Fair Work Act 2009

s.156 - 4 yearly review of modern awards

Journalists Published Media Award 2010 - substantive issues.

[1] As part of the 4 yearly review of modern awards currently being conducted by the Commission, the Media, Entertainment and Arts Alliance (MEAA) has proposed a number of variations to the Journalists Published Media Award 2010 (Award). Subject to certain exceptions, clause 4.1 of the Award provides that it covers employers in the "published media industry" with respect to their employees "engaged in journalism in its literary, artistic and photographic branches and/or the gathering, writing or preparing of news matter or news commentaries" within the classifications listed in clause 13. The expression "published media industry" is defined in clause 3.1 as follows:

published media industry means the industry concerned with the publication of newspapers, magazines, periodicals, journals and online publications, and the provision of wire services

[2] The MEAA's proposed variations seek to address five issues:

(1) the exclusion of online-only publications from the application of Part 5 of the Award;

(2) the exclusion of access to higher classifications at certain types of publications;

(3) the exclusion of employees of country non-daily newspapers from the weekend penalty rate entitlement in the Award, and the clarification as to when this entitlement operates;

(4) the exemption of "specialist publications" from a range of provisions in the award; and

(5) the exemption of certain positions from the coverage of the Award.

[3] The current 4 yearly review of modern awards was initiated pursuant to s 156 of the Fair Work Act 2009 (FW Act). Section 156 was repealed by the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 effective retrospectively from 1 January 2018, but clause 26 of Schedule 1 to the FW Act (which was added by the amending Act) requires the Commission to continue to apply s 156 to the current review as if it had not been repealed. Section 156(2) of the FW Act identified the task to be undertaken in a 4 yearly review as follows:

(2) In a 4 yearly review of modern awards, the FWC:

(i) one or more determinations varying modern awards; and

(iii) one or more determinations revoking modern awards; and

(c) must not review, or make a determination to vary, a default fund term of a modern award.

[4] However the conduct of the 4 yearly review is subject to s 138, which provides:

A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.

[5] The modern awards objective to which s 138 refers is set out in s 134(1) as follows:

(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(b) the need to encourage collective bargaining; and

(c) the need to promote social inclusion through increased workforce participation; and

(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and

(da) the need to provide additional remuneration for:

(i) employees working overtime; or

(ii) employees working unsocial, irregular or unpredictable hours; or

(iii) employees working on weekends or public holidays; or

(iv) employees working shifts; and

(e) the principle of equal remuneration for work of equal or comparable value; and

(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

[6] Section 134(2)(a) provides that the modern awards objective applies to the performance or exercise of the Commission's functions or powers under Pt 2-3 of the FW Act.

[7] The general principles applicable to the conduct of the 4 yearly review have by now been firmly established and may be summarised as follows:[1]

• section 156(2) provides that the Commission must review all modern awards and may, among other things, make determinations varying modern awards;

• "review" has its ordinary and natural meaning of "survey, inspect, re-examine or look back upon";[2]

• the discretion in s 156(2)(b)(i) to make determinations varying modern awards in a review, is expressed in general, unqualified, terms, but the breadth of the discretion is constrained by other provisions of the FW Act relevant to the conduct of the review;

• in particular the modern awards objective in s 134 applies to the review;

• the modern awards objective is very broadly expressed,[3] and is a composite expression which requires that modern awards, together with the NES, provide "a fair and relevant minimum safety net of terms and conditions", taking into account the matters in ss 134(1)(a)-(h);[4]

• fairness in this context is to be assessed from the perspective of the employees and employers covered by the modern award in question;[5]

• the obligation to take into account the s 134 considerations means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process;[6]

• no particular primacy is attached to any of the s 134 considerations and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award;[7]

• it is not necessary to make a finding that the award fails to satisfy one or more of the s 134 considerations as a prerequisite to the variation of a modern award;[8]

• the s 134 considerations do not set a particular standard against which a modern award can be evaluated; many of them may be characterised as broad social objectives;[9]

• in giving effect to the modern awards objective the Commission is performing an evaluative function taking into account the matters in s 134(1)(a)-(h) and assessing the qualities of the safety net by reference to the statutory criteria of fairness and relevance;

• what is necessary is for the Commission to review a particular modern award and, by reference to the s 134 considerations and any other consideration consistent with the purpose of the objective, come to an evaluative judgment about the objective and what terms should be included only to the extent necessary to achieve the objective of a fair and relevant minimum safety net;[10]

• the matters which may be taken into account are not confined to the s 134 considerations;[11]

• section 138, in requiring that a modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective, emphasises the fact that it is the minimum safety net and minimum wages objective to which the modern awards are directed; [12]

• what is necessary to achieve the modern awards objective in a particular case is a value judgment, taking into account the s 134 considerations to the extent that they are relevant having regard to the context, including the circumstances pertaining to the particular modern award, the terms of any proposed variation and the submissions and evidence;[13]

• where an interested party applies for a variation to a modern award as part of the 4 yearly review, the task is not to address a jurisdictional fact about the need for change, but to review the award and evaluate whether the posited terms with a variation meet the objective.[14]

[8] As we will explain in due course, the matters required to be considered in connection with the modern awards objective which are set out in s 134(1)(da) require particular attention in this matter. Section 134(1)(da) was added to the FW Act in 2013 as a result of a legislative amendment.[15] The principles relevant here to the interpretation and application of s 134(1)(da) are as follows:

• s 134(1)(da), although clearly a relevant consideration, is not necessarily determinative;

• the provision requires consideration of the impact of working at such times or on such days on the employees concerned (i.e. the extent of the disutility), the terms of the Award and the extent to which it compensates employees for working at such times or on such days, and the extent to which working at such times or on such days is a feature of the industry regulated by the Award;

• ultimately the issue is whether the Award prescribes a particular penalty rate (or not) which provides "a fair and relevant safety net", and a central consideration in this regard is whether employees are provided with "fair and relevant" compensation for the disutility associated with working at the relevant times;

• s 134(1)(da) is not a statutory directive that additional remuneration be provided in the identified circumstances;

• s 134(1)(da) does not prescribe or mandate a fixed relationship between the remuneration of those who work on, for example, weekends and public holidays and those who do not, and the additional remuneration to be paid to the employees whose working arrangements fall within the scope of (relevantly) s 134(1)(da)(ii) and (iii) will depend, among other things, on the circumstances and context pertaining to work under the Award; and

• it is not necessary to establish that the hours worked on overtime, weekends, public holidays or shifts are "unsocial ... hours", since they are identified as separate circumstances in s 134(1)(da); rather it is necessary to take into account the need to provide additional remuneration for working of overtime, weekends, public holidays or shifts irrespective of whether working at such times can be characterised as working unsocial hours.[16]

[9] We deal below with each issue raised by the MEAA's claims in turn.

Exclusion of online-only publications from Part 5 of the Award

[10] In respect of the first issue, clause 4.10 of the Award provides:

4.10 Part 5 - Hours of Work and Related Matters of this award will not have any application to the following employees:

(a) an employee employed on an online publication other than those employees described in clause 3.2; or

(iii) Level 9 by a country non-daily newspaper.

3.2 Where this award refers to an employee working on an employer's print publication (such as a metropolitan daily newspaper or a regional daily newspaper), it includes a reference to an employee employed by that employer on the print publication's associated online publication.

[12] The effect of clause 4.10(a) when read together with clause 3.2 of the Award is that journalists working for wholly online publications are exempted from the operation of Part 5 of the Award, but journalists working for wholly print publications or for publications which have both a print version and an online version are not save for those employees referred to in clause 4.10(b). Part 5 of the Award contains provisions dealing with ordinary hours of work, breaks, shiftwork and weekend penalties, overtime, specialist publications and requests for flexible working arrangements.

[13] The MEAA proposes that this position be modified so that Part 5 of the Award would apply equally to the publications of all employers covered by the Award, whether they are print or online publications. To that end, it seeks that clause 4.10(a) be deleted, and that references throughout the Award to any "newspaper" be altered to "news publication". It also seeks consequential variations concerning the content of "metropolitan daily", "regional daily" and "country non-daily" news publications as those expressions are defined in clause 3.1, and also seeks the following variations to the definition of "editorial employee" in clause 3.1 to encompass all forms of online journalism:

editorial employees include journalists, reporters, writers, photographers, sub-editors, cartoonists, artists, video journalists, moderators of blogs on news websites, editorial content producers for online publications, chiefs of staff, picture editors, designers, and production managers and directors, editors, multi-media editors or producers, social media editors or producers.

[14] In support of this proposed variation, the MEAA submitted that:

• the published media industry has shifted from print to online publication to the extent that the latter now has primacy, but the Award still reflects the primacy of print and the ancillary nature of online publication;

• the Award should be amended so that it is "platform neutral" and provides the same regulation of employment for online employees as it does for the print workforce;

• the "present and future for the Australian published media industry is online", as reflected in print circulation of newspapers and magazines, publication expenditure, advertising income, audience data and work practices; and

• the exclusion of employees of entirely online publications from the entirety of Part 5 of the Award meant that the Award did not provide a "fair and relevant minimum safety net of terms and conditions" consistent with the modern awards objective.

