Fair Work Act 2009

s.160 - Variation of modern award to remove ambiguity or uncertainty or correct error

Section 160 of the Fair Work Act 2009 (Cth) - Commission acting on its own initiative - Journalists Published Media Award 2020 - draft determination.

• [1] As part of the 4 yearly review of modern awards (Review), a Full Bench (substantive issues Full Bench) was constituted to deal with substantive matters in the Journalists Published Media Award 2010 (Journalists Award 2010) in AM2018/24.

[2] The Full Bench issued decisions on 20 November 2019[1] (November 2019 decision) and 30 March 2020[2] (March 2020 decision) in respect of those substantive matters. A draft determination setting out the Full Bench's provisional views accompanied the March 2020 decision.

[3] On 30 April 2020 a separate Full Bench finalised the technical and drafting matters in the Journalists Award 2010 in AM2019/17. A determination[3] varying and renaming the Journalists Award 2010 as the Journalists Published Media Award 2020 (Journalists Award 2020) was published and became operative on 18 June 2020.

[4] On 20 November 2020 the substantive issues Full Bench issued a decision (November 2020 decision)[4] and a final determination[5] varying the Journalists Award 2020 to give effect to the November 2019 decision and the March 2020 decision. It was stated in the November 2020 decision that this concluded the 4 yearly review in respect of the Journalists Award 2020.[6]

• [5] However, since the conclusion of the Review in respect of the Journalists Award 2020, it has come to my attention that a number of issues require further consideration. In broad terms, these are:

1. A number of penalty rates set out in clauses A.1.6, A.1.8, A.2.3 and A.2.5 of Schedule A appear inconsistent with clause 11.7, which sets a limit on the highest level of classification of certain employees.

2. Clauses A.1.4 and A.3.2 of Schedule A, which set out overtime rates, include columns of rates for "Ordinary hours" and "Public holiday". These rates are mischaracterised as overtime rates and are also redundant because they reproduce the rates already set out in clauses A.1.3 and A.3.1 respectively.

3. The distant engagement overtime rates appearing in clauses A.1.4 and A.3.2 of Schedule A do not appear to reflect the limitation of that entitlement to certain types of publications outlined in clause 18.8(a).

4. A reference to "specialist publication" appears to have been inadvertently retained at clause 11.7(b).

5. The maximum rate caps set out in clause 19.5 appear to be expressed in a way that causes ambiguity with respect to the calculation of shiftwork rates in clauses 19.1 and 19.2.

6. Certain hourly rates of pay for shiftwork and weekend shiftwork in clauses A.1.8 and A.2.5 of Schedule A for digital publication employees appear to be inconsistent with the loading caps prescribed by clause 19.5.

7. The weekend shift rate for employees in country non-daily newspaper publications appears to have been inadvertently omitted from clauses A.1.8, A.2.5 and A.3.5 of Schedule A.

8. There appears to be an inconsistency in the expression of penalty rates for weekend work in several tables in Schedule A as compared to clause 19. The tables in question express penalty rates for "Weekend" work for non-shiftworkers as 120 percent of the ordinary hourly rate (based on 10 percent loading in cl 19.1 and 10 percent loading in cl 19.4), but it may be the case that employees could work shifts on weekends that attract only the 10 percent loading under cl 19.4.

9_._ The penalty rates set out for employees "other than shiftworkers" in clauses A.1.5-A.1.7, A.2.2-A.2.4 and A.3.3 of Schedule A appear to be shiftwork rates and the reference to "other than shiftworkers" may constitute an error.

10. The early/late work rates (and associated weekend rate) for regional daily full/part-time and casual newspaper employees are not presented separately in Schedule A and are consequently subsumed in the "penalty rates" table presented for all "All other publication employees" at clauses A.1.7 and A.2.4. However, due to the difference in loading caps between publications under clause 19.5, these rates may be in error for a regional daily employee after Level 6.

• [6] Given the conclusion of the Review with respect to the Journalists Award 2020, the Commission has determined to create a new matter on the Commission's own initiative under s.160(2)(a) of the Fair Work Act 2009 (the Act) to deal with the above issues.

• [7] Section 160 of the Act provides:

160 Variation of modern award to remove ambiguity or uncertainty or correct error

(1) The FWC may make a determination varying a modern award to remove an ambiguity or uncertainty or to correct an error.

(b) on application by an employer, employee, organisation or outworker entity that is covered by the modern award; or

(c) on application by an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award; or

(d) if the modern award includes outworker terms--on application by an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the outworker terms relate.

• [8] The principles applicable to the interpretation and application of s 160 are well established. It is first necessary to determine if the provisions sought to be varied are ambiguous or uncertain. Such a conclusion usually requires there to be rival contentions and an arguable case for one of the contentions. The words "ambiguous" and "uncertain" are not synonyms. Uncertainty may also be established even if the provisions at issue have a clear meaning and are not ambiguous, since uncertainty may arise from the application of unambiguous terms to a given set of circumstances. Error will be shown if some sort of mistake is shown, in that a provision of the award was made in a form which did not reflect the tribunal's intention. It is only if ambiguity, uncertainty or error is found that a variation to remedy this may be considered.[7]

• [9] I now turn to address each of the provisions identified at paragraph [5] above.

