Seven Network (Operations) Limited T/A Seven
[2019] FWCA 2005
•28 MARCH 2019
| [2019] FWCA 2005 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Seven Network (Operations) Limited T/A Seven
(AG2019/760)
SEVEN NETWORK (OPERATIONS) LIMITED (NEWS, PUBLIC AFFAIRS AND OPERATIONS) AGREEMENT 2019
Broadcasting and recorded entertainment industry | |
COMMISSIONER JOHNS | MELBOURNE, 28 MARCH 2019 |
Application for approval of the Seven Network (Operations) Limited (News, Public Affairs and Operations) Agreement 2019.
[1] On 19 March 2019 an application was made to the Fair Work Commission (Commission) for the approval of an enterprise agreement known as the Seven Network (Operations) Limited (News, Public Affairs and Operations) Agreement 2019 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (FW Act) by Seven Network (Operations) Limited (Seven). The Agreement is a single enterprise agreement.
[2] The application was expedited because the Commission, as presently constituted, was familiar with the matter having previously presided over an application for the Commission to deal with a bargaining dispute under s.240 of the FW Act. That application (B2018/1162) did not result in ultimate agreement on all outstanding matters, but significant progress was made in discussions between Seven, the Community and Public Sector Union (CPSU) and the Media, Entertainment and Arts Alliance (MEAA). The parties and their representatives are to be congratulated for the productive manner in which they approached the negotiations.
[3] Seven has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertaking in relation to the reconciliation clause in particular cures many of the concerns raised about the Agreement passing the better off overall test (BOOT) pursuant to s.193 of the FW Act.
[4] In the course of considering the final form of the Agreement the following matters remained in issue:
a) Maximum ordinary hours: At clause 21.3(b) of the Agreement, the hours worked by shift workers is defined as 180 ordinary hours per 28 day cycle. That is to say the hours above 152 hours were not described as reasonable additional hours (s.62(1) of the FW Act). Seven submitted that there was no breach of the FW Act because the additional 28 hours is scheduled overtime and reasonable taking into account the requirements of work undertaken by 45 hour shift workers, patterns of work in the industry, and notice of overtime hours. The CPSU took no issue with the clause and noted that the loading paid to employees. The MEAA contended that the Agreement “needs to expressly address the 28 extra hours are reasonable additional hours.” I do not agree. It is plain on the reading of the Agreement when considered as a whole, including the rostering arrangements and overtime payable that the additional 28 hours are reasonable.
b) Annual leave: Clause 9.10 of the Agreement states that casual employees are paid a 20% loading which is paid instead of all paid leave including annual leave. Clause 9.16 of the Agreement indicates that casual employees could be engaged on a regular and systematic basis. A concern about the application of the decision in WorkPac Pty Ltd v Skene 1arose. Both the CPSU and the MEAA took issue with the matter. In response, Seven pointed to the operation of clause 9.15 of the Agreement. The final sentence reads “This clause 9.15 does not affect a casual Employee’s entitlements to leave under the NES including the entitlement to unpaid carer’s leave or unpaid compassionate leave.” I am satisfied that clause 9.15 gives sufficient precedence to the NES (over the Agreement) such that any concern of a WorkPac nature is resolved.
c) Public holidays: It was suggested that under clause 31.1(a) of the Agreement Seven would treat a Public Holiday as one of the employee’s RDOs for the Roster Cycle which that day falls, or a Public Holiday could be directed to be taken as annual leave or an employee may be instructed to take a Public Holiday as TOIL; practices contrary to s.116 of the FW Act. The CPSU also took issue with the matter. In response Seven submitted that,
“…under the Agreement, as a general position, 38 hour Shift Workers, 45 hour Shift Workers and journalists employees are required to work on all public holiday except Good Friday and Christmas Day. This is because of the requirements of the work undertaken by the employees and usual patterns of work in the industry. These employees are provided with annual leave of 6 weeks (up to 7 weeks for operations employees) in compensation for this requirement the journalist employees, the position is consistent with the position under the Award (clauses 23.3 and 26.2).
Clause 31.1 of the Agreement only applies to the public holidays in respect of which the 8 hour Shift Workers, 45 hour Shift Workers and journalists employees are required to work-i.e. all public holidays except Good Friday and Christmas Day.
Given the above, Seven submits that the Agreement is not detrimental to employees in this regard when compared to be NES.”
[5] Having considered the operation of the Agreement as a whole I accept Seven’s submission.
[6] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186 (including, without limitation s.186(2)(d), that the Agreement passes the BOOT), 187, 188 and 190 as are relevant to this application for approval have been met.
[7] When lodging the application Seven advised that it had become aware of an incorrect clause reference in the Agreement; namely that, in clause 11.2 of the Agreement, there was a reference to “11.3(b)” rather than just “11.3”. The error meant that the Agreement did not reflect what had been proposed by the CPSU and MEAA in earlier drafts of the Agreement. Seven accepts the error. Pursuant to s.586(a) of the FW Act I consider it appropriate in the circumstances to correct the error by amending the Agreement such that, in clause 11.2 of the Agreement, the reference to “11.3(b)” reads “11.3”. I make that amendment.
[8] The CPSU and the MEAA being bargaining representatives for the Agreement, have given notice under s.183 of the Act that each employee organisation wants the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.
[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 April 2019. The nominal expiry date of the Agreement is 3 April 2022.
COMMISSIONER
Annexure A
1 [2018] FCAFC 131.
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