[15] The MEAA's submissions contained an extensive amount of source-identified statistical material and references to documentary material demonstrating the shift to online publication in the published media industry. We shall not endeavour to summarise the entirety of this material, although we have taken all of it into account, but some of the salient points are as follows:

(1) The digital transformation of news publications began in the 1990s, with Fairfax launching its first online news site in 1995 and News Limited following soon afterwards. The most rapid growth in readership of online news publications however has been in recent years. In 2018, News Corporation had a total of 442,400 digital subscribers (up from 375,400 in 2017) and Nine/Fairfax had 313,000 (236,000 for the Sydney Morning Herald, The Age and the Australian Financial Review in 2017).

(2) Newspaper print circulations are collapsing. Some examples of the drop in print circulation in the decade from 2008 to 2018 are as follows (Monday-Friday editions):

(3) With the exception of the Newcastle Herald, all national and metropolitan daily mastheads now have a digital readership numbers well in excess of print readership numbers.

(4) Similar trends have occurred in the magazine sector. Magazine print advertising revenue fell from $480 million in 2013 to $311 million in 2017, while digital advertising revenue is expected to increase from $87 million in 2017 to $123 million in 2022. There has been an average 40% drop in print circulation across eight major weekly magazine titles, whilst there has been significant growth in digital readership to the extent that, for many leading magazines tiles (13 out of 37), online readership exceeds print readership.

(5) Associated with these developments has been a shift of significant advertising revenue to companies such as Google and Facebook and to discrete online sales websites. Online advertising now accounts for half of all advertising expenditure. Print advertising, by contrast, was $1.927 billion in 2013, rose to $2.24 billion in 2014, but declined to $1.63 billion in 2017 and is projected to fall to $798 million in 2022. Total newspaper revenues have dropped from a high of $5.696 billion in 2008 to $3.2 billion in 2017.

(6) Rates of internet access and social media usage in Australia are amongst the highest in the world. Social media such as Facebook are now a major source of news. It is the main source (36%) of news for 18-24 year olds; 79% of news consumers had used news apps, with 34% having used them in the last 24 hours; in 2018 access to online news had overtaken traditional offline sources including television for the first time; and in 2018, 36% of news consumers access news mainly on mobile phones.

(7) This transformation has altered the workforce of published media employers. Total jobs in Australian newspapers have declined from 23,472 in 2010-11 to 13,907 in 2018 - a drop of about 40%. An estimated 4000 of these jobs were editorial jobs. Both News Corporation and Fairfax have expended hundreds of millions of dollars in redundancy payments in the last decade. Similar trends have occurred in the magazine sector. Newsrooms for print/online publications have changed: they now are much smaller and use freelance employees to a greater extent; employees are necessarily digitally aware; content is driven by audience metrics; audiences expect constant updates during the day; and they are "more nimble and less hierarchical", with less layers of management. Digital editorial staff have a broader range of skills and can work on multiple platforms; they can gather, prepare and present news in textual, audio and video formats, provide headlines and thumbnails for their stories and pay close attention to how their stories are followed in social media.

(8) Since the Award came into force, a number of new digital-only media companies have emerged (often referred to as "digital natives"). Digital-only newsrooms are flourishing, with substantial growth in employed journalists, audiences and revenue. However they are still not major employers; in 2018, six of the largest digital natives with a combined monthly audience of close to five million collectively employed less than 250 full-time equivalent staff.

[16] The MEAA relied on two witness statements in support of this aspect of its case. The makers of the statements were not required to attend for cross-examination. The first was made by Peter Fray, Professor of Journalism Practice and co-director of the Centre for Media Transition in the Faculty of Arts and Social Sciences at the University of Technology, Sydney. Mr Fray worked for Fairfax Media in the period from 1987 to 2012, and held a range of positions there including (in chronological order) editor of the Sunday Age, editor of the Canberra Times, editor of the Sydney Morning Herald (SMH), and editor-in-chief of the SMH and the Sun-Herald. Mr Fray described in his evidence the "twin disruptive forces" of the internet and the "profound shift of revenues from the print product to online", and said that the "business model which has sustained the newspaper industry for a century has all but disappeared, bringing forth a fundamental change in how money is made and work is organised". The classified advertising revenues which previously underwrote journalism had migrated first to disaggregated classified sites and more recently to digital platforms such as Facebook and Google. He said that he was required to cut many millions of dollars of cost from the SMH to equip it to meet the demands of the digital world, and the steps taken included:

• the outsourcing of sub-editing functions;

• enhanced sharing of editorial tasks between the SMH and The Age;

• upskilling sub-editors and reports to file or work for both print and online;

• the integration of workstreams, with priority given to online or mobile offerings ahead of print;

• reduction in newsroom numbers; and

• reduction in editorial management and the flattening of roles.

[17] Mr Fray said that new entrants to the news media market (Buzzfeed, The Guardian Australia, the New Daily, Crikey and Junkee) are generally digital-only, and could not afford the associated costs of printing a newspaper.

[18] The second witness statement was made by Christopher Knaus, a journalist who previously worked for the Canberra Times and had worked since 2016 for The Guardian Australia. He said that the management of The Guardian made a deliberate decision to establish the Australian edition of The Guardian as a digital-only publication, which allowed it to operate "like a start-up" with a small stable of journalists, at lower rates of pay, employment on-costs, and with no expensive physical publishing costs. Many journalists employed by The Guardian had been made redundant by Fairfax, News Corporation or the ABC. The Guardian was accessed regularly by over one million before the Australian edition started up, and had increased to the point that the Australian edition was now breaking even.

[19] Mr Knaus said that under the Award, employees such as him could not access Part 5 of the Award, which meant that he did not have entitlements with respect to unsociable hours, weekend work and overtime. This had greatly affected him and his colleagues, since there was no recognition of long hours, early starts, after-work engagements and work on weekends to cover the news. The staff of The Guardian Australia had access to overtime, but there was no formal system of recording hours or accruing hour-for-hour overtime. The individual logging of overtime without any baseline obligation on the employer to recognise the hours worked had made any application for approved overtime uncomfortable to the extent that most staff had ceased to ask for it. Mr Knaus said that the work performed by journalists at The Guardian Australia was the same as for journalists at print publications, and they reported on the same matters and with the same quality and depth. The Guardian Australia was not the only publication with these problems, as most new serious media ventures were digital-only. Mr Knaus said that the Award would become less and less relevant to future workers in the published media industry unless Part 5 of the Award was made applicable.

[20] Mr Knaus described his work as involving a regular day starting at 9am and finishing at 6.30pm, five days per week, with a 15 minute lunch break. On his rostered days off over the weekend, he remained available by email and responded as needed, and he used weekends to speak to his contacts, monitor the news and communicate regularly with news management about new stories. Once every 2-3 weekends he would file a story on a day he was rostered off. He said that his work did not substantially change when he moved from the Canberra Times to The Guardian Australia, and both print and online journalists operate from the same standpoint of getting the news out fastest while being accurate and ethical, and both have had to deal with rolling deadlines, smaller newsrooms, and being required to multi-task by writing stories, taking photos, writing captions and creating inter-active graphics. Both The Guardian Australia newsroom and major print newsrooms are rostered across a 24/7 period of time, with weekend work and early and late shifts.

[21] This first aspect of the MEAA's case was opposed, to varying degrees, by the Daily Mail Australia, Nine Entertainment Co. Pty Ltd and Rural Press. The Daily Mail Australia (DMA), which is an online-only news publication, submitted that the proposed variations affecting online-only publications involved very significant changes to the Award and consequently needed to be approached cautiously and with particular regard for whether the changes were necessary to meet the modern awards objective and the likely impact of the change on employers who would be affected. The DMA said that the MEAA's submissions and evidence did not demonstrate that the proposed variations would ensure that the Award would meet the modern awards objective. The mere proposition that there had been a shift from print media to online publication, or that there had been a decline in revenue and job losses at print publications, did not make out a case for the full application of the Award to online-only publications. The evidence of Mr Knaus relied solely on a very high level anecdotal comparison of his experiences in print media and in one online-only publication, and was inadequate to demonstrate that the proposed variations were warranted to ensure that the modern awards objective was met. The proposed variations were likely to have significant adverse impacts on the DMA, and would require the DMA to introduce a time and attendance system to monitor the hours of work of its employees, change its roster processes and implement a workforce management system and hire specialist personnel to assist with the implementation of the changes, and these steps would involve additional expense. If the DMA continued its existing rosters and working arrangements, there would be a significant increase in wage costs, and such cost increases would likely require the DMA to consider making operational changes to its business, many of which would reduce flexibility and effectiveness.

[22] The DMA drew attention to submissions made to the AIRC award modernisation Full Bench by a number of employer parties to the effect that it would not be appropriate to extend "various terms and conditions regarding additional leave benefits and restrictive hours arrangements" to employees who were at that time award-free or only subject to the minimum conditions set out in the specialist publications award, that online publishing was separate from other forms of publishing, and that the appropriate terms and conditions for online-only publications were the rates of pay based on the Journalists (Specialist Publications) Award (with some modifications to the classifications structure) and those contained in the NES. The current Award was the result of substantial acceptance of this position by the AIRC award modernisation Full Bench as constituting a "reasonable compromise", and the MEAA had not demonstrated why the careful balance that was struck should now change.

