with the worksheet, and certain programs have specific time limits for commercials.[30] The Applicant is to balance these durations with a consideration of the overall feel and quality of the program for a viewer as well as to ensure the correct assets are included in the specific program according to the requirements of the client who will be broadcasting it.[31] In ensuring the program transitions appropriately and effectively, with these durations and program information aspects in mind, the Applicant’s edits may involve either extending footage that is too short, or clipping footage that includes silences or pauses, et cetera.

Certain edits made by the Applicant that deviate from the worksheet are to be notated by him on that worksheet, such as when the commercial time limit for a program is exceeded and a shorter asset has been swapped in by him to correct the issue. Other deviations from the worksheet that the Applicant has license to make that do not require notation on the worksheet include the duration of the introductory ‘Today With’ and ‘Next On’ segments, as well as the duration of the ‘monthly offer’ banners and promo ads, which the Applicant’s evidence indicates are either lengthened or shortened so as to transition within the program and as a result may exceed the 10-second duration prescribed by the worksheet.[32] Although the overall individual program duration to be created from the division of a sermon reel is mandated in general terms by the worksheet, and to a lesser extent the Editor’s Guide, I am satisfied that the Applicant exercises a large degree of discretion over the duration of the assets and introductory segments that make up a program, as well as the qualitative aspects of the content included in the program, within the confines of the individual program. This is demonstrated by the closing words of a worksheet tendered into evidence which states that:
Each program to consist of a minimum of 22 minutes of pure teaching preferably. If sermon content is not enough in the wild reels, priority of action to be taken as follows:
1.Overlap between episodes to increase sermon time and
2.Increase the cross over of sermon ‘Coming up On’; ‘Previously On’ and ‘Next on sections.
Further, the Applicant entered into evidence the Respondent’s ‘Editors Guide’, which the Applicant gave evidence that he created in collaboration with other editors employed at the Respondent’s business. This guide contains an overview of how editors working for the Respondent to employ the exercise of judgement in the selection of edit points but makes clear that the decisions made by the editor involve both objective and subjective considerations. The guide prescribes that an editor have regard to a number of matters, particularly when selecting content for the inclusion in ‘Today With’ and ‘Next On’ introductory program segments, which includes the informational quality and positivity of the tone of the content,[33] the degree to which it can be understood by a viewer, a consideration of the balance of all of the parts within the content, the minimisation of pauses, repetition, or stuttering, and the degree to which the program contains interesting religious content or objectionable themes. The guide indicates that should the content be too long or too short, frames of footage are to either be trimmed or padded out, that cuts should be covered, and mentions the addition of conclusory ‘amen’ words by the sermon speaker in order to create space where no natural space exists in the footage itself.[34]

The Applicant’s evidence established that he also edits footage to include different vision to the vision that was originally included in the footage provided to him. Where a starting frame is not ideal or appropriate, such as the footage commencing with a sermon speaker’s face not being shown on screen, the Applicant inserts a new image and removes the old image - to ensure that the frame is correct, in this case by showing the speaker’s face at the commencement of the program segment.[35] As set out at [50] above in this decision, examples of vision switching functions performed by the Applicant include inserting crowd shots to extend the duration of segments of the program where necessary or switching to an isolated camera shot to blend an otherwise-jarring cut in the existing footage. Further, as set out at [45] above in this decision, the Applicant edits or alters the appearance of assets like banners and program bugs if he forms a view that the edit is warranted (i.e. it obscures a crowd member’s or speaker’s face) and extends or shortens their duration to ensure the program’s duration includes all of the content relevant to its narrative.

I consider, having accepted the Applicant’s evidence regarding his duties, that he is required to form an ‘opinion’ or ‘conclusion’ as to the placement of edit points based on the characteristics of each program as he considers them in relation to what is required of the program. The Applicant’s evidence demonstrated that he did not just compile assets but rather scrutinised assets closely to ascertain why and how they should be edited and where they should be placed by reference to the balance of the program and having had regard to timing constraints, content quality and asset accuracy. His conclusions as to edit points were based on ‘circumstances presented to the mind’, following his consideration of the balancing of numerous factors including the duration of the programs as prescribed and the viewing experience for a particular viewer (such as the positivity and utility of the messages in the program he is editing).

Clause 34.2(g) - Videotape Editing Allowance

It is not in contest that the Applicant does not meet the criteria in dot points 1 or 3 of the Award clause for this allowance. The question is whether dot point 2 is met.

The Applicant submitted that his usage of Adobe Premiere Pro to edit multiple video and audio tracks simultaneously is the digital (or non-linear) equivalent of the usage of an external edit controller controlling 3 or more videotape machines and required equivalent techniques and skills. The Applicant submitted that digital editing with Adobe Premiere Pro was less constrained in respect of the number of sources that could be edited at one time than external edit controllers (with the Applicant using Adobe Premiere Pro to work on up to 8 video channels and 4 audio channels at one time, as compared to videotape machines being limited to one video channel and two audio channels per machine).

The Respondent does not accept that the Applicant exercises videotape editing techniques and skills equivalent to those required where an employee performs the work of the ‘compilation of program material which requires the use of an external edit controller controlling 3 or more videotape machines.’ It submits that this is the end of the Commission’s consideration of this matter as the insertion of the phrase ‘accepted by the employer’ indicates that the intention of this clause is for the Respondent to retain complete and absolute discretion.

This qualification can also be found at clause 25.4.1 (b) of the Television Industry Award, which was a pre-Award Modernisation predecessor award to the Award. I have been unable to identify any other clause in the Award that contains this condition. The Respondent submitted to the Commission that its analysis of all Modern Award clauses demonstrated that no similar provision existed in any other Award. Similarly, it has reviewed all relevant extrinsic historical sources available to it as part of these proceedings and had not found any information that would shine a light on the purpose or source of this qualification.