1. Inconsistency between "penalty rate" tables in Schedule A and clause 11.7

• [10] A potential inconsistency has been identified between clause 11.7 of the Journalists Award 2020 and the tables in clauses A.1.6, A.1.8, A.2.3 and A.2.5 of Schedule A.

(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.

• [12] Clauses A.1.6 and A.2.3 set out "penalty rates" (which appears to be a misnomer) for suburban newspaper employees for employees up to Level 11 but exclude Level 10 (in accordance with clause 4.9(a)(ii) which exempts the operation of Parts 3 and 5 for Level 10 suburban newspaper employees). The inclusion of "penalty rates" at Level 11 in clauses A.1.6 and A.2.3 appears to be inconsistent with clause 11.7(b), which prescribes that Level 10 is the highest classification for an editorial employee of a suburban newspaper.

• [13] Clauses A.1.8 and A.2.5 set out the shift and weekend shift "penalty rates" for regional daily and digital publication shiftworker employees up to Level 11. Clauses A.1.8 and A.2.5 also set out shift "penalty rates" for country non-daily shiftworker employees up to Level 11 (excluding country non-daily employees at Level 9, who are exempted from Part 3 and Part 5 of the award as per clause 4.9(a)(iii)). Inconsistency arises here in that clause 11.7(b) prescribes that Level 10 is the highest classification for an editorial employee in a regional daily newspaper. Further, clause 11.7(a) prescribes that Level 9 is the highest classification for an editorial employee in a country non-daily newspaper.

• [14] I consider that including pay rates for classifications that are not permitted under the award creates ambiguity or uncertainty for the purposes of s 160.

• [15] Clause 11.7(b) refers to editorial employees employed "by a regional daily newspaper, suburban newspaper or specialist publication" only. It does not restrict the classification of editorial employees employed by digital publications. Therefore, as clauses A.1.8 and A.2.5 set out the shift "penalty rates" and weekend shift "penalty rates" for regional daily or digital publication employees together, it would not be appropriate to simply remove the rates for Level 11 in these clauses.

• [16] In light of the above it is my provisional view that the following amendments be made to Schedule A:

(i) Clauses A.1.6 and A.2.3 be amended to remove the rates for a Level 11 employee;

(ii) The heading of the columns in clauses A.1.8 and A.2.5 setting out shift and weekend shift rates for "Regional daily or digital publication" employees be amended to refer to regional daily employees only.

(iii) Clauses A.1.8 and A.2.5 be amended to remove the rates for a Level 11 regional daily employee;

(iv) Clauses A.1.8 and A.2.5 be amended to remove the rates for Level 10 and Level 11 country non-daily employees.

• [17] In addition, I propose that in clauses A.1.8 and A.2.5 the shift rates for digital publication employees should be set out under the shift rates for country non-daily employees. The reason for this will be apparent following my consideration of issue 6 (in relation to the impact of clause 19.5 on digital publication employee shift rates).

• [18] I also note that clauses A.1.3 and A.2.1 both set out ordinary and public holiday rates, and clause A.1.4 sets out overtime rates, all of which may be subject to the classification limitation set by clause 11.7. However there is no reference in any of these clauses to clause 11.7. I consider that this gives rise to ambiguity or uncertainty for the purpose of s.160.

• [19] It is my provisional view that a note should be inserted under each of the tables at clauses A.1.3, A.1.4 and A.2.1 to state that the classification of editorial employees is limited in accordance with clause 11.7. A more specific footnote can be made next to the relevant classification level in the tables at clauses A.1.6, A.1.8, A.2.3 and A.2.5 to indicate the level of that type of publication above which editorial employees cannot be classified.

2. Inclusion of the ordinary hours and holiday rate as overtime

• [20] The tables at clause A.1.4 and clause A.3.2 of Schedule A set out the overtime rates in the award as applicable to full/part-time employees and cadets, respectively. The table contains a 100 percent rate for "Ordinary hours" and a 250 percent rate for "Public holiday", among other rates. I consider the inclusion of both these rates as overtime a mischaracterisation, and hence, an error for the purposes of s 160.

• [21] The provisions for the ordinary hours of work are contained in clause 12 and, for obvious reasons, are distinct from overtime.

• [22] In relation to public holidays, those entitlements are contained in Part 6 at clause 25 which provides:

An employee required to work on a public holiday or a substitute day as provided for in the NES or clause 25.4:

(a) will be paid at ordinary rates and provided with a day off instead; or

(b) paid 250% of the ordinary hourly rate, with a minimum payment of 4 hours.

• [23] The provisions for overtime come from Part 5 of the Award under clause 18.[8] The relevant provisions of this clause, in relation to the overtime rates presented in clauses A.1.4 and A.3.2, are:

18.2 Daily overtime means all time necessary to be worked outside of an employee's rostered hours of duty, except for time worked on a rostered day off.

18.3 Daily overtime will be compensated in the following manner:

(e) where mutually agreed, overtime may be paid as it is worked at the rate of 150% of the ordinary hourly rate for the first 2 hours and 200% of the ordinary hourly rate after 2 hours; and...

(a) Notwithstanding the above, overtime for employees employed in a metropolitan newspaper, wire service or a magazine on a distant engagement will be governed by clause 18.8.

(b) Distant engagement means an assignment requiring an employee to spend one or more nights away from the location where they are regularly employed (the place of origin), and on which the employee has at least 6 hours rest each night.

