Fair Work Act 2009

s.156 - 4 yearly review of modern awards

Journalists Published Media Award 2010 - substantive issues.

[1] On 20 November 2019 we published a decision[1] (November decision) which dealt with a number of variations to the Journalists Published Media Award 2010 (Award) proposed by the Media, Entertainment and Arts Alliance (MEAA) as part of the 4 yearly review of modern awards. In respect of two matters, we expressed provisional views and invited parties to make additional submissions. This decision is intended to finalise these outstanding matters so that draft determinations giving effect to the November decision may be published for comment.

[2] The first matter arises from paragraph [45] of the November decision, in which we adverted to the fact that, as a result of our decision to remove the exclusion of online news publication from Part 4 of the Award, we perceived there would need to be a modification to references to "newspapers" in the Award. However MEAA's proposal to change all such references to "news publications" was seen by us to be potentially problematic because the definitions of the expressions "metropolitan daily", "regional daily" and "country non-daily" newspapers in clause 3.1 of the Award, operate by reference to the area of distribution of their print editions. We therefore invited further submissions about this issue. The second matter was that, in paragraph [86] of the November decision, we proposed a reformulated version of clause 4.9 of the Award, which currently exempts from the Award's coverage certain positions in different categories of publication.

[3] In response to the invitation to make further submissions, the Commission received submissions from the MEAA, Nine Entertainment Co Pty Ltd (Nine) and Dailymail.com Australia Pty Ltd (DMA). In relation to the second issue concerning the proposed new clause 4.9, no party raised any issue of substance. The only issue raised was a drafting one concerning the reference in the proposed clause 4.9(a) to "metropolitan news publication", which relates to the first matter concerning MEAA's proposal to have the expression "news publication" replace existing reference to "newspapers". That drafting issue is dealt with below, but subject to that we will proceed with the provisional view concerning the reformulation of clause 4.9.

[4] In respect of the first matter, the MEAA submitted that, to accommodate the replacement of references to "newspapers" with "news publications", the definition of "metropolitan daily newspaper" could be altered to read:

"metropolitan daily news publication means a news publication published Monday to Sunday or published only on a Sunday and which is principally distributed within the metropolitan area of one or more capital cities or the metropolitan areas of Newcastle or Wollongong."

[5] We presume that the MEAA intends that there would be equivalent alterations to the definitions of "regional daily newspaper" and "country non-daily newspaper". The MEAA also proposed that a definition of "news publication" be added as follows:

"News publication means a publication concerned with the dissemination of news content published in print and/or digital form."

[6] Nine submitted that it was not necessary to replace "newspapers" with "news publications"; instead, it proposed a new definition of "digital publication" to capture those publications which are currently not subject to Part 5 of the Award due to clause 4.10(a). This definition would read:

"digital publication means an online publication, other than an online publication which is an associated publication of a print publication (such as a metropolitan daily newspaper or a regional daily newspaper)."

[7] This expression, it was submitted, could be added to the small number of Award provisions such as clauses 10.3(c), 21.2 and 24.2 which apply in different ways to various types of publications, and would be the simplest way to fill the gap created by the extension of Part 5 of the Award to online-only publications.

[8] Consistent with this approach, Nine submitted that the variation to clause 4.9 of the Award proposed in paragraph [86] of the November decision should refer (in paragraph (a)) to a "metropolitan daily newspaper", not a "metropolitan daily news publication".

[9] DMA submitted that there should be no change to the definitions of "metropolitan daily newspaper", "regional daily newspaper" and "country non-daily newspaper", since this was unnecessary and the definitions made little sense when used to describe online-only publications. It submitted that where particular provisions in Part 5 of the Award distinguish between the different types of newspaper, a reference to online-only publications should be added on the basis that they would be treated equivalently to country non-daily newspapers.