[23] In the alternative and without prejudice to the above submissions, the DMA submitted that if the Commission was minded to entertain any part of the MEAA's proposed variations, it should not give effect to any changes for at least 12 months and phase in any variations over a number of years. Part 5 of the Award had never previously applied to the DMA (or any other online-only publication), and the DMA would need an appropriate opportunity to consider how to comply, to implement systems and processes in order to comply, and to manage the adverse costs impact of the changes. The DMA also submitted that the early morning and afternoon shift penalties and the weekend penalty provided for in clause 21 should not apply to the DMA. In the former case, early morning work was key to the role of a journalist, and early starts and late finishes were no longer considered to be unsociable hours but rather accommodated flexibility for the employee to enable them to manage personal or family responsibilities. In respect of weekend work, the DMA currently provides its editorial employees with two consecutive days off each week, although not obliged to, to ensure they are well-rested and receive a suitable break. The imposition of a weekend penalty might require the DMA to reconsider its operating model. If these penalties were to be introduced, they should be phased in over a multi-year period.

[24] The DMA adduced evidence from two witnesses. The first was Kimberley Brunt, who has been the Assistant Managing Editor of the DMA, a wholly online publication, since its inception in 2017. Her role included responsibility for staffing budgets, editorial employees' salaries, and human resources issues including managing contracts, terms of employment, promotion letters, performance reviews, salaries and rosters. She has been responsible for considering the DMA's compliance with the Award and the process for implementing potential changes to the Award. She said the DMA employs about 109 editorial employees covered by the Award, of whom 92 are full-time. The DMA operates on 20 hours per day, 7 days per week basis, and editorial employees are required to work rotating shifts on a roster which covers this. The roster contains day, afternoon and night shifts operating at staggered times. Its minimum rostering requirement is 72-74 editorial employees on Monday to Friday, 34 on Saturday and 39 on Sunday. Various shift patterns are used to cover the 7-day roster period, and most employees typically work across all of the shift patterns. The rosters are published four times per year, three months in advance, and accommodate agreements that have been made with individual staff concerning the shift patterns they will work including employees with carer's responsibilities. Full-time editorial employees are engaged on contracts of employment providing for an annual salary and, pursuant to those contracts, employees are expected to work reasonable additional hours. Ms Brunt said that the DMA did not have any time and attendance systems in place, and it relied on Page Editors or Editors to report any late attendances, unaccounted for absences or additional approved hours.

[25] Ms Brunt said that if Part 5 of the Award was applied to the DMA, it would mean that it would have to pay overtime for hours worked in excess of an average of 38 hours per week or 11 hours per day (or 12 by agreement) or in excess of a rostered shift, allow staff a paid break of not less than 20 minutes where they are required to work five hours or more, and pay penalty rates for early morning, afternoon and night shifts and for weekends. To manage this, the DMA would have to introduce an automated time and attendance system to monitor and track the hours of work for editorial employees, and roll out training across the business about such a new system and the need to control time, attendance and overtime including ensuring that employees complete their work within applicable shift periods. The way in which rosters are prepared would need to be altered, which might require consideration of a "leaner operating model" which improves productivity and increases output, moving employees to permanent roster arrangements and adopting a roster pattern which does not provide for two consecutive days off. There would likely be a change to the work culture, in that employees typically stay back to finish a story, whereas if Part 5 applied and there was a risk of incurring overtime, employees would be required to hand over the story at the end of a shift. Ms Brunt said that the DMA would also have to reconsider whether the salaries it pays employees are sufficient to cover Award entitlements if Part 5 applied. Ms Brunt's estimate was that it would take 4-5 months to implement a time and attendance system, a month to put in place a comprehensive communications and training plan and to consult with employees, and three months to recruit an HR professional to deal with roster management and compliance. Ms Brunt's overall estimate was that the DMA would need at least ten months to be in a position to implement and apply Part 5 of the Award.

[26] The other DMA witness was Bernadette Serhal, its Head of Finance. Ms Serhal also described what she considered to be the implementation issues for the DMA if the Commission applied Part 5 of the Award to its operations. She said that in June 2019 she had made a number of inquiries with third party providers, and received quotes of between $17,000 and $32,000 for the provision of a workforce management system with time and attendance functionalities which could integrate with the DMA's existing payroll processes.

[27] Ms Serhal also described how, in early 2019, she had undertaken a project which analysed whether employees' salaries adequately compensated them for their entitlements under the Award, and the outcome was that they did. However if Part 5 of the Award was applied, a time and attendance system would be needed to carry out this task. Like Ms Brunt, Ms Serhal estimated that DMA would need at least five months to implement such a system once it was approved for purchase, at an initial cost of $23,000 and at an ongoing annual cost of $11,000 (excluding GST). Ms Serhal had also attempted to model the wages cost of applying Part 5 of the Award, and she described in detail the method by which she did this. The detailed results of the modelling exercise are the subject of a confidentiality order, but it can be stated that for some, but far from all, employees, an increase in their salaries would be required to cover all award entitlements (assuming existing working patterns were maintained). Ms Serhal said it might be possible to make operational changes to reduce this cost impact by requiring shorter shifts to avoid shift penalties, reducing the number of night shifts, cutting back on all shifts that trigger penalties, reducing the number of editorial employees required to work on weekends, reducing reliance on casual employees, and ensuring that overtime is not incurred. Ms Serhal's estimate was that it would take 10-12 months in total to implement and achieve compliance with Part 5 of the Award.

[28] Ms Serhal said that the online advertising industry was the sole source of revenue for the DMA. This industry was growing, and the online advertising market in Australia was valued at $8.8 billion in 2018. However the DMA had to compete for this market with a large variety of competing internet platforms including search engines and social media platforms. 37% of the $8.8 billion was attributable to the "General Display" segment in which the DMA participated, and this segment was experiencing growth. However the DMA faced increasing competition and a need to stay relevant in the changing media landscape, and Ms Serhal expressed concern that this could affect the DMA's ability to continue to grow and employ additional employees in Australia.

[29] Nine Entertainment Co. Pty Ltd (Nine) merged with Fairfax Media Limited in December 2018, with the result that Nine, in addition to its television and radio assets, now publishes the Australian Financial Review, the SMH, The Age, the online publications associated with these newspapers, and additionally a number of online-only publications such as the Brisbane Times, WAtoday, nine.com.au, 9Honey and Pedestrian.TV. Nine submitted that:

• the MEAA had not presented clear, cogent or consistent evidence or submissions that identify how its proposed variations are necessary to meet the modern awards objective;

• it is unclear how the developments in the published media industry identified by the MEAA weigh in support of the proposed changes;

• the fact that more readers are accessing news online and print workforces and revenue may be decreasing does not necessarily lead to the conclusion that the modern awards objective is not met;

• online-only publications operate in a quite different manner to print publications and their associated online publications, in that they do not have a daily print deadline and do not have the opportunity to leverage off the associated publications revenue and advertising source;

• there is no basis to conclude that a "one size fits all" approach was necessary to meet the modern awards objective;

• digital publications deliver news on a 24/7 basis, and it is imperative that such publications can structure their workforce in a way that permits them to deliver news in a timely way and in accordance with reader expectations without affecting their viability;

• there was no evidence that employees working the hours that are subject to penalty rates under clause 21 are suffering from any disability or do not prefer to work at these times;

• the imposition of Part 5 conditions would lead to a potential uplift in employment costs; and

• the MEAA had not adduced any evidence or persuasive argument that there should be a departure from the position established in the award modernisation process which led to the making of the Award.

[30] Nine also opposed the MEAA's proposed new definitions of the expressions "metropolitan daily", "regional daily" and "country non-daily" news publications on the basis that they operated by reference to the content of the publications, and it submitted it was inappropriate for an award to attempt to dictate the content of a publication.

[31] Nine adduced evidence from a number of witnesses which was, at least in part, relevant to this aspect of the MEAA's award variation claims. Alex Lavelle, the Editor of The Age, said in his two witness statements that in his newsroom of approximately 140, journalists were generally "platform agnostic" and worked across both print and digital platforms at least in some capacity. There were a few dedicated print and digital editors who managed their specific platform. Home page editors for the online publication have shifts running around the clock, and there were one or two breaking news reporters who worked shifts between 5am and 10pm. Mr Lavelle said that, in his experience, some employees preferred shift work because it suited their family situation or lifestyle.