(d) Calculation of ordinary hours of work, overtime, shift penalty rates and treatment of days off on a distant engagement

(vi) All overtime worked on a distant engagement will be either allowed as time off instead (at the rate of hour for hour), or paid at the rate of 150% of the ordinary hourly rate for the first 8 hours and 200% of the ordinary hourly rate after 8 hours as determined by the employer.

(vii) If an employee is called upon to resume duty within 12 hours of completion of a distant engagement, overtime will be paid at the rate of 150% of the ordinary hourly rate for all work done before the expiration of the 12 hour break.

• [24] The rate for working on a public holiday is a penalty rate and paid at 250 percent of the ordinary hourly rate. There is no mention of public holidays in clause 18, suggesting that an employee working overtime on a public holiday will simply be entitled to the higher rate, that being the 250 percent public holiday penalty rate.

• [25] Clauses A.1.3 and A.3.1 appropriately set out the "Ordinary hours" and "Public holiday" rates for full-time and part-time employees and cadets, respectively, under the clause heading "ordinary and public holiday rates". These rates are the same as the "Ordinary hours" and "Public holiday" rates characterised as overtime in clauses A.1.4 and A.3.2.

• [26] It is my provisional view that the "Ordinary hours" and "Public holiday" rates presented in the overtime tables at clauses A.1.4 and A.3.2 should be removed. I consider the "Public holiday" rate to be better characterised as a penalty rate rather than overtime. Both the "Ordinary hours" and "Public holiday" rates are already set out in clauses A.1.3 and A.3.1, where they are more appropriately situated.

3. Distant engagement overtime rates in clauses A.1.4 and A.3.2

• [27] A further issue has been identified in the tables containing overtime rates at clauses A.1.4 and A.3.2 of Schedule A with regard to the distant engagement rates.

• [28] The table in clause A.1.4 contains a column setting out the overtime rates for full/part-time employees assigned on a distant engagement with a percentage of 150 percent applying for the first 8 hours and 200 percent after 8 hours. Clause A.3.2 does likewise in respect of cadets. Both clauses indicate that the distant engagement overtime rates are the same for each day of the week, Monday to Sunday.

• [29] The provisions for distant engagement come from clause 18.8, an extract of which appears in issue 2 at [26] above. In particular, clause 18.8(a) provides:

(a) Notwithstanding the above, overtime for employees employed in a metropolitan newspaper, wire service or a magazine on a distant engagement will be governed by clause 18.8.

• [30] As per clause 18.8(a), the special overtime rates for distant engagement apply only to employees employed in a metropolitan newspaper, wire service or a magazine. Without further specification, it is my view that the overtime rates for distant engagement as currently prescribed in clauses A.1.4 and A.3.2 are in error.

• [31] It is my provisional view that the distant engagement overtime rates in clause A.1.4 and A.3.2 should be specified as applying only to the employees noted in clause 18.8(a), by inserting the following footnote next to the "Distant engagement: Monday to Sunday" column heading:

Metropolitan newspaper, wire service or magazine employees only; see clause 18.8(a).

4. Reference to "specialist publication" in clause 11.7(b)

• [32] In the November 2019 decision the substantive issues Full Bench stated that it was satisfied that the modern awards objective would not be met if the provisions for a specialist publication were retained. As such, the references to "specialist publication" in clauses 3.1, 4.13 and 23 of the Journalists Award 2010 were to be removed.[9] However, the reference to "specialist publication" at clause 13.7 of the Journalists Award 2010 (clause 11.7(b) in the Journalists Award 2020) appears to have been inadvertently overlooked.

• [33] Given the removal of the provisions related to "specialist publications" elsewhere in the Journalists Award 2020 following the November 2019 decision, the reference to the term at clause 11.7(b) is an anomaly. I consider that retaining the term in clause 11.7(b) in the Journalists Award 2020 constitutes an error for the purpose of s.160.

• [34] It is my provisional view that clause 11.7(b) should be amended to remove the reference to "specialist publication" as follows:

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

• [35] It has also come to my attention that an anomaly arises in clause 19 in the expressed calculation of shiftwork rates.

• [36] Clause 19.1 of the Journalists Award 2020 provides:

19.1 Subject to the provisions of clause 19, an employee who is instructed by the employer to perform and performs ordinary hours on a shift will be entitled to be paid 110% of the ordinary hourly rate for all ordinary hours worked on a shift:

(a) any part of which falls between the hours of 6.00 am and 7.00 am, or

(b) that concludes between the hours of 6.00 pm and 8.30 pm.

19.2 Subject to the provisions of clause 19, an employee who is instructed by the employer to perform and performs ordinary hours on a shift, any part of which falls between the hours of 8.30 pm and 6.00 am, will be entitled to the following rates for all ordinary hours worked on that shift:

Metropolitan daily newspaper, suburban newspaper, a magazine or a wire service

Regional daily newspaper, country non-daily newspaper or digital publication

• [38] Clause 19.4 provides for an additional "10% of the ordinary hourly rate" for weekend work as follows:

Subject to the provisions of clause 19, 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 hourly rate for that shift.

19.5 The rates prescribed in clause 19 will not exceed the amount calculated based on the rate for:

(a) in the case of employees employed by 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.

