Northern Star Ltd v Printing & Kindred Industries Union

[1986] FCA 151

Re: NORTHERN STAR LIMITED
And: PRINTING AND KINDRED INDUSTRIES UNION
No. NSW 22 of 1985
Industrial Law
14 IR 261

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTY
INDUSTRIAL DIVISION
Wilcox J.

CATCHWORDS

Industrial Law - Interpretation of printing award - Division of functions between PKIU members and others - Issue as to function of taking initial instructions from customers - Whether words "as they affect liaison with the customer for the validating, checking and consequential correction function" qualify both operation of the equipment and the giving of typesetting instructions -- Significance of allocation to non PKIU members of the function of checking with customers "whether performed before or after entry of the advertisement into the system".

Conciliation and Arbitration Act 1904 s.110 The Country Printing Award, 1959 cl.15

In re John Fairfax & Sons Limited (1977) AR 529, Master Builders' Association of Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1981) 54 FLR 358, Seamen's Union of Australia v Adelaide Steamship Co Limited (1976) 46 FLR 444 referred to.

HEARING

SYDNEY

#DATE 29:4:1986

Counsel for the Applicant: Mr R J Peterson

Solicitors for the Applicant: Messrs Pigott Stinson

Counsel for the Respondent: Mr J W Shaw

Solicitors for the Respondent: Messrs Turner Freeman

ORDER

Upon its true construction cl.15 of the Country Printing Award excludes from performance by members of the Printing and Kindred Industries Union employed by the applicant, except at the discretion of the applicant, any work which involves the operation of the electronic equipment of the applicant used in connection with the entry into storage of advertising material, including the recording upon that equipment of instructions as to the typesetting of that material, being work which affects liaison with any customer of the applicant for the purpose of the validation, checking or consequential correction of such material and whether or not such work is performed before or after the said advertising material is entered into storage upon the equipment.

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

JUDGE1

This is an Application, pursuant to s.110 of the Conciliation and Arbitration Act 1904, for an interpretation of a provision contained in an award made under that Act by the Australian Conciliation and Arbitration Commission and known as the Country Printing Award, 1959. The applicant, Northern Star Limited, is bound by that award as it is the publisher and printer of a daily morning newspaper published in Lismore and the publisher or printer of two free weekly newspapers.

1. The order sought affects the interests of members of the Printing and Kindred Industries Union (PKIU), which union has been made the respondent to the proceedings.

2. The Country Printing Award was amended by a consent order made on 12 December 1979 so as to insert new provisions relating to the use of computerised facilities for storage of editorial and advertising material. In about the year 1977 such equipment had been introduced into the offices of certain metropolitan newspapers. This innovation led to a lengthy and bitter dispute which culminated in a decision of the Industrial Commission of New South Wales (Cahill J) allocating areas of work responsibilities as between journalists, clerical staff and printers: see In re John Fairfax & Sons Limited (1977) AR 529. It seems probable that the purpose of the amendment of the Country Printing Award was to avoid the possibility of a repetition in country newspaper offices of that debilitating experience. However, whilst the judgment of Cahill J contains a comprehensive discussion of the processes involved in the use of computerised data storage banks and of the industrial issues involved in their use, it is not, of course, determinative of the problem arising in this case. It cannot be assumed that the authors of the amendments to the Country Printing Award intended to stake out the respective areas of responsibility in the same manner as had his Honour.

3. The 1979 order inserted into the award, inter alia, a new cl.15, entitled "Input of Editorial and Advertising Material". Clause 15(a) required that any newspaper employer which is a member of the Regional Dailies of Australia Limited -- as is the present applicant -- or of the Australian Provincial Press Association introducing into any office electronic equipment to facilitate input of material (editorial or advertising) into computer banks should give at least three months' notice to the PKIU of the change. Sub-clause (b) seeks to minimise retrenchments and provides for compensation payments in the event of unavoidable redundancies. Sub-clause (c) is the provision whose proper interpretation is in issue in these procedings. It reads:
   
   

"(c) (i) Subject to paragraph (ii) hereof:

(1) The operation of electronic equipment introduced by the employer to facilitate input of editorial material into computer banks and instructions for typesetting including rewriting, revising, checking and correcting of such material shall not be performed by members of the Union unless at the discretion of the employer from time to time they are required to perform such work.