[32] Matthew Rowley, the Chief Executive Officer of Pedestrian Group and the previous Chief Revenue Officer of Fairfax, gave evidence concerning the activities of the Pedestrian business. He said that it published content across a range of online-only titles, and the content included news, entertainment, music, style and fashion, sport, health, dating, money, technology, business and money, and lifestyle. Each title has a number of reporters and writers who prepare content, and Pedestrian also has a dedicated team of "native" editorial employees who solely prepare and manage commercial content for advertisers. The majority of staff worked standard hours 9.00am to 5.00pm, Monday to Friday, but there was some limited degree of early morning and afternoon shiftwork and weekend work. Mr Rowley said that, based on his Nine/Fairfax experience, advertising revenues generally came from display advertising, or from sponsored or "native" content. He said that when he first commenced at Fairfax in 2017, print advertising revenue had declined by 15-16% for the last 4-5 years, and yields from digital advertising were declining despite having previously gone through a large growth phase because of an oversupply of inventory and an increase in programmatic advertising that made it easier to buy competitively. Mr Rowley's view was that although at Nine and Fairfax the decline in advertising revenue had been slowed, it was still stressed in both print and digital publications.

[33] In respect of Pedestrian, Mr Rowley said that if the business was required to comply with Part 5 of the Award, in respect of work performed outside of standard hours he would determine the cost impact and whether it could be withstood within profit margin, and examine whether these hours could be cut or the work outsourced. Mr Rowley expressed the view that requiring all online-only publications to pay their employees penalty rates would be a barrier to entry for new publishers, severely hamper the agility and flexibility the industry relied upon, and would negatively affect the opportunities for digital journalists in the industry.

[34] Kerri Elstub, the Digital Editorial Director for Nine, is responsible for Nine's news, sport, lifestyle and entertainment digital websites, which are the 9NEWS site, Nine's Wide World of Sports site (WWOS), the 9Honey site, Nine Entertainment and the nine.com.au site. She gave evidence that the 9NEWS team was staffed Monday-Friday between 5am and 10pm across three shifts, and on weekends from 6am to 11pm by a morning and afternoon shift. The WWOS team generally worked across a span of 6am to 4am Monday to Friday and 7am to 6am Saturday and Sunday. The 9Honey team covered 6am to 6pm Monday to Friday and 8am to 4pm Saturday and Sunday. Most employees, except at 9Honey, have a flexible roster which applies on a rotating basis, so that an employee's start time will change from week to week to ensure fairness. At 9Honey, most employees have relatively set shifts. Rosters are prepared after extensive consultation with employees and published three months in advance.

[35] Ms Elstub said that she did not have any surplus in the staff budget and thus had no scope at present to increase the costs of employment. She said that if the Award was amended so that Part 5 applied to her employees, she would need to identify the impact on staffing costs and determine how current staffing arrangements could be changed to accommodate budget restraints and still deliver a competitive product to readers. Although difficult to quantify, the proposed changes would result in significant cost impacts.

[36] Rural Press is the holding company for the corporate group trading under the name Australian Corporate Media (ACM), which was previously part of Fairfax Media Limited but was spun off after the Nine/Fairfax merger. Rural Press subsidiaries publish the Canberra Times, the Newcastle Herald, the Illawarra Mercury, a range of regional daily newspapers and country non-daily newspapers, weekly agricultural publications such as The Land, and various other publications. Its opposition to this aspect of the MEAA's case was confined to the proposed replacement of references to "newspapers" throughout the Award with "news publications". It submitted that the definitions in clause 3.1 which currently distinguished between "metropolitan daily", "regional daily" and "country non-daily" newspapers operated by reference to their principal area of distribution as well as their frequency, but these definitions would lose validity if they encompassed on-line new publications.

[37] As stated in the submissions of the DMA, employees of online-only publications were award-free when the AIRC undertook the award modernisation exercise mandated by Part 10A of the WR Act. There appears to have been a consensus that a modern award should cover them, but there were differing submissions as to the form any award regulation should take. In a decision issued on 22 May 2009,[17] the AIRC award modernisation Full Bench stated the following conclusion concerning this issue:

"[95] Many employees working for news and editorial websites are not currently award covered. The employers acknowledge that journalists employed on online publications should be covered by an award. The draft award provides that the employees of an employer working on an online publication that is associated with that employer's print publication be covered by the award in the same way as other journalists. Journalists employed by online businesses not associated with a print publication would also be covered by the award, though they would be exempted from the hours, overtime and shiftwork clauses. Our preliminary view is that this is a reasonable compromise between the need to ensure appropriate award coverage of a new area of employment created by technological change and the need for flexibility and limiting the imposition of additional costs on employers."

[38] The above conclusion was not subsequently revisited by the Full Bench and they are reflected in the current terms of the Award.

[39] While it may be accepted that there is a presumption that the Award met the modern awards objective at the time it was made, including in its application to online-only publications, there are two immediate reasons why we consider that reconsideration as to whether it meets the objective in this respect is now required. The first is that paragraph (da) has been added to the modern awards objective in s 134(1) since the Award was made by the AIRC award modernisation Full Bench, and that now requires consideration to be given of matters which the Full Bench did not need to consider, namely (in respect of employees of online-only publications) the need for additional remuneration for employees working (relevantly) overtime, unsocial hours, weekends and shifts. The second is that the Full Bench's 2009 characterisation of online-only publications as a "new area of employment created by technological change" as a foundation for its conclusion that Part 5 of the Award should not apply is clearly no longer valid. The evidence before us, which we have summarised above, shows clearly that online-only publications are an entrenched, growing and very significant segment of the published media industry. This is demonstrated not only by the information concerning trends in the industry provided by the MEAA, which is set out in paragraph [15] above, was not the subject of contest and which we wholly accept, but also the evidence of Mr Knaus concerning The Guardian Australia, the evidence of Ms Brunt and Ms Serhal concerning the DMA, and the evidence of Mr Rowley concerning Pedestrian and its various websites, and that of Ms Elstub concerning Nine's news, sport, lifestyle and entertainment digital websites. That the conclusion of the AIRC award modernisation Full Bench has been vitiated by the passage of time and major developments in the industry is confirmed by the fact that The Guardian Australia and the DMA, which are now well-established parts of the Australian news media landscape, did not even exist in 2009.

[40] Part 5 of the Award contains provisions concerning ordinary hours (clause 19), breaks (clause 20), shiftwork and weekend penalties (clause 21), overtime (clause 22). Clause 23, which concerns specialist publications, is dealt with separately later in this decision; it is sufficient to note that it contains a note which confirms that online-only specialist publications are wholly exempted from Part 5 by virtue of clause 4.10(a). Clause 23A, which concerns requests for flexible working arrangements, was only added to the Award effective from 1 December 2018, and its placement in Part 5 so that it is covered by the exclusion in clause 4.10(a) was presumably a mistake.

[41] It may be observed that the extent of regulation imposed by Part 5 is minimalist. In particular:

• clause 19 allows ordinary hours to be worked at any time of the day and on any day of the week;

• ordinary hours, which are an average of 38 per week, may under clause 19 be worked on any five days in the week, with a minimum of 4 hours per day and a maximum of 11 hours per day (or 12 by agreement with the employee), and the arrangement of hours may be established by majority or individual agreement;

• clause 20 requires a break of not less than 20 minutes after every 5 hours work, and if the break is one hour or more (or 30 minutes or more in the case of a country non-daily newspaper), it is unpaid;

• clause 21.1 imposes a shift loading of 10% on shifts any part of which fall within 6.00-7.00 am (early morning shifts) or which conclude between 6.00pm and 8.30pm (afternoon shifts); and clause 21.2 provides that for shifts any part of which fall within 8.30pm and 6.00am (night shifts), a loading of 17.5% is payable for employees of a "metropolitan daily newspaper, suburban newspaper, a magazine or a wire service" and 15% for employees of a "regional daily newspaper or a country non-daily newspaper";

• clause 21.2 imposes a loading or penalty of 10% for employees rostered for weekend shifts (but excludes employees of country non-daily newspapers, an issue which is dealt with later in this decision); and

• clause 22 provides that overtime is only paid out (at the rate of time and a half for the first two hours and double time thereafter) if not taken as time off in lieu (TOIL) at single time within 4 months or on termination, provided that by agreement it may be paid as it is worked; and

• clause 23 also contains record-keeping requirements concerning overtime and TOIL.

[42] There is nothing in Part 5 which places restrictions on the operation of a fully flexible and efficient "24/7" published media operation. It does not require employees to actually pay for overtime provided that effective TOIL arrangements are in place. The shift penalties provided for are reasonably standard, and the weekend penalty rate of 10% is extremely modest compared to the rates found in other modern awards. The meal break arrangements are standard. The complete exclusion of online-only publications from the application of Part 5 of the Award has two principal consequences:

(1) Employees of such publications may (subject only to the right of an employee to refuse to work additional hours if they are unreasonable in s 62 of the FW Act) be required to work any number of hours in a week and will not be entitled to any additional remuneration whatsoever.

(2) Employees may be required to work at any time of the day and on any day of the week and (except in respect of public holidays, which are dealt with outside of Part 5 of the Award in clauses 24.2 and 27) will not be entitled to any additional remuneration whatsoever in the form of shift loading or weekend penalties.

[43] It is clear from the evidence of Mr Knaus, Ms Brunt, Ms Serhal and Ms Elstub that work on early morning, afternoon, night and weekend shifts, and at unsocial hours generally, is an entrenched and fundamental feature of the employment of journalists at online-only publications, so that the consequences of their exclusion from Part 5 entitlements identified above are real and not merely hypothetical. The practical result is that the minimum entitlements to remuneration under the Award for online-only journalists are significantly inferior to those of journalists working at print publications or print publications with associated online publications.