• [40] Read strictly literally, the reference in clause 19.5 to "the rates prescribed in clause 19" is to "110% of the ordinary hourly rate" in clause 19.1, 117.5 percent or 115 percent "of [the] ordinary hourly rate" in clause 19.2 and "an additional 10% of [the] ordinary hourly rate" in clause 19.4, as these are the rates prescribed in the clause. If read this way, it would follow that the total hourly rates of pay for employees the subject of shiftwork rates prescribed by clauses 19.1 or 19.2 could not exceed the total rate of pay (the ordinary hourly rate plus the additional shiftwork component) for the relevant classifications specified in clauses 19.5(a)-(c). This is because the shift rates in clauses 19.1 and 19.2 are expressed to include both the ordinary hourly rate and the additional shiftwork component. For example, the total rate of pay for a regional daily newspaper employee at Level 10 could not exceed 115 percent of the Level 8 ordinary hourly rate when working ordinary hours on a shift worked in accordance with clause 19.2. That would result in a rate of $38.54 per hour (assuming that no all-purpose allowances otherwise apply).

• [41] However, it does not appear that this is the intended outcome of the clause. The shift rates set out in Schedule A of the award are calculated on the presumption that the "rate" which cannot be exceeded is the shiftwork component alone (i.e. 10 percent of the ordinary hourly rate for the purposes of clause 19.1, and 15 percent or 17.5 percent of the ordinary hourly rate for the purposes of clause 19.2). So, in the example just given, a Level 10 employee at a regional daily newspaper would receive the Level 10 ordinary hourly rate plus 15 percent of the Level 8 ordinary hourly rate, resulting in a total hourly rate of $43.00. This is the rate that actually appears in clause A.1.8 of Schedule A.

• [42] Prior to its consolidation, the Journalists Award 2010 expressed the shiftwork component as an additional percentage amount which did not include the ordinary hourly rate. The equivalent shiftwork rates were in clauses 21.1 and 21.2 which provided as follows:

21.1 Subject to the provisions of this clause, an employee who is instructed by the employer to perform and performs ordinary hours on a shift, any part of which falls between the hours of 6.00 am and 7.00 am, or is instructed to perform and performs ordinary duty on a shift that concludes between the hours of 6.00 pm and 8.30 pm, will be entitled to a penalty of 10% of their minimum hourly rate for each hour or part thereof.

21.2 Subject to the provisions of this clause, an employee who is instructed by the employer to perform and performs ordinary hours on a shift, any part of which falls between the hours of 8.30 pm and 6.00 am, will be entitled to a penalty of, in the case of employees employed by a:

(a) metropolitan daily newspaper, suburban newspaper, a magazine or a wire service - 17.5%;

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

of their minimum hourly rate for each hour of that shift.

• [43] Clause 21.5 provided a cap on the "additional payments" that were provided in clauses 21.2 and 21.2, as follows:

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.

• [44] It is clear from the expression of clause 21.5 in the Journalists Award 2010 that the additional payments referred only to the 10, 15 or 17.5 per cent of the relevant classification rather than 110, 115 or 117.5 per cent respectively.

• [45] In light of the above, my provisional view is that the expression of the rate cap in clause 19.5 of the Journalists Award 2020 constitutes an error for the purpose of s 160 of the Act.

• [46] I also propose that clauses 19.1 and 19.2 above be amended to include a heading for "Morning and afternoon shifts" and "Night shifts", respectively. These headings have been adopted from the November 2019 decision and reflect the nature of hours worked as described in those clauses. This proposal is considered further in issue 9 in relation to whether the "penalty" rates set out for employees "other than shiftworkers" in Schedule A are characterised correctly.

• [47] My provisional view is, accordingly, that the Journalists Award 2020 should be varied as follows:

(i) By amending the heading of clause 19 as follows:

Subject to the provisions of clause 19, an employee who is instructed by the employer to perform and performs ordinary hours on a shift will be entitled to be paid an additional 10% 110% of the ordinary hourly rate for all ordinary hours worked on a shift:

(a) any part of which falls between the hours of 6.00 am and 7.00 am, or

(b) that concludes between the hours of 6.00 pm and 8.30 pm.

Subject to the provisions of clause 19, an employee who is instructed by the employer to perform and performs ordinary hours on a shift, any part of which falls between the hours of 8.30 pm and 6.00 am, will be entitled to be paid the following additional rates for all ordinary hours worked on that shift:

Metropolitan daily newspaper, suburban newspaper, a magazine or a wire service

Regional daily newspaper, country non-daily newspaper or digital publication

19.3 The shift penalty additional rates provided in clauses 19.1 and 19.2 are not cumulative and, where any shift attracts both shift penalty additional rates, the higher percentage loading additional rate only will be paid.

19.5 The additional rates prescribed in clause 19 will not exceed the amount calculated based on the additional 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.

19.6 The shift penalty additional rates prescribed in clause 19 are payable only in respect of ordinary hours of work and not when overtime is worked.

• [48] The changes above also propose to replace the term "shift penalty rates" in clauses 19.3 and 19.6 with "additional rates", since the rates prescribed by clause 19 are not properly to be characterised as penalty rates. There are, however, several references to the term "shift penalty rates" throughout the award which are in essence referring to the additional rates provided for shift and weekend work under clause 19. I also find that the references to "[p]enalty rates" and "penalties" in the chapeau to clause 12.4 and clause 12.4(c) respectively mean only the additional shift and weekend rates of clause 19, based on the provisions of clause 12.4(b).

