News Corp Australia

[2019] FWCA 8030

[2019] FWCA 8030

FAIR WORK COMMISSION

DECISION

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

News Corp Australia
(AG2019/1462)

NEWS CORP AUSTRALIA NEWSPAPERS - MEAA ENTERPRISE AGREEMENT 2016
NEWS LTD METROPOLITAN DAILY NEWSPAPERS – MEAA ENTERPRISE AGREEMENT 2010
NEWS LIMITED METROPOLITAN DAILY NEWSPAPERS – MEAA ENTERPRISE AGREEMENT 2005

Publishing industry
DEPUTY PRESIDENT BULL	SYDNEY, 16 DECEMBER 2019

Application for termination of the News Corp Australia Newspapers - MEAA Enterprise Agreement 2016, News Ltd Metropolitan Daily Newspapers - MEAA Agreement 2010 & News Limited Metropolitan Daily Newspapers - MEAA Enterprise Agreement 2005.

[1] An application has been made pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the following enterprise agreements:

•  News Limited Metropolitan Daily Newspapers – MEAA Enterprise Agreement 2005 (2005 Metropolitan Agreement) (2005 Agreement) 1

•  News Ltd Metropolitan Daily Newspapers – MEAA Enterprise Agreement 2010 (2010 Metropolitan Agreement) (2010 Agreement) 2

•  News Corp Australia Newspapers – MEAA Enterprise Agreement 2016 (2016 Agreement) (2016 Agreement) 3

(the Agreements)

[2] The application to terminate the Agreements has been made by the following employers covered by the various Agreements:

•  Advertiser Newspapers Pty Limited T/A News Corp Australia

•  Davies Brothers Pty Limited T/A News Corp Australia

•  Gold Coast Publications Pty Limited T/A News Corp Australia

•  Leader Associated Newspapers Pty Limited T/A News Corp Australia

•  Messenger Press Pty Ltd T/A News Corp Australia

•  Nationwide News Pty Ltd T/A News Corp Australia

•  Queensland Newspapers Pty Ltd T/A News Corp Australia

•  The Cairns Post Pty Limited T/A News Corp Australia

•  The Geelong Advertiser Pty Ltd T/A News Corp Australia

•  The Herald and Weekly Times Pty Limited T/A News Corp Australia

•  The North Queensland Newspaper Company Pty Limited T/A News Corp Australia

(the Applicants)

[3] It is noted that that there are a number of named employers covered by the Agreements who are not included in the list of Applicants above. 4

[4] Section 225 of the Act states as follows:

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

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

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

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.”

[5] Pursuant to s.225(a) above, the Applicants being employers covered by the Agreements have standing to make the termination application for each of the Agreements. The Agreements have each passed their nominal expiry date:

•  2005 Agreement expiry: 30 June 2007

•  2010 Agreement expiry: 30 June 2013

•  2016 Agreement expiry: 30 June 2018

[6] Section 226 of the Act relevantly states as follows:

“226 When the FWC must terminate an enterprise agreement

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

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

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

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

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

[7] The Applicants have provided in support of their application a statutory declaration from Mr Andrew Biocca, Head of Employee Relations. Mr Biocca has declared that termination of the Agreements is not contrary to the public interest for the following reasons:

1. News Corp Australia has historically negotiated enterprise agreements for its editorial employees with the Media, Entertainment & Arts Alliance (MEAA). Amongst other things, the Agreements have historically exempted particular senior editorial employees from their coverage (Exempt Staff) such as editors. This, in turn, was based on a long-standing historical practice which was part of industrial awards covering journalists.

2 The most recent enterprise agreement is the News Corp Australia Newspapers - MEAA Enterprise Agreement 2018, which was recently approved by the Fair Work Commission. The 2018 Agreement is a replacement agreement for the 2016 Agreement, which expired on 30 June 2018. The coverage of the 2018 Agreement is slightly different to the 2016 Agreement insofar as Exempt Staff are concerned.

3. The coverage provision of the 2016 Agreement was relevantly the same as the News Limited Newspapers - MEAA Transitional Enterprise Agreement 2013 (2013 Agreement)with minor changes. The 2016 Agreement was a replacement agreement for the 2013 Agreement. The 2013 Agreement was a replacement agreement for, among other agreements, the 2010 Agreement.

4. The 2010 Agreement was a replacement agreement for the News Ltd Metropolitan Daily Newspaper- MEAA Enterprise Agreement 2007 (2007 Agreement).The 2007 Agreement was a replacement agreement for the 2005 Agreement.

5. The coverage of the 2013 Agreement is slightly different to the 2010 Agreement, and the coverage of the 2007 Agreement is slightly different to the coverage of the 2005 Agreement, insofar as Exempt Staff are concerned.

6. The publishing industry has undergone significant change over the past several years and the roles have changed. The enterprise agreements have not altogether kept pace with the changes.

7. Accordingly, bargaining between News Corp Australia and the MEAA resulted in the following changes in the coverage of the 2018 Agreement:

(a) including employee positions in the 2018 Agreement that had previously been excluded under the 2016 Agreement;

(b) excluding employee positions from the 2018 Agreement that were previously included in the 2013 Agreement and the 2016 Agreement;

(c) including new employee positions that did not exist when the 2013 Agreement was negotiated; and

(d) removing employee positions from the 2018 Agreement which existed when the 2013 Agreement was negotiated but no longer exist.

8. During the bargaining process for the 2018 Agreement, News Corp Australia and the MEAA exchanged positions on a number of occasions before agreeing on the proposed employee positions to be included and excluded.