(2) The operation of electronic equipment introduced by the employer to facilitate input of advertising material into computer banks and instructions for typesetting as they affect liaison with the customer for the validating, checking and consequential correction functions, whether performed before or after entry of the advertisement into the system shall not be performed by members of the Union unless at the discretion of the employer from time to time they are required to perform such work.

(ii) The processing of material in 'hard copy' form as defined hereunder, shall be performed by members of the union.

Hard copy definition

(i) Advertising hard copy is copy supplied in written form for keyboarding. It may be typed, printed or handwritten and received at the office by post, courier or other means.

(ii) Editorial hard copy is copy supplied in written form for keyboarding including contributed articles and letters to the editor. It may be typed, printed or handwritten. Hard copy excludes direct input from editorial phone rooms, recognised editorial wire services and news agencies."

Sub-clauses (d) and (e) make consequential provisions and are presently immaterial.

1. The present issue concerns only the input of advertising material -- not editorial material -- and therefore the proper construction of sub-para.(2).

2. Mr Peter Zulpo, General Manager of the applicant, has sworn two affidavits, the contents of which are not in dispute. However, a question arose as to the admissibility of some of the matters deposed to by Mr Zulpo regarding current practice.

3. The present Application seeks an interpretation of the award under s.110 of the Act, not enforcement under s.119; cf Master Builders' Association of Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1981) 54 FLR 358 at pp.360-362. Evidence of conduct is not generally admissible in relation to the proper construction of an award: see Seamen's Union of Australia v Adelaide Steamship Co Limited (1976) 46 FLR 444 at p.445. In one sense present practice is irrelevant.

4. However, counsel for the applicant made plain that he did not seek to prove the present practice for any purpose which might affect the ultimate resolution of the matter but merely in order to increase understanding of the processes involved in the use of the relevant equipment and the nature of the issue, in practical terms, between the parties. I admitted the evidence for that limited purpose.

5. One affidavit of Mr Zulpo deals in some detail with the procedure which has been adopted by the applicant since it first installed computerised equipment in 1984. It appears that the company employs approximately 10 clerks -- who are not PKIU members -- as "advertisement takers". Each clerk has on his or her desk a visual display terminal. The advertisement takers answer telephone calls from persons seeking to place advertisements in the newspapers produced by the company. They take, and immediately enter into the computer storage system, full particulars as to the customer -- including name, telephone number and any account number -- and the advertisement -- including classification, text and form of advertisement. In the case of single column advertisements, that is advertisements which will spread over only a single column of the page, the advertisement takers immediately carry out all the functions necessary to instruct the computer as to the style and layout of the advertisement, leaving to others -- apparently PKIU members -- the tasks of composing those individual advertisements into pages of copy and of giving to the computer instructions for the creation of the metallic plates necessary for printing.

6. In the case of double column advertisements a different procedure has hitherto been adopted. Mr Zulpo explained that the company had preferred to advance gradually into computerisation so that it initially limited the use of the computer facility to single column advertisements. The idea was to familiarise employees with the procedure on single column advertisements before requiring them to deal with more complicated layouts. It appears that, by the time that the company decided to use the computer for double column advertisements, the PKIU had formed its current view about interpretation of cl.15(c) of the award and contended that the giving of typesetting instructions was within the area of responsibility of its members.

7. In the case of double column advertisements calls from customers continue to be taken by the advertisement takers, who enter into the computer the usual details as to the customer and the advertisement. However, in these cases the practice has not been for the advertisement takers themselves to instruct the computer as to layout but for them merely to note in the computer the customer's instructions as to layout, along with the other data, and then to print out a hard copy of the whole entry. This hard copy is given to a printer (a PKIU member) who treats it in the same way as if the hard copy had been received directly from the customer. The printer enters the material on the hard copy into the computer -- thus duplicating the entry of customer particulars and the text of the advertisement -- and then inserts typesetting instructions. As with single column advertisements, composition and subsequent steps are undertaken by printers.