• [49] Therefore, for the avoidance of doubt, I propose to vary these terms wherever they appear in clauses 10.4, 12.4, 12.4(b), 12.4(c), 14.1, 16.2(b)(v), 18.8(d) and 30.1(c) to refer to shift and weekend rates where relevant. Where the intention of the clause is also meant to capture the "public holiday" rate under clause 25, then I propose to include a reference to this rate as well. I find this unambiguously to be the case with clauses 14.1, 16.2(b)(v), 30.1(c) and A.1.1.

• [50] Finally, in line with the changes under clause 19, I also propose to change the Part 5 heading from "Overtime and Penalty Rates" to "Overtime, Shiftwork and Weekend Rates" with cross-references throughout the award updated accordingly.

6. Clause 19 - Impact of clause 19.5 on "digital publication" employee shift rates

• [51] At paragraph [45] of the November 2019 decision, the Full Bench adverted to the fact that, as a result of its decision to remove the exclusion of online news publication from Part 5 of the Journalists Award 2010, there would need to be a modification to references to "newspapers" in the Award.

• [52] In the March 2020 decision the Full Bench proposed to depart from the provisional view expressed in the November 2019 decision and include a "... specific reference to online-only publications...where necessary in respect of provisions which provide differential entitlements to different categories of publication."[10] This was done on the basis that employees of online-only publications would receive the "default" entitlement, or where no default entitlement was specified, would receive the equivalent treatment applying to the majority of publication employees.

• [53] Following the March 2020 decision, references to digital publication employees were included in the summary of rates tables at Schedule A.[11]

• [54] It has come to my attention that some of the rates of pay for shiftwork and weekend shiftwork expressed at clauses A.1.8 and A.2.5 for digital publication employees may be inconsistent with the additional rate caps prescribed by clause 19.5 of the Journalists Award 2020 and/or that clause 19.5 erroneously omits any reference to such employees.

• [55] Clause 19.5 provides that the rates in clause 19 will not exceed the amount calculated based on the rate for, in the case of employees employed by a regional daily newspaper, a Level 8 employee. Clauses A.1.8 and A.2.5 of the Journalists Award 2020 indicate that regional daily and digital publication employees receive the same rates for shift work and weekend work. However, there is no explicit mention of employees employed by a digital publication in clause 19.5, and no provision beyond clauses A.1.8 and A.2.5 that would suggest that such employees are to receive the same rates as employees employed by a regional daily newspaper.

• [56] It is my provisional view that the above anomaly constitutes uncertainty and an error for the purpose of s.160.

• [57] Consistent with the approach taken by the Full Bench outlined at paragraph [52] above, my provisional view is that employees employed by a digital publication should be considered "any other employees" for the purpose of clause 19.5(c) with a maximum additional rate cap at Level 6, with the entitlement for "any other employees" being the "default entitlement".

• [58] I note that country non-daily newspaper employees also fall within clause 19.5(c) and have their additional rate cap set at Level 6. This means the shift rates provided for digital publication employees and a country non-daily newspaper employee are equivalent, subject to the exceptions and exclusions provided by clauses 4.9(a)(iii) and 11.7(a) applying to country non-daily employees. In light of this, and due to the ambiguity or uncertainty identified in relation to issue 1 above, I propose to vary the headings at clauses A.1.8 and A.2.5 to remove the reference to digital publications from the heading "Regional daily or digital publication" and to reinsert it within the heading for "Country non-daily" so that the heading reads "Country non-daily or digital publications". The exceptions and exclusions provided by clauses 4.9(a)(iii) and 11.7(a) applying to country non-daily employees will be noted within the tables.

7. Weekend penalty rates for employees of country non-daily newspapers

• [59] The weekend shift rates for employees in country non-daily newspaper publications are omitted from Schedule A.

• [60] Employees in country non-daily newspaper publications were previously excluded from receiving the additional 10 percent penalty for a weekend shift under clause 21.4 of the Journalists Award 2010. In the November 2019 decision the substantive issues Full Bench stated that it was necessary to remove the exclusion in order for the Award to meet the modern awards objective in s 134(1).[12] The equivalent provision in the Journalists Award 2020, clause 19.4, was subsequently varied to remove the exclusion, giving effect to the November 2019 decision.[13] The variation to clause 19.4, however, is not reflected in the tables at clauses A.1.8, A.2.5, or A.3.5, which set out penalty rates for various types of publications including for country non-daily newspaper employees.

• [61] It is my provisional view that the omission of rates of pay for weekend shifts for country non-daily newspaper employees in Schedule A constitutes an error in for the purpose of s.160.

• [62] It is also my provisional view that the following amendments should be made to Schedule A to rectify the error:

• a column with the weekend shift rates for country non-daily newspaper employees be inserted in the table at clauses A.1.8 and A.2.5;

• clause A.3.5 be varied to remove the exclusion of country non-daily newspaper employees from the column heading of weekend shift rates.

• [63] A further inconsistency appears in the expression of rates for weekend work at Schedule A as compared to clause 19.

• [64] In particular, clauses A.1.5, A.1.6, A.1.7, A.2.2, A.2.3, A.2.4 and A.3.3 express rates for "Weekend" work for employees "Other than shiftworkers" as 120 percent of the ordinary hourly rate (or 145 percent in the case of casual employees). The footnotes in the respective clauses indicate that these additional rates are based on a combination of the 10 percent loading provided in clause 19.1 and the 10 percent loading provided in clause 19.4.

• [65] The terms of clauses 19.1 and 19.4 are set out at paragraphs [36] and [38] above.

• [66] Clause 12.1 sets out the ordinary hours of work and rostering parameters but does not stipulate a particular daily span of hours or days in the week in which ordinary hours must be worked.

• [67] Clause 12.6 provides that "ordinary hours will be a minimum of 4 hours and a maximum of 11 hours' work per day (or 12 hours with the agreement of the employee)".

• [68] It is therefore possible that employees could work shifts on the weekend that attract the 10 percent additional rate in clause 19.4 but not the additional rate in either clause 19.1 or clause 19.2. This would occur where an employee works a shift on a Saturday or Sunday that does not fall between the hours of 8:30pm and 7am and does not conclude between 6pm and 8:30pm. In other words, any shift worked on a Saturday or Sunday that falls wholly between the hours of 7am and 6pm would attract an additional rate of only 10 percent under clause 19.

• [69] In the November 2019 decision, the Full Bench stated the following in relation to clauses 21.1, 21.2 and 21.4 of the Journalists Award 2010 (clauses 19.1, 19.2 and 19.4 in the 2020 Award) (albeit it appears the Full Bench mistakenly referred to clause 21.2 instead of 21.4)[14]:

"... 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 ..."

• [70] The Full Bench went on to say "...[t]he 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. ..."[15]

• [71] The above passages support the interpretation of clause 19.4 in paragraph [68] above.

• [72] The penalty rate of 120 percent for "Weekend" work for non-shiftworkers (or 145 percent for casual employees) in the respective tables in clauses A.1.5, A.1.6, A.1.7, A.2.2, A.2.3, A.2.4 and A.3.3 is applicable only to hours of work that attract the weekend shift penalty in clause 19.4 and the 10 percent penalty rate in clause 19.1. However the heading "Weekend" and the omission of a column for weekend hours of work that attract only the 10 percent loading per clause 19.4 may be read to suggest that all hours worked on the weekend by non-shiftworkers attract a 20 percent loading.

• [73] The tables setting out penalty rates in the clauses referred to above were initially inserted in the exposure draft for the Journalists Award 2010 published on 10 May 2017.[16] The insertion followed agreement between parties that it would be useful to include the penalties payable for employees (including shiftworkers) employed in metropolitan newspapers or magazines, wire services, or regional daily newspapers, suburban newspapers and all other publications.[17]

• [74] It is my provisional view that the anomaly described at paragraphs [63]-[72] above constitutes an uncertainly or error for the purpose of s 160.

• [75] To address this, my provisional view is that clauses A.1.5, A.1.6, A.1.7, A.2.2, A.2.3, A.2.4 and A.3.3 should be amended to include an additional column with the 110 percent weekend rates (135 percent for casual employees) for non-shiftworkers who are not working early or late shifts. I propose to insert a footnote describing the source of this additional rate, and that the numbering of existing footnotes be updated accordingly.

9. "Penalty" rates for employees 'other than shiftworkers' under clause 19.1

• [76] An anomaly has been found in the expression of additional rates in several clauses in Schedule A that are calculated in accordance with clause 19.1.

• [77] Clauses A.1.7, A.2.4 and A.3.3 set out the "Early/late work" rates and the associated "Weekend" ratez exclusively for employees "other than shiftworkers" as stated in the clause heading. In addition, clauses A.1.5, A.1.6, A.2.2 and A.2.3 set out these additional rates under the column heading for employees "other than shiftworkers" alongside the "Shift penalty rate" and "Weekend shift" for "Shiftworkers". However, it seems that the rates presented for employees "other than shiftworkers" are actually shiftwork rates, and therefore, the reference to employees "other than shiftworkers" appears to be in error.

• [78] The "Early/late work" and the "Shift penalty rate" are both derived from the shiftwork provisions of clause 19 and in accordance with the hours worked in clause 19.1 and clause 19.2, respectively. Those shifts will attract an additional 10 percent loading if the shift is worked on a Saturday or Sunday as per clause 19.4 and as reflected in the "Weekend" and "Weekend shift" rates presented throughout Schedule A.

• [79] There is nothing to suggest in clause 19.1 that the "Early/late work" rate applies to employees "other than shiftworkers", other than the references that are made to it in Schedule A as described above in paragraph [77].

• [80] The term "shiftworkers" is not defined in the award and the award does not provide a set span of ordinary hours. As such I see no reason as to why a "shiftworker" could not receive the additional rate provided in clause 19.1, or why employees "other than shiftworkers" could not receive the additional rate provided in clause 19.2. It is conceivable that any employee could work ordinary hours that fall within the span of hours in clauses 19.1 or 19.2 and therefore be entitled to the relevant loading prescribed for such work.

• [81] I note that in the November 2019 decision, the Full Bench described the regulation of Part 5 of the Journalists Award 2010 and what were then clauses 19-Ordinary hours of work, and 21-Shiftwork and weekend penalties, as follows:[18]

"[36] 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 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'..."

• [82] In the context of whether employees employed by country non-daily newspapers should be entitled to the weekend penalty rate, the Full Bench stated that[19]:

"... 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.

[60] 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)."

• [83] There was no indication by the Full Bench that the loadings for an "early morning shift", "afternoon shift" or a "night shift" in the Journalists Award 2010 differed in their applicability to shiftworkers or employees other than shiftworkers. Indeed, clause 19.3 of the Journalists Award 2020 currently refers to the penalties in both clause 19.1 and clause 19.2 as "shift penalty rates".

• [84] As such, it is my provisional view that the "Early/late work" rate derived from clause 19.1 is properly characterised as a shiftwork rate (or shift loading as referred to by the Full Bench in the November 2019 decision_)_, and therefore the reference to "Other than shiftworkers" in Schedule A for these rates constitutes an error for the purposes of s.160.

• [85] It follows that the "Shift penalty rate" presented for "Shiftworkers" in Schedule A and derived from clause 19.2 is not the only exclusive shiftwork rate, and hence, the distinction of rates between "Other than shiftworkers" and "Shiftworkers" in clauses A.1.5, A.1.6, A.2.2 and A.2.3 is erroneous.

• [86] My provisional view is therefore that the following alterations should be made to correct these errors:

(1) The reference to "other than shiftworkers" and "shiftworkers" should be removed altogether from Schedule A.

(2) The "Shift penalty rate" will be renamed, wherever it appears in Schedule A, to "Night shift" as has been referred to in the November 2019 decision[20]. I also propose to amend the wording of "Early/late work" to "Morning/afternoon shift" to keep terminology consistent.

(3) The renamed "Morning/afternoon shift" and "Night shift" rates in Schedule A should be divided into two separate columns showing the corresponding rate for work performed on a "Weekday shift" and a "Weekend shift", the latter of which attracting an additional 10% loading as per clause 19.4. The relevant column headings in Schedule A will be amended to reflect this.

(4) Consistent with this approach, the clause headings in Schedule A should be varied to remove references to "penalty" rates and instead refer to "shiftwork and weekend rates". The "weekend rate" is in reference to the 110 percent (135 percent for casuals) weekend rate worked outside of the shift hours described in clauses 19.1 and 19.2 and which is proposed for inclusion as per issue 8 above.

(5) For ease of cross-referencing between clause 19 and Schedule A, clauses 19.1 and 19.2 should be given the subheading "Morning and afternoon shifts" and "Night shifts" respectively, as earlier discussed.

• [87] In line with my provisional views above I propose to make the following changes in Schedule A:

(i) Deleting the references to "Other than shiftworkers" and "Shiftworkers" in the first row of the table at clauses A.1.5, A.1.6, A.2.2 and A.2.3.

(ii) Deleting the words "Other than shiftworkers" in the clause heading at clauses A.1.7, A.2.4 and A.3.3.

(iii) Deleting the words "Shiftworkers" in the clause heading at clauses A.1.8, A.2.5, A.3.4 and A.3.5.

(iv) Deleting the words "Early/late work" and "Shift penalty rate" wherever it appears in the tables at clauses A.1.5-A.1.8, A.2.2-A.2.5 and A.3.3-A.3.5 and inserting "Morning/afternoon shift" and "Night shift", respectively. In addition, the "Morning/afternoon shift" and "Night shift" loadings will be presented by two columns setting out the rates for a "Weekday shift" and "Weekend shift". The existing rates in the tables will be incorporated under these columns.

(v) Deleting the words "penalty rates" in the clause heading at clauses A.1.5, A.1.6, -A.1.8, A.2.2, A2.3, and A.2.5 and inserting "shiftwork and weekend rates".

(vi) Deleting the words "penalty rates" in the clause heading of clauses A.1.7, A.2.4 and A.3.3 and inserting the words "morning/afternoon shift and weekend rates".

(vii) Deleting the word "penalty rates" in the clause heading of clauses A.3.4 and A.3.5 and inserting the words "night shift rates".

(viii) Inserting the words "Morning and afternoon shifts" and "Night shifts" as a sub-heading to clause 19.1 and clause 19.2, respectively.

10. The early/late shift work "penalt"y rates for regional daily and digital publication full/part-time and casual employees are not set out in Schedule A

• [88] The "Early/late work" shift rates (or "morning/afternoon shift" rates as proposed above) for regional daily employees are omitted in Schedule A (except for cadets). This appears to be the inadvertent result of a correction that was issued before the consolidated 2020 award came into operation.

• [89] Clauses A.1.8 and A.2.5 currently set out only the "Shift penalty rate" (or the "Night shift" rate as proposed) for regional daily employees calculated in accordance with clause 19.2, as well as the associated weekend shift rate.

• [90] The "Early/late work" shift rates under clause 19.1 for this type of publication were originally included in clauses A.1.5 and A.2.2 of the May 2017 Exposure Draft,[21] which also covered metropolitan daily newspaper, magazine and wire service employees. While the early/late work rates for each identified type of publication were equal to one another (with exception to the Level 10 classification in regional daily publications excluded by clause 11.7(b)), the issue was that the "Shift penalty rate" also set out under these combined publications in these clauses would not have been correct for regional daily employees.

• [91] As was also the case, the "Shift penalty rates" calculated under clause 19.2 were duplicated for regional daily employees for full/part-time employees in clauses A.1.5 and A.1.8 as well as for casual employees in clauses A.2.2 and A.2.5 in the May 2017 Exposure Draft. It was calculated at the correct percentage in clauses A.1.8 and A.2.5, but at the incorrect percentage in clauses A.1.5 and A.2.2.

• [92] A determination[22] was issued on 16 June 2020 before the Journalists Award 2020 came into effect which removed regional daily employees entirely from clauses A.1.5 and A.2.2 and with it the early/late work and associated weekend shift rates for this type of publication.

• [93] This may have had the unintended consequence of persons relying on the early/late work shift rates as set in clause A.1.7 or A.2.4 for "All other publication employees" as the source of equivalent rates for regional daily employees. However, this would be incorrect. Clause 19.5 prescribes a maximum additional rate at Level 8 for regional daily employees and at Level 6 for other employees. Hence, the early/late work shift rates between these employees would diverge after Level 6.

• [94] It is my provisional view that the omission of the early/late work shift rates for regional daily employees represents an error in the award, or at the very least an ambiguity given that it could be presumed that these additional rates would be covered in the table presented for "All other publication employees" in clause A.1.7 and A.2.4, which would be incorrect.

• [95] I propose in accordance with this provisional view to include the early/late shift and its corresponding weekend shift rate for regional daily employees in clauses A.1.8 and A.2.5. This will also include the 110 percent weekend rate (135 percent for casual employees) as described in relation to issue 8.

• [96] With this amendment, this makes the position of clauses A.1.7 and A.2.4 which present the early/late work shift rates for 'All other publication employees' less than ideal. I am inclined to move these tables at the end of their respective sections for full/part-time employees and casuals. This would involve moving clauses A.1.8 and A.2.5 before clauses A.1.7 and A.2.4, respectively, and renumbering accordingly.

• [97] A further modification is required to accommodate this change. The early/late shift and weekend shift rates of country non-daily and digital publication employees are currently reflected in the table for "All other publication employees" in clauses A.1.7 and A.2.4. By moving these clauses to the end, this may create the impression that these rates are missing from clauses A.1.8 and A.2.5 which currently only provide the night and weekend shift rates for these types of publications.

• [98] For the avoidance of doubt, my provisional view is to include the early/late shift rates and associated weekend shift rates for country non-daily and digital publication employees in clauses A.1.8 and A.2.5 (including the weekend penalty rates as described in issue 8).

• [99] A number of footnotes appear to be incorrectly referenced at clauses A.1.8 and A.2.5.

• [100] First, the footnote references in the first column at "Level 12" and "Level 13" in both clauses appear to be labelled as footnote "5" rather than footnote "6". Footnote "6" refers to the specific award exclusions operating under clause 4.9(a) which provides that the shiftwork and weekend penalty rates under Part 5 of the Award do not have any application to employees in classification Level 12 or Level 13.

• [101] Second, it appears that footnotes 1 and 3 in tables A.1.8 and A.2.5 are identical, and for brevity, footnote 3 can simply be represented as footnote 1.

• [102] It is my provisional view that these anomalies constitute errors for the purpose of s.160. To address this, my provisional view is that:

• Footnote 3 should be deleted from clauses A.1.8 and A.2.5 and each reference to footnote 3 in clauses A.1.8 and A.2.5 be amended to refer to footnote 1;

• The reference to Footnote 5 next to "Level 12" and "Level 13" in the first column of the table at clauses A.1.8 and A.2.5 be amended to refer to Footnote 6 as currently labelled.

• Remaining footnotes in clauses A.1.8 and A.2.5 should be re-numbered and footnote references in the respective tables be updated accordingly.

• [103] A draft determination giving effect to the provisional views is attached to this decision. Interested parties have until 4.00pm AEST on 2 May 2022 to file submissions in response to the provisional views.

• [104] Submissions should be sent to amod@fwc.gov.au.

• [105] In the absence of any opposition, I will give effect to the provisional views set out in this decision and the Journalists Award 2020 shall be varied in the form set out in the draft determination.

[1] [2019] FWCFB 7603

[2] [2020] FWCFB 1695

[3] PR718531

[4] [2020] FWCFB 6249

[5] PR719795

[6] [2020] FWCFB 6249 at [5]

[7] Australian Industry Group [2021] FWCFB 115 at [20]- [21]; 4 yearly review of modern awards - Vehicle Manufacturing, Repair Services and Retail Award 2010 [2016] FWCFB 4418 at [73].

[8] Overtime provisions specific to part-time employees are provided by clause 9.7.

[9] [2019] FWCFB 7603 at [73]- [75].

[10] [2020] FWCFB 1695 at [10].

[11] See PR727306.

[12] [2019] FWCFB 7603 at [63].

[13] See [2020] FWCFB 1695, [2020] FWCFB 6249 and PR719795.

[14] [2019] FWCFB 7603 at [36].

[15] [2019] FWCFB 7603 at [37].

[16] See Summary of submissions - technical and drafting - revised, 1 September 2017.

[17] Exposure draft, 10 May 2017.

[18] [2019] FWCFB 7603 at [36].

[19] [2019] FWCFB 7603 at [59] and [60].

[20] [2019] FWCFB 7603 at [36], [38], [59]-[60] and [62].

[21] Exposure draft, 10 May 2017. The clauses mentioned are shown under Schedule B in this version of the Exposure Draft but were proposed to be renumbered to Schedule A and came into effect in the next iteration of the Exposure Draft.

[22] PR720187.

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