[44] The evidence does not disclose that there is any justification in terms of the nature or value of the work performed for this difference in entitlements. We are satisfied, on the evidence before us, that the work of journalists of print publications, print/online publications and online-only publications is fundamentally the same. As the evidence of Mr Lavelle made clear, journalists working on print newspapers with associated online publications are "platform agnostic" in that almost all are required to prepare content for both print and online publications and exercise the range of skills required for both. Mr Fray confirmed the integration of print and online workforces at the Fairfax publications in which he held senior positions. Mr Knaus' evidence, which was not challenged, was that his work at the Canberra Times and then The Guardian Australia was substantially the same, involving at both rolling deadlines and the multi-tasking required for online publication. Both workforces may be required to work around the clock and on weekends.

[45] As earlier stated, Nine submitted that the fact that online-only publications do not have a daily print deadline and do not have the opportunity to leverage off the associated publication's revenue and advertising sources was a justification for the exclusion, but this submission did not draw any logical connection between these differences and the exclusion of entitlements to overtime, shift and weekend penalties and meal breaks. It certainly cannot be said that there is some justification for the exclusion based on notions of capacity to pay; whilst online-only publications undoubtedly face commercial challenges, the evidence and material before us demonstrated that it is the print segment of the published media industry which faces a real threat to its future viability due to the transformative and disruptive changes described in paragraph [15] above and the evidence of Mr Fray.

[46] Because online publication is moving to become a major and perhaps the dominant segment of the published media industry, and the decline of print publications has been so significant and rapid that there is a real possibility that major print mastheads may move to online publication only at some time in the future, there is a danger that Part 5 of the Award, which contains a major part of the Award's operative provisions, will become increasingly irrelevant to the published media industry. It also offends the principle of regulatory neutrality that different sections of the industry are treated differently, and have a different employment cost structure imposed upon them, without there being any sustainable policy reason for this. What, it might be asked, is the rationale for having significantly inferior minimum conditions of employment applying to Nine's journalists employed at the 9NEWS website compared to Nine's journalists who work on the SMH website?

[47] The conclusion we have reached is that the presence of clause 4.10(a) in the Award means that it does not constitute a "fair and relevant minimum safety net of terms and conditions" as required by s 134(1). In reaching that conclusion we have taken into account the considerations in s 134(1) in the following way (using the paragraph designations in the provision):

(a) We do not regard this as a relevant consideration since there is no suggestion that journalists are low paid employees (leaving aside the position of cadet journalists).

(b) There is a minor possibility that the application of Part 5 of the Award to online-only publication might encourage collective bargaining, but this is not a matter to which we would assign any significant weight.

(c) Some of the employer witnesses suggested that removal of the exclusion in clause 4.10(a) might lead to less journalists being employed, but this was expressed in a highly contingent and speculative way. Ultimately we do not consider that workforce participation is an issue of relevance or weight.

(d) For the reasons already stated, nothing in Part 5 of the Award inhibits flexible modern work practices and the efficient and productive performance of work. This is therefore a consideration weighing against the continuation of the exclusion in clause 4.10(a).

(da) Employees at online-only publications receive no additional remuneration for working overtime, unsocial hours, weekends or shifts, in circumstances where working such hours is an expected and entrenched feature of their employment. There is no relevant distinction to be made in terms of the nature or value of the work, or the level of disability associated with working such hours between such employees and other employees who are covered by Part 5 of the Award.

(f) The removal of the exclusion in clause 4.10(a) will increase the regulatory burden for online-only publications, and is likely to increase employment costs with respect to at least some of their employees. This weighs against the removal of the exclusion, but the overall weight we assign to this is diminished because other types of publications already bear, and are capable of bearing, the regulatory cost and burden of the provisions of Part 5 of the Award and because, as we have previously observed, the provisions of Part 5 are minimalistic in nature. Having regard to the evidence of Ms Brunt, it is also possible that the application of Part 5 to online-only employers will increase productivity. The current lack of any requirement to pay any additional remuneration or benefit for overtime hours means there is a "culture" of staying back after ordinary hours to complete work, whereas an overtime requirement will establish an economic incentive for employers to ensure that work is completed as far as possible in ordinary hours.

(g) This consideration is generally neutral. The Award will be less complex and more sustainable if it applies equally to employers as far as is reasonable.

(h) We do not consider that the removal of the exclusion in clause 4.10(a) will have any discernible effect on employment growth, inflation and the sustainability, performance and competitiveness of the national economy. This is therefore a neutral consideration.

[48] None of the employers advanced any alternative framework of provisions concerning hours of employment, overtime, shift and weekend loadings/penalties or breaks which might be suitable for them instead of Part 5. It is clear that print publishers to whom Part 5 applies are able to efficiently and successfully publish online versions of their publications. Accordingly we consider that the course that is necessary to ensure that the modern awards objective is met is simply to delete clause 4.10(a) so that Part 5 of the Award applies to online-only publishers covered by the Award in the same way as it applies to other publishers covered by the Award.

[49] We accept the evidence of the DMA witnesses that the DMA, and likely other online-only publishers, will need considerable time to introduce systems and processes and make the necessary changes to workplace arrangements so as to comply with the requirements of Part 5 at minimal additional cost. Accordingly the removal of the exemption in clause 4.10(a) will not take effect until 12 months after the date of this decision. We do not, beyond that point, propose to "phase-in" the provisions of Part 5 as suggested in the submissions of the DMA. No practical proposal was advanced as to how this might be done, and we consider that the complexity of any "phase-in" applicable to Part 5 would outweigh any benefit it might bring.

[50] There remains the separate issue of removing references to "newspapers" in the Award and replacing them with a more generic reference to "news publications" that is inclusive of online publications. In principle, we consider this to be a good idea. However, we accept the submission of Rural Press that it creates problems for the definitions of the expressions "metropolitan daily", "regional daily" and "country non-daily" newspapers in clause 3.1 of the Award, which operate by reference to the area of distribution of their print editions. We do not consider that the alternative proposed by the MEAA whereby the definitions are modified to prescribe the content of such publications is appropriate, for the reasons advanced in Nine's submissions. We propose to allow interested parties a period of 21 days to file any further submissions they wish to make as to how this issue should be resolved, having regard to the conclusions we have expressed. After this we will publish draft determinations to give effect to our decision.

Exclusion of access to higher classifications at certain types of publications

[51] Clause 13.7 of the Award provides:

(a) by a country non-daily newspaper cannot be classified above Level 9; and

(b) by a regional daily newspaper, suburban newspaper or specialist publication cannot be classified above Level 10.

[52] The MEAA seeks the deletion of this clause. It submissions did not go beyond the bald proposition that the provision "unreasonably curtails an employer and employee's ability to appoint editorial employees at higher award levels". The MEAA called no evidence to support this aspect of its case. It was opposed by Rural Press, which made detailed submissions concerning the issue.

[53] We are not persuaded that clause 13.7 prevents the Award from achieving the modern awards objective. In an historical sense, it arises from the fact that the AIRC award modernisation Full Bench effectively amalgamated classification structures from different awards applying to different categories of newspapers when it made the Award. The clause likely reflects the fact that smaller newspapers and other publications have smaller workforces and tend to be less sophisticated in their editorial content, making access to the higher classifications unnecessary. Certainly the MEAA adduced no evidence to contradict this proposition. Because the Award sets minimum rates only, there is of course nothing to prevent an employer paying rates higher than that for the applicable maximum classification under the Award if it wishes to do so. There is no evidence to suggest that any employee at the prescribed types of publication is performing the work of the excluded higher classifications but is being denied the remuneration attaching to those classifications. Accordingly we see no reason to disturb the position established in the award modernisation process, and the MEAA's claim is rejected.

Weekend penalty rate/loading - country non-daily newspapers

[54] Clause 21.4 of the Award currently provides:

21.4 Subject to the provisions of this clause, an employee who is rostered to perform and performs ordinary hours on a shift where the greater part of the shift falls between the hours of midnight Friday and midnight Sunday will be paid an additional 10% of their ordinary rate for that shift. This subclause does not apply to employees employed in a country non-daily newspaper.

[55] The MEAA proposes that the clause be varied in the following manner:

21.4 Subject to the provisions of this clause, an employee who is rostered or required to perform and performs ordinary hours on a shift where the greater part of the shift falls between the hours of midnight Friday and midnight Sunday will be paid an additional 10% of their ordinary rate for that shift. This subclause does not apply to employees employed in a country non-daily newspaper.

[56] The MEAA adduced evidence from Ms Samantha Camarri, a photographer/journalist with the Wimmera Mail Times (WMT), to support its position. Ms Camarri gave evidence that the WMT was based in Horsham, Victoria and published three days each week, and she had worked with the WMT since 2011. She said that management had introduced the NewsNow system in 2015, which led to a reduction of five full-time positions in the news room, and had also moved to a "digital-first" model which required stories and photographs to be filed to the website for rolling deadlines throughout the day. This became standard for all non-daily newspapers run by Australian Community Media (Rural Press), which owns the WMT, and led to new stories being published at a far faster and more intense pace throughout the day.