While the industrial merit of a Modern Award clause that provides for an employer to hold unfettered discretion to determine whether the preconditions for an allowance have been met are clearly debatable it is not the role of the Commission to consider the fairness of the term itself nor to rewrite it according to some notion of justice. The Commission’s role is to consider the ordinary meaning of the words, having regard to the purpose and context of the provision.

The Respondent does not accept that the Applicant exercises videotape editing techniques and skills equivalent to those required to perform the work of the ‘compilation of program material requiring the use of an external edit controller controlling 3 or more videotape machines’. Having had regard to the ordinary meaning[36] of the phrase ‘accepted by the employer’ and the purpose and context of the Award clause[37] I consider that the Applicant is not entitled to the Videotape editing allowance.

Commencement of any entitlement

Ms Holmes gave evidence that the Applicant’s duties have been similar through his employment with the Respondent and that the Respondent stopped using Final Cut Pro and adopted the use of Adobe Premiere Pro in May 2019, shortly after the Applicant started. Whilst Mr Gower gave evidence that the editing processes for the previous software (Final Cut Pro) and Adobe Premiere Pro are similar, no evidence was before me to allow an assessment of the functions of Final Cut Pro and whether it met the criteria in the Award clause. Accordingly, I am unable to make a finding as to whether Final Cut Pro was complex computer editing equipment and whether the Applicant was entitled to the Videotape Post-Production Allowance prior to the implementation of Adobe Premiere Pro. In any event, it would appear that this was a period of only several weeks after the Applicant commenced his employment in April 2019.
Given my findings regarding Mr Rowe’s entitlement to the Videotape Post Production allowance and the fact that his duties, using Adobe Premiere Pro, have been similar during his employment I find that he was entitled to receive this allowance (per clause 34.2g of the 2020 Award and clause 32.16 of the 2010 Award) from the date of his commencement of the use of Adobe Premiere Pro at the Respondent. However, the Respondent should give proper consideration to whether the Applicant was entitled to payment of the allowance from the commencement of the Applicant’s employment, given my findings above and based on its knowledge of Final Cut Pro.

Conclusion

The answer to the first question that has been submitted to the Commission for arbitration in settlement of the dispute is as follows: Yes. The Applicant is entitled to receive the Videotape Post Production allowance in his role at 4B Media from the date of his commencement of the use of Adobe Premiere Pro in his employment.
The answer to the second question that has been submitted to the Commission for arbitration in settlement of the dispute is as follows: No.

DEPUTY PRESIDENT

Appearances:

Mr S Rowe on his own behalf.
Mr H Pararajasingham of Counsel instructed by Ms K Barratt of HFW Australia for the Respondent.

Hearing details:

2024.
Sydney.
February 28.

Final written submissions:

Applicant, 3 April 2024.
Respondent, 26 April 2024.

[1] PR701683, PR701494.

[2] At the hearing on 28 February 2024, I requested that the Respondent provide the Applicant with a work device on which he could demonstrate his typical duties. This device was projected onto screens in the court room and the demonstration was recorded, with this recording becoming an exhibit in the proceedings.

[3] Broadcasting, Recorded Entertainment and Cinemas Award 2010 (PR701683, PR701494) (2010 Award) clause 3.1.

[4] 2010 Award clause 32.16.

[5] 2010 Award clause 32.17.

[6] 2010 Award clauses 32.16(b) and 32.17(c).

[7] 2010 Award Part 6 – Television Broadcasting.

[8] 2010 Award Schedule B—Television Broadcasting.

[9] 2010 Award clause 14.1.

[10] 2010 Award Schedule B—Television Broadcasting to Schedule H—Motion Picture Production.

[11] 2010 Award clause 14.

[12] 2010 Award Schedule B.1.1 (c).

[13] 2010 Award Schedule B.1.8 (a)-(h).

[14] 2010 Award Schedule B.1.8 (c), 2020 Award Schedule A.1.8 (c).

[15] 2010 Award Schedule B.1.8(f).

[16] City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 (Wanneroo) [53].

[17] Wanneroo [57].

[18] James Cook University v Ridd [2020] FCAFC 123 [65].

[19] Macmillan Publishers Australia, 2024.

[20] These are evidenced by the evidence of the Respondent and MH-5 of the Statement of Ms Holmes dated 5 February 2024.

[21] PN357.

[22] Wanneroo [57].

[23] Rowe 4 at 10.2.

[24] Exhibit Rowe 6: Applicant’s Notes from Transcript (Rowe 6), at “PN230”.

[25] Rowe 6 at “PN218”.

[26] Rowe 6 at “673 TBD – 1”.

[27] Exhibit Rowe 9: Additional Files (Rowe 9), at “Editor’s Guide 2023”, pages 15 – 16.

[28] Exhibit Rowe 7: “Further Evidence that BRMAs are not Broadcast Ready”, at “TBD Assets 3.”.

[29] Rowe 6 at “PN248”.

[30] Rowe 6 at “PN218”.

[31] Rowe 9 at “Editor’s Guide 2023”, pages 15 – 16.

[32] Rowe 6 at “673 TBD – 1”.

[33] PN130, PN146 – PN147, PN159.

[34] Rowe 9 at “Editor’s Guide 2023”, pages 15 – 16.

[35] Rowe 6 at “PN248”.

[36] Kucks v CSR Limited (1996) 66 IR 182 [184].

[37] Wanneroo [53].

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Citations

Mr Stuart Rowe v 4b Media T/A 4b Media Pty Ltd [2024] FWC 1614

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City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813

Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10