8. The parties agree that the purpose of cl.15(c) is to distribute functions between three categories of employees -- journalists, clerks and printers -- and that nothing in the award furnishes any basis for distinguishing, in terms of that distribution, between single and double column advertisements. Nobody claims that the award requires the production of a hard copy print of the customer details and the text of the advertisement or the re-entry of these particiulars onto the computer. It is accepted by the union that the task of contacting customers in relation to the validating, checking and correcting of entries already in storage is allocated to clerks and not to its members. The present contest between the parties relates to the question whether cl.15(c)(1)(2) allocates to printers or to clerks the task of taking the initial call from customers and of entering details of their orders -- including both text and typsetting instructions -- into the computer storage system.

9. A question arises whether the words "as they affect liaison with the customer for the validating, checking and consequential correction functions" attach to and qualify both "the operation of ... equipment" and "instructions for typesetting" or only the latter phrase. The plural "they" could have been chosen to indicate reference to both functions or to the plural form of the latter function. The union submits that they qualify both, so that all that is excluded from the ambit of its members is liaison for the purposes of validation, checking and correction. The applicant contends for the contrary position, arguing that the sub-paragraph commits to others than PKIU members the whole of the general function described as "the operation" of the equipment.

10. It is not possible, in my view, to read the words "as they affect liaison" etc. as qualifying only "instructions for typesetting". To do so, leaving to others without qualification the "operation" of the equipment, would be to render redundant the reference to instructions for typesetting. The giving of instructions for typesetting -- that is as to typesetting -- is effected by operating the electronic equipment. It would be absurd to qualify the exercise of part of a function whilst granting to the same party the whole function without qualification.

11. Notwithstanding that conclusion, it seems to me that the proper construction of sub-para.(1) gives to clerks the function of taking initial instructions from customers. The tasks not to be performed by PKIU members, and therefore to be performed by clerks, include the operation of the relevant equipment and the giving of instructions for typesetting as they affect liaison with the customer for validation, checking and correction "whether performed before or after entry of the advertisement into the system". The purpose of the use of a computerised data storage facility for advertising material is that the customer's requirements, both as to text and instructions for typesetting, may be immediately entered "into the system". The task of taking instructions as to those requirements inevitably involves checking -- spellings, desired abbreviations and layouts, acceptability of quoted costs, reading back text, etc. That checking may take place before, during or after the entry of the material into the system. Typically, no doubt, elements of checking will occur at all three stages. It does not matter. The sub-paragraph gives to others than PKIU members all customer liaison functions which involve checking. This necessarily includes the first contact with customers, when instructions are taken.

12. Such an interpretation provides a rational result. It gives to clerks a function which, in pre-computer days, would normally have been undertaken by clerks: contact with customers and the recording of their instructions, including in relation to type size, layout etc. It leaves to printers the task of assembling the individual orders into composite newspaper pages. It leaves to clerks the clerical function of re-contacting the customer, if necessary, in relation to any query which might arise regarding the advertisement.

13. The Application seeks an order that, upon its true construction, cl.15 excludes from performance by PKIU members, except at the company's discretion, "any work involving the operation of the Company's electronic equipment in relation to advertising material received by the Company except where that material is received by the Company in hard copy form, as defined". This order is too wide: it would exclude PKIU members from those aspects of operation which do not involve customer liaison and, importantly, operation for composition purposes. In my view the appropriate order is that, upon its true construction and except at the discretion of the applicant, the clause excludes from performance by PKIU members any work which involves the operation of the electronic equipment of the applicant used in connection with the entry into storage of advertising material, including the recording upon that equipment of instructions as to the typesetting of that material, being work which affects liaison with any customer of the applicant for the purpose of the validation, checking or consequential correction of such material and whether or not such work is performed before or after the said advertising material is entered into storage upon the equipment.