[57] Ms Camarri said that 18 months after NewsNow was introduced, she was the only full-time photographer retained together with one part-time photographer, which required her to work the majority of weekends during the winter sport season as well as weekends in summer. She said she usually worked a 12-8pm shift in summer plus overtime, and in winter she worked 1-10pm on Saturdays and often worked Sundays as well if another journalist was on leave. The travel she is required to undertake meant she often does not have any breaks on weekends. The newsroom had recently moved to a seven-day rotating roster, which meant that the majority of staff now worked weekends at some point. She said they did not receive any additional compensation for weekend work because the WMT is categorised as a country non-daily newspaper under the Award. The Award's penalty rates schedule was incorporated into the enterprise agreement which covered WMT's journalists. Her weekend work meant that she had missed out on time socialising with family and friends at times they were off work, and she had missed many milestones in her family's and friends' lives. Much of her family was located in Brisbane, and it was impossible to see them during the year when rostered on weekend work. She also worked all public holidays except Christmas and Good Friday.

[58] Rural Press opposed the variations sought by the MEAA. It submitted that the MEAA had not discharged the onus to advance detailed evidence in support of the significant change which it sought. The weekend penalty rate which was sought to be extended to country non-daily newspapers was not present in the pre-modernisation award and absent from the Award in the form made by the Australian Industrial Relations Commission, which it may be presumed met the modern awards objective at that time. The matters required to be taken into account pursuant to s 134(1) did not support the change, and increasing the costs of weekend work would discourage flexible modern work practices and would not increase the efficient and productive performance of work. Rural Press submitted that s 134(1)(da)(iii) did not make it mandatory that an award provide additional remuneration for weekend work, and this factor should be seen against the profile of country non-daily newspaper production, in which a degree of weekend work for some employees was an inescapable norm which employers had a limited ability to avoid. Although Rural Press was covered by an enterprise agreement, the Fairfax Media - Journalists Country Non-Daily Newspapers Agreement 2017, as Ms Camarri observed in her evidence this agreement incorporated the Award except to the extent of any inconsistency with the result that the grant of the variation sought by the MEAA would immediately flow on to Rural Press country non-daily newspapers. Rural Press submitted that there was no evidence of any change in the disutility of any weekend work, and caution was required before making any variation which increases costs for employers in an environment where mastheads had downsized to remain viable.

[59] Rural Press called evidence from Mr Andrew Eales, who is employed by Rural Press as the Managing Editor, Victorian and South West NSW, for ACM. He said he had worked as a journalist and editor for 25 years, and in his current position oversaw 25 mastheads, which included five regional dailies and a number of non-daily mastheads. In his position he liaised with editors about a range of matters including staffing, and played an active role in recruitment and professional development and provided feedback to editors and journalists. He said that resourcing at non-daily mastheads had evolved considerably over the last ten years, with a focus on employing multi-skilled employees to align with audience consumption across digital and print platforms. Online browsers on ACM websites had grown by 100-700% in the past ten years, but this had not directly correlated with increased digital revenues, and at the same time print circulation and advertising revenue had been in decline. Workload at non-daily mastheads had changed, with staff on average producing fewer pieces of content per day because of smaller print editions and an emphasis on longer, deeper content with multiple media elements.

[60] Mr Eales said that most staff at the non-daily mastheads worked a shift from 8.30am to 5.06pm, and workloads could be met within rostered hours. However it was necessary to cover news, sporting and community events outside those hours. It was common for some non-daily masthead staff to work on weekends, as many mastheads had a Monday print edition with a Sunday afternoon or evening deadline, and this was not new or unique. Weekend staff coverage was planned and rostered to ensure that workloads were reasonable and employees had clarity as to their weekend responsibility. Rosters were prepared in conjunction with staff and posted weeks in advance, and staff requests for time off were endeavoured to be taken into account.

[61] Mr Eales gave evidence that the volume and style of content was significantly different as between non-daily and daily mastheads in his group. Larger regional centres had greater expectations regarding rolling digital coverage, which meant that deadlines were tighter on dailies and it was not uncommon for the newsroom to have editorial staff working from 6am to 10pm every day At non-daily mastheads, photographers and reporters only rarely worked both Saturday and Sunday on a single weekend, whereas this occurred regularly at daily mastheads. In cross-examination, Mr Eales accepted that there had been a substantial reduction in editorial staff across ACM in 2015.

[62] It is apparent that the exclusion of employees of country non-daily newspapers from the entitlement to the weekend penalty rate in clause 21.4 of the Award reflects the fact that, at the time the award modernisation process required by Part 10A of the Workplace Relations Act 1996 was conducted by the AIRC, such employees were covered by a discrete award, the Journalists (Country Non-Daily Newspapers) Award 1998, which did not contain any weekend penalty rate entitlement. This was distinct from the position applying in the separate awards applicable to metropolitan daily newspapers and country daily newspapers respectively, which contained the 10%weekend penalty currently found in clause 21.4 of the Award. The decisions of the AIRC award modernisation Full Bench which led to the making of the Award do not disclose any reasoned consideration of the exclusion of journalists on country non-daily regional newspapers from the weekend penalty rate entitlement which applies to all other newspaper journalists. Rather, it can be inferred that, consistent with the pragmatic approach which the AIRC Full Bench adopted of necessity,[18] it was simply accepted that the modern award to be made would reflect the status quo.

[63] As earlier stated in respect of the first issue, although it may be presumed that the Award met the modern awards objective at the time it was made, in light of the addition of s 134(1)(da) to the FW Act in 2013, it is necessary for specific reconsideration to be given to whether the Award meets the modern awards objective whilst containing the exclusion in clause 21.4.

[64] We have already dealt with the issue of the application of Part 5 of the Award in respect of online publications, and we deal with specialised publications below. Leaving these two categories aside, clause 21.4 provides an entitlement to a 10% loading or penalty rate for any shift the majority of which falls on Saturday or Sunday for all journalists except those employed by country non-daily newspapers. The position applies in a context where, in respect of employees to whom Part 5 applies:

• the ordinary hours of work for all employees, as prescribed by clause 19, are the same;

• clause 21.1 provides for what are, in substance, early morning shift and afternoon shift loadings of 10% for all employees; and

• clauses 21.2 provides for what is in substance a night shift loading of 17.5% for employees of a metropolitan daily newspaper, suburban newspaper, a magazine or a wire service, and 15% for employees of a regional daily newspaper or a country non-daily newspaper.

[65] Thus journalists employed by country non-daily newspapers may be required to work the same ordinary hours as other employees covered by Part 5, and are also entitled to additional remuneration for unsocial hours worked on early morning, afternoon and night shifts (albeit that they received a night shift loading which is slightly lower than for other employees except for employees of regional daily newspapers, for whom it is the same). This context indicates that the complete exclusion of employees of country non-daily employees from the weekend loading or penalty rate in clause 21.4 is anomalous and is not, on the face of the Award, rationally explicable.

[66] The evidence of Ms Camarri and Mr Eales demonstrates that weekend work is common, expected, planned and rostered for at least a proportion of employees of country non-daily newspapers. Ms Camarri's evidence demonstrates what we would in any event presume to be the case, namely that such employees suffer a level of disability associated with working on weekends, particularly in the form of the loss of opportunity to socialise and celebrate milestones with family and friends at a time when they are not required to work. There is no suggestion or reason to believe that the level of disability for such employees is any different to those employees entitled to additional remuneration under clause 21.4. This level of disability permits weekend work to be characterised as "unsocial" for the purpose of s 134(1)(da)(ii).

[67] Mr Eales identified some operational differences from his perspective between country non-daily newspapers and regional daily newspapers. It may be accepted that such differences exist, but none appear relevant to the performance of weekend work by employees. Mr Eales identified that employees on regional daily newspapers worked unsociable early morning, afternoon and night shift hours more frequently, but for that they are entitled to the loadings in clause 21.1 or 21.2, which apply equally to country non-daily newspapers. He also said that employees of regional daily newspapers work consecutive Saturdays and Sundays regularly, unlike employees of country non-daily newspapers for whom it is rare. However clause 21.4 compensates for this by applying the 10% loading on both days. This is to be compared to the situation described by Ms Camarri, who said she often worked both Saturday and Sunday during the winter sporting season but received no additional compensation whatsoever. We do not consider that Mr Eales' evidence discloses any justifiable rationale for the exclusion of employees of country non-daily newspapers from the entitlement in clause 21.4.

[68] By the standard of most modern awards, the weekend loading or penalty rate provided for in clause 21.4 is very low. We do not consider that the Award can be considered to constitute a fair and relevant safety net of terms and conditions whilst clause 21.4 entirely excludes employees of country non-daily newspapers from this very modest entitlement. The exclusion appears to us to arise from arbitrary differences in award history rather than any relevant contemporary rationale, and treats employees of country non-daily newspapers unfairly compared with other employees under the Award. We consider that it is necessary to remove the exclusion in order for the Award to meet the modern awards objective in s 134(1). In respect of the considerations required to be taken into account under s 134(1), we find as follows:

(1) Paragraphs (a)-(c), (e) and (h) we do not regard to be relevant.