[10] We accept the submission of DMA that defining online-only publications by reference to geographic distribution areas makes little sense. For that reason, we reject the MEAA proposal, and we are minded to depart from the provisional view expressed in the November decision. We will instead adopt a position consistent with the submissions advanced by Nine and DMA, which will involve a specific reference to online-only publications being added where necessary in respect of provisions which provide differential entitlements to different categories of publication. This will be done on the basis that employees of online-only publications will receive the "default" entitlement or, where there is no "default" entitlement, will generally be treated equivalently to the position applying to the majority of publication categories. To that end:

(1) Clause 3.1 shall be varied to include the definition of "digital publication" proposed by Nine.

(2) The proposed variation to clause 4.9 shall be altered 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 which involve the exercise of significant editorial, artistic or managerial control or direction within a publication.

(iii) in the case of employees employed by a magazine, regional daily newspaper, suburban newspaper, country non-daily newspaper or digital publication, 7.5 hours in a day.

(b) regional daily newspaper, country non-daily newspaper or digital publication - 15%,

(a) engaged by a metropolitan daily newspaper, wire service, regional daily newspaper, suburban newspaper, magazine or digital publication, will be credited each year with an extra two weeks and three days' annual leave; or

[11] We note the submission made by MEAA that, in the November decision, we failed to deal with a proposal advanced by it to vary the definition of "editorial employee" in clause 3.1 that is intended to pick up additional functions in online publications. Given that the Award already applies to online publications, we do not consider that it is necessary to vary the definition in circumstances where the evidence has not disclosed any current definitional difficulty in the application of the Award to employees of online publications. The MEAA also submitted that we had failed to deal with the case advanced by it to extend the shift penalties provided for in clause 21.2 and the additional leave entitlements provided for in clause 24.2 to all editorial employees. The submissions made by the MEAA in relation to these matters were so minimal that we had not perceived that any such case was being advanced. Nothing has been added by the MEAA's further submissions. We are not persuaded that the changes sought should be made. Clause 21.2 and 24.2 shall be varied in the terms identified above.

[12] A draft determination to give effect to the November decision and this decision is at Attachment A. Parties have the opportunity to make submissions within 21 days concerning any technical or drafting matters before we make a final variation determination.

Fair Work Act 2009

s.156 - 4 yearly review of modern awards

4 yearly review of modern awards - Journalists Published Media Award 2010 - substantive issues - modern award varied.

A. Further to the Full Bench decisions issued by the Fair Work Commission on 20 November 2019 [[ 2019] FWCFB 7603] and 30 March 2020 [ [2020] FWCFB 1695], the above award is varied as follows:

1. By inserting the following definition in clause 3.1 in alphabetical order:

"digital publication means an online publication, other than an online publication which is an associated publication of a print publication (such as a metropolitan daily newspaper or a regional daily newspaper)."

2. By deleting the definition of "specialist publication" in clause 3.1.

3. By deleting clause 4.9 and inserting the following:

(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 which involve the exercise of significant editorial, artistic or managerial control or direction within a publication.

4. By deleting clause 4.10 and inserting the following:

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

6. By deleting clause 10.3(c)(iii) and inserting the following:

(iii) in the case of employees employed by a magazine, regional daily newspaper, suburban newspaper, country non-daily newspaper or digital publication, 7.5 hours in a day.

7. By deleting clause 21.2(b) and inserting the following:

(b) regional daily newspaper, country non-daily newspaper or digital publication - 15%,

8. By deleting clause 21.4 and inserting the following:

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.

9. By deleting clause 23 - Specialist publications.

11. By deleting clause 24.2(a) and inserting the following:

(a) engaged by a metropolitan daily newspaper, wire service, regional daily newspaper, suburban newspaper, magazine or digital publication, will be credited each year with an extra two weeks and three days' annual leave; or

12. By updating the table of contents and cross-references accordingly.

B. This determination comes into operation on [XX MONTH YEAR]. In accordance with s.165(3) of the Fair Work Act 2009, this determination does not take effect until the start of the first full pay period that starts on or after [XX MONTH YEAR].

Printed by authority of the Commonwealth Government Printer

[1] [2019] FWCFB 7603

Printed by authority of the Commonwealth Government Printer