Michael v Network Ten Pty Limited

Federal Court of Australia|2023-09-15|Before: Mr P, Snaden J

The application be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

SNADEN J: 1 The applicant, Ms