9. At clause 3.3 of the 2018 Agreement:

“This Agreement rescinds and replaces the agreements (sic) titled the News Corp Australia Newspapers - MEAA Enterprise Agreement 2016.”

10. Notwithstanding this, the 2016 Agreement could have a small residual operation in respect of employees who are Exempt Staff under the 2018 Agreement but are not, strictly speaking, in one of the named positions under the 2016 Agreement.

11. In summary:

(a) the 2016 Agreement passed its nominal expiry date;

(b) the 2018 Agreement is now in operation;

(c) the 2018 Agreement was intended to rescind the 2016 Agreement but, due to the operation of the Act, it may have a small residual operation; and

(d) The MEAA consents to the application.

12. Accordingly it is appropriate to terminate the 2016 Agreement and is not against the public interest to do so. The same principle applies to the 2005 and 2010 Agreements.

[8] It is noted that this application does not seek to terminate the 2007 or 2013 Agreements. It is also noted that s.58 of the Act provides that only one enterprise agreement can apply to an employee at a particular time with the later agreement in time applying when the earlier agreement has passed its nominal expiry date.

[9] On 7 May 2019, the Commission sent email correspondence to the Applicants’ representative Minter Ellison seeking the views of employees covered by the Agreements, as well as requesting evidence of consent from the MEAA to the application (being an employee organisation covered by the Agreement), pursuant to s.226(b)(i) of the Act. The MEAA was copied into this correspondence.

[10] No response to this request was received and further correspondence was sent Minter Ellison on 24 May 2019, to which the MEAA was again copied.

[11] On 24 June 2019, the Applicant’s representative advised the Commission that further to consultation with MEAA, the Applicants had written to employees covered by the Agreements, to invite them to express their views on the application and had given them until 9 July 2019 to respond. The Applicants advised that they would contact the Commission shortly after 9 July 2019, once they had an opportunity to consider any responses.

[12] As no further contact with the Commission was made in July or August the Commission again wrote to the Applicants’ representative on 18 September 2019 requesting advice as to whether they wished to proceed with their application by close of business on Monday 23 September 2019. The Commission confirmed that in the event no correspondence was received, the application may be dismissed pursuant to s.587 of the Act. The MEAA was copied into the correspondence.

[13] On 20 September 2019, the Applicants’ representative confirmed that it pressed the application and provided a ballot result declaration that showed a majority of 98% of employees voted ‘yes’ to approve the 2018 Agreement, which expressly provides at clause 3.3 that the 2018 Agreement would rescind and replace the 2016 Agreement.

[14] The Applicants provided a copy of an email a Mr Andrew Biocca Head of Employee Relations of News Corp Australia had sent to 37 employees who were covered by the 2016 Agreement, but not the 2018 Agreement, inviting them to provide views of the proposed termination of the 2005, 2010 and 2016 Agreements. The Applicants advised the Commission that no responses were received from these employees.

[15] The Applicants’ representative also provided a copy of an email chain between Mr Biocca with the MEAA in which the MEAA confirmed on 20 September 2019 that it does not object to the termination of the Agreements.

Conclusion

[16] It appears from what has been put on behalf of the Applicants that the reason for the applications is to remove any potential residual operation of the 2016 Agreement. The Applicants have advised the Commission of the overwhelming ballot result approving the 2018 Agreement. Although Mr Biocca’s statutory declaration states the Exempt Staff under the 2018 Agreement are not “strictly speaking” in the classifications under the 2016 Agreement, 37 ‘exempt employees’ were written to and advised of the applications to which no response was received.

[17] I am satisfied that the views of the employees covered by the Agreements and MEAA, being the employee organisation covered by the Agreements, have been sought in accordance with s.226(b)(i) of the Act.

[18] I am otherwise satisfied, based on the reasons put forward by the Applicants, that it is not contrary to the public interest to terminate the Agreements. The Applicant and the MEAA have already negotiated the News Corp Australia Newspapers - MEAA Enterprise Agreement 2018which has been approved by the Commission. 5

[19] Taking into consideration that employees potentially covered by the 2016 Agreement 6 have expressed no concern with its termination, the views of the MEAA as an employee association covered by the Agreement and the views of the applicant employers, I am satisfied that the requirements of s.226 of the Act have been met including that termination of the Agreements is not contrary to the public interest.

[20] Pursuant to s.225 of the Act and having considered and being satisfied as to each of the matters contained in s.226 of the Act, the Agreements are terminated.

[21] Section 227 of the Act provides that if an enterprise agreement is terminated under s.226 of the Act, the termination operates from the day specified in the decision to terminate the agreement. Accordingly, the Agreements are terminated with effect from the date of this decision.

[22] It remains to be said that the 2005 Agreement is a Transitional Agreement pursuant to Schedule 3 Part 2 Item 2(1) of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). A s.225 application to terminate a transitional instrument is made pursuant to Item 16 of Schedule 3 of the Transitional Act which provides as follows:

Collective agreement-based transitional instruments: termination by FWA

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[23] The appropriate form to complete is Form F28 - Application for termination of collective agreement-based transitional instrument. Pursuant to Rule 6 of the Fair Work Commission Rules the requirement to file such a form is waived.

DEPUTY PRESIDENT

 1   PR963253.

 2   [2010] FWAA 9410.

 3   [2017] FWCA 931.

 4   For example, the Applicants consist of 11 employers whereas the 2016 Agreement lists 15 employer parties.

 5   [2019] FWCA 2224.

 6   There being no evidence that the 2010 and 2005 Agreement apply to any employees.

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