(2) We do not consider that a requirement to pay employees of country non-daily newspapers the modest entitlement in clause 21.4 would, in respect of paragraph (d), affect flexible modern work practices and the efficient and productive performance of work. Such employees will continue to be required to and will continue to perform weekend work.

(3) The relevant parts of the consideration in paragraph (da) weigh heavily in favour of the conclusion we have reached, having regard to the matters discussed in paragraphs [64]-[67] above.

(4) In respect of paragraph (f), the removal of the exclusion in paragraph 21.4 will cause some additional and unavoidable employment cost for employers operating country non-daily newspapers. The evidence adduced by Rural Press did not attempt to quantify this cost. However the modest quantum of the entitlement, the reduction in employment numbers of journalists, and the lesser use of journalists on such newspapers compared to (at least) regional daily newspapers suggests that the cost will not be significant. Mr Eales' evidence indicated that some country non-daily newspapers face some challenge to their future viability, but the evidence does not suggest that they are any different in this respect to other newspapers facing the challenges of a loss of print circulation and the growth of online news publications.

(5) As to paragraph (g), we regard this as a neutral consideration. Although clause 21.4 will be varied to remove the exclusion, we do not consider this renders the modern award system unstable or unsustainable for country non-daily newspapers.

[69] We also consider it appropriate and necessary for clause 21.4 to be varied to clarify that it applies to all work required to be perform on weekends, not just work which is rostered to be performed on weekends. No interested party made a submission opposing this.

[70] For these reasons, clause 21.4 will be varied as proposed by the MEAA. The variation will take effect 12 months from the date of this decision in order to give time for country non-daily newspapers to prepare for the introduction of the weekend rate.

[71] We note that clause 21.5 provides:

21.5 The respective additional payments prescribed in this clause will not exceed the amount calculated based on the rate for:

(a) in the case of employees employed by a metropolitan daily newspaper or a magazine, wire service or regional daily newspaper - Level 8 employee;

(b) in the case of employees employed by a suburban newspaper - Level 3 employee; or

(c) in the case of any other employees - Level 6 employee.

[72] It is not clear to us whether clause 21.5 requires any adjustment consequential upon the variation to clause 21.4. We will provide interested parties a period of 21 days to make any submissions they wish to make about this before publishing a draft determination to give effect to this part of the decision.

[73] In relation to the second issue concerning specialist publications, clause 4.13 of the Award provides:

4.13 The only clause in Part 5 of this award that will have any application to employees employed by a specialist publication is clause 23 - Specialist publications.

[74] The expression "specialist publication" is defined in clause 3.1 as follows:

specialist publication means a publication published by an employer that employs 20 or fewer editorial employees other than a regional daily newspaper, country non-daily newspaper, suburban newspaper or metropolitan daily newspaper

23.1 The ordinary hours of duty for employees employed on specialist publications will be 38 hours a week which may be worked on any day of the week determined by the employer.

(a) Where an employee, other than a casual employee, is required to work in excess of 38 hours in any week, the employee will be entitled to time off for a period which is the same as the periods of overtime worked.

(b) This will be taken within six weeks of the end of the week in which the overtime was worked. The employer may determine when this time is taken off.

(c) If for any reason, this time off is not taken, the employee will be paid for such overtime at the rate of time and one half for the first eight hours overtime and at the rate of double time for all overtime in excess of eight hours in any week.

NOTE: This clause does not apply to specialist online publications. These are exempted from Part 5 - Hours of Work and Related Matters of the award by virtue of clause 4.10(a).

[76] The MEAA proposes that clause 4.13 and clause 23 be removed from the Award. It submitted that:

• the specialist publication provisions were no longer relevant or necessary, and were confusing and had no agreed industry usage;

• the definition of the expression "specialist publication" in clause 3.1, apart from the limitation in the number of employees, operated by omission, and did not define what a specialist publication was as compared to a "magazine" (a term used elsewhere in the Award which is not defined);

• the term "specialist publication" was not one in wide or common published media industry usage, and appears to encompass content marketing and custom publishing;

• the specialist publication provisions, where they operated, provided for inferior or no terms and conditions relating to hours of work, overtime, breaks and weekend penalties, and for online specialist publications made no provisions for these matters at all;

• the MEAA's assessment of the 412 respondents listed for the predecessor Journalist (Specialist Publications) Award 1997 showed that: 236 no longer had an active ABN; a number of the 176 titles and entities which retained an active ABN no longer produced any publications; a further 45 respondents could not be identified by a conventional web-search; and a number of titles previously produced by small-scale publishers were now produced by medium-to-large publishers with more than 20 employees; and

• the specialist publication sector, to the extent that any such sector is identifiable, appears to be dominated by a small number of large publishers which produce a wide range of titles.

[77] No person called any evidence or made any submissions contrary to the MEAA's position. There was no indication that there was any interested party which opposed the making of the award variations sought by the MEAA.

[78] We are satisfied, on the basis of the MEAA's submissions, that the modern awards objective in s 134(1) of the Award is not met if the specialist publication provisions are retained, for the following reasons:

(1) the term "specialist publication" is not defined in a way which permits a clear understanding of its scope, and in particular it is unclear who it related to the term "magazine" which is frequently used in the Award;

(2) there is nothing before us which suggest that the provisions have any continuing practical application;

(3) clause 23, to the extent that it applies to print specialist magazines (we have dealt with all forms of online publications earlier in this decision), does not provide an adequate safety net of terms and conditions of employment because it:

• permits ordinary hours to be worked at any time during any day of the week at the determination of the employer without any protections in terms of span of hours, shift work loadings, weekend penalties or the provision of rosters;

• makes no provision for any entitlement to breaks; and

• excludes casual employees from any entitlement to overtime regardless of the hours worked; and

(4) The effect of clause 4.13, although perhaps unintentional, is to exclude employees of specialist publications from the entitlement to request change in working arrangements under clause 23A.

[79] In reaching the above conclusion concerning the modern awards objective, we have placed particular weight upon the considerations in paragraphs (a), (da) and (g) of s 134(1). The other considerations we regard to be neutral.

[80] There is nothing before us to indicate any need to continue differential terms and conditions of employment for employees of "specialist publications". Accordingly the definition of that expression in clause 3.1, and clauses 4.13 and 23, will be removed from the Award. The date of effect will be 12 months from the date of this decision to align with the award variations concerning online publications.

[81] The third issue concerns exemptions from the coverage of the award of certain positions at news publications. Clause 4.9 provides in this respect:

4.9 The award does not cover employees employed in the following positions:

(a) editor, editor in chief and chief of staff of a metropolitan daily newspaper; and

(i) on a national metropolitan daily newspaper: six positions;

(ii) on any associated publication including an online publication: one position;

(i) on a metropolitan daily newspaper published in Victoria: 10 positions;

(ii) on its related Sunday newspaper: two positions;

(iii) on any other associated publication including an online publication: one position;

(i) on a metropolitan daily newspaper published in New South Wales: 10 positions;

(ii) on its related Sunday newspaper: two positions;

(iii) on any other associated publication including an online publication: one position;

(i) on a metropolitan daily newspaper published in Queensland: four positions;

(ii) on its related Sunday newspaper: two positions;

(iii) on any other associated publication including an online publication: one position;

(i) on a metropolitan daily newspaper published in South Australia: four positions;

(ii) on its related Sunday newspaper: two positions;

(iii) on any other associated publication including an online publication: one position;

(i) on a metropolitan daily newspaper published in Tasmania: three positions;

(ii) on any other associated publication including an online publication: one position;

(i) on a metropolitan daily newspaper published in Western Australia: five positions;

(ii) on a separately published metropolitan Sunday newspaper: three positions;

(iii) on any other associated publication including an online publication: one position;

(i) on a metropolitan daily newspaper published in the Northern Territory: one position;

(ii) on any other associated publication including an online publication: one position;

(i) on a metropolitan daily newspaper published in the Australian Capital Territory: four positions;

(ii) on a separately published metropolitan Sunday newspaper: one position;

(iii) on any other associated publication including an online publication: one position;

(k) in a magazine publishing business that employs more than 20 editorial employees:

(i) any employee (below the level of publisher) who has principal responsibility for the editorial aspect of more than one magazine published by the employer, including without limitation an editor in chief;

(ii) any employee (below the level of publisher) who has principal responsibility for the artistic aspect of more than one magazine published by the employer, including without limitation an art director;

(l) in a regional daily newspaper business, the editor and:

(i) the next most senior editorial employee employed in a regional daily newspaper published in Albury, Geelong or Launceston;

(ii) the next two most senior editorial employees employed in a regional daily newspaper published in Townsville;

(iii) the next three most senior editorial employees employed in a regional daily newspaper published on the Gold Coast;

(m) in an online publishing business (that is not an associated publication of a print publication) that employs more than 20 editorial employees:

(i) any employee (below the level of publisher) who has principal responsibility for the editorial or artistic aspect of more than one online publication published by the employer, including an editor in chief or art director;

(n) at Australian Associated Press: eleven positions.

[82] The substantive modifications to clause 4.9 proposed by the MEAA would, relevantly:

(1) add a new exemption (as paragraph (b), with the following paragraphs redesignated) for "employees who occupy senior managerial roles on an ongoing basis and are classified and paid not less than level 11 of this award";

(2) delete the exemptions relating to "any associated publication including an online publication" in the current (b)(ii), (c)(iii), (d)(iii), (e)(iii), (f)(iii), (g)(ii), (h)(iii), (i)(ii) and (j)(ii);

(3) in each case where an identified number of positions is exempted, the insertion of the words "up to";

(4) the deletion of the words "that employs more than 20 editorial employees" in current paragraph (k) and (mm); and

(5) the deletion of the words in parentheses in current paragraph (m) "(that is not an associated publication of a print publication)".

[83] The MEAA submitted that:

• it was necessary to ensure that senior employees exempted from Award coverage by clause 4.9 occupied ongoing managerial positions within media companies;

• a monetary or grading threshold should apply to exempt positions;

• there ought not be special exemptions only applicable to online publishing businesses which are not associated online publications; and

• there was no justification for the magazine or online publishing business exemptions to apply only where there were more than 20 editorial employees.

[84] It is apparent to us that there are two significant problems with clause 4.9 which extend beyond the issues raised by the MEAA. We raised these problems with the parties at the hearing which occurred on 8 August 2019. The first is that the effect of the clause is to make differentiations in coverage as between the various States and Territories. Thus, for example, the number of exempted positions in a metropolitan daily newspaper in addition to the editor, editor in chief and chief of staff is ten in New South Wales and Victoria, five in Western Australia, four in Queensland, South Australia and the ACT, three in Tasmania and one in the Northern Territory. We consider these to be "State-based difference terms" which are prohibited by s 154(1)(a) of the FW Act. Section 154(1) provides:

General rule--State-based difference terms must not be included

(1) A modern award must not include terms and conditions of employment (State-based difference terms) that:

(a) are determined by reference to State or Territory boundaries; or

(b) are expressed to operate in one or more, but not every, State and Territory.

[85] After we raised this issue with the parties, Rural Press and Nine Entertainment (in written submissions dated 27 August 2019) submitted that clause 4.9 did not offend s 154 because they were coverage provisions only and did not deal with "terms and conditions of employment" that were determined by reference to State boundaries. We reject that submission. In 4 yearly review of modern awards - Proposed Norfolk Island Award,[19] the Full Bench held that a coverage term of a modern award that effected State-based differences in coverage would contravene s 154(1) because coverage terms of an award are determinative of whether any of the terms and conditions in an award apply to an employee and, in any event, the better view was that a coverage term is a term and condition of employment for the purposes of s 154(1).[20] Accordingly we conclude that clause 4.9 in its current form is prohibited by s 154(1).

[86] The second significant problem is that clause 4.9 is arbitrary, indiscriminate and uncertain in its effect. Its apparent purpose is to exempt from the coverage of the Award senior journalists who are involved in editorial and/or management functions for a publication. However that is not what it does. The exemptions from coverage in paragraphs (b), (c), (d), (e), (f), (g), (h), (i), (j), (k)(iv) and (n) operate by reference simply to arbitrary numbers of positions without any criteria as to their classification, function or remuneration. We assume it was intended that the employer would have the right to select which positions are to fall within the specified number of exemptions, although clause 4.9 does not actually say this and is uncertain in its operation to this extent. If our assumption is correct, the clause would appear to permit the employer to select any position that would otherwise be covered by the Award for exemption, regardless of the position's duties and responsibilities or rates of pay. In this respect, we do not consider that the Award meets the modern awards objective in s 134(1) of providing a fair and relevant safety net of terms and conditions since its allows employees to be excluded from the operation of the safety net in an entirely arbitrary manner. In reaching this conclusion we place particular weight on the considerations in paragraph (g) of s 134(1); the other considerations are of little if any relevance.

[87] The variations to clause 4.9 proposed by the MEAA do not address these problems except, perhaps, the proposed new paragraph (b). Rural Press and Nine Entertainment proposed that clause 4.9 be varied to read:

(a) employees employed as editor, editor in chief and chief of staff of a metropolitan daily newspaper; and

(b) employees who occupy positions with an annual salary greater than the level 11 rate of pay, and who the employer (acting reasonably) determines are employees who have the appropriate experience, skill or capability to provide leadership to a section or function; or to assume the responsibility of editor if required.

[88] We accept, on the basis of the very detailed and helpful analysis of the industrial history contained in the MEAA's written submissions of 2 May 2019, that journalists who perform senior editorial and/or management functions in a news publication have traditionally been exempted from award coverage. Section 143(7)(a) of the FW Act provides that a modern award must not be expressed to cover classes of employees "...who, because of the nature or seniority of their role, have traditionally not been covered by awards...". Accordingly it is necessary to retain an exemption provision which gives effect to the traditional position, but at the same time the provision must not offend s 154(1) and must not operate in an arbitrary or uncertain way that does not permit the achievement of the modern awards objective.

[89] There is a consensus that clause 4.9(a) may be retained, and we consider that to be appropriate since it does not suffer from the problems we have identified. We consider that the necessary exemption provision should also exempt other employees on a basis referable both to their remuneration and function. The MEAA, Rural Press and Nine Entertainment appear to agree that the salary amount for a Level 11 employee under the Award (currently $1424.20 per week) represents a suitable benchmark. However they disagree as to the functional criteria. The MEAA's proposed new paragraph (b) refers to senior management roles, while the Rural Press and Nine Entertainment proposal appear to focus on the characteristics of the employee.

[90] The statement of Mr Lavelle, the editor of The Age newspaper, to which we have earlier referred sets out the ten positions at that publication which are identified for the purpose of clause 4.9(c) as exempt from the Award together with a description of the duties of those positions. The positions are, apart from Editor (which is dealt with by clause 4.9(a)): Deputy Editor Print, News Director, News Editor, Production Editor, Weekday Print Editor, Video Editor, Photographic Editor, Managing Editor Sport, Business Day Editor, and the Editor on any associated publication. This evidence usefully provided us with a practical guide to the construction of a new provision to replace clause 4.9. We have also been guided by the evidence of Chad Watson, Managing Editor, NSW Central for ACM, who described the position pertaining at regional daily newspapers and country non-daily newspapers within his managerial purview.

[91] Our provisional view is that clause 4.9 should be varied to provide as follows:

(a) employees employed as editor, editor in chief and chief of staff of a metropolitan news publication; and

(b) employees who occupy positions with an annual salary greater than the level 11 rate of pay and which involve the exercise of significant editorial, artistic or managerial control or direction within a publication.

[92] We consider that the above provision, as drafted, would encompass the positions identified in Mr Lavelle's and Mr Watson's evidence.

[93] We will provide parties with 21 days from the date of this decision to file any written submissions they wish to make in response to this provisional view.

M Chesher for the Media, Entertainment and Arts Alliance.

S Crilly on behalf of Rural Press and Nine Entertainment Co. Pty Ltd.

[1] See Alpine Resorts Award 2010 [2018] FWCFB 4984 at [52]

[2] Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161, 253 FCR 368, 272 IR 88 at [38]

[3] Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480, 205 FCR 227, 219 IR 382 at [35]

[4] Penalty Rates Decision [2017] FWCFB 1001, 265 IR 1 at [128]; Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161, 253 FCR 368, 272 IR 88 at [41]- [44]

[5] Re Annual Wage Review 2017-2018 [2018] FWCFB 3500, 279 IR 215 at [21]- [24]

[6] Edwards v Giudice [1999] FCA 1836, 94 FCR 561 at [5]; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121 at [81]- [84]; National Retail Association v Fair Work Commission [2014] FCAFC 118, 225 FCR 154, 244 IR 461 at [56]

[7] Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161, 253 FCR 368, 272 IR 88 at [33]

[8] National Retail Association v Fair Work Commission [2014] FCAFC 118, 225 FCR 154 at [105]- [106]

[9] Ibid at [109]-[110]; albeit the Court was considering a different statutory context, this observation is applicable to the Commission's task in the Review

[10] Ibid at [28]-[29]; Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161, 253 FCR 368, 272 IR 88 at [49]

[11] Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161, 253 FCR 368, 272 IR 88 at [48]

[12] CFMEU v Anglo American Metallurgical Coal Pty Ltd [2017] FCAFC 123, 252 FCR 337 at [23]; cited with approval in Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161, 253 FCR 368, 272 IR 88 at [45]

[13] See generally: Shop, Distributive and Allied Employees Association v National Retail Association (No.2) [2012] FCA 480, 205 FCR 227, 219 IR 382

[15] Fair Work Amendment Act 2013

[16] 4 yearly review of modern awards - General Retail Industry Award 2010 [2018] FWCFB 5897 at [14]

[17] [2009] AIRCFB 450

[18] See Application by United Voice and the Australian Education Union [2018] FWCFB 177, 274 IR 1 at [42]

[19] [2018] FWCFB 4732, 281 IR 281 at [19]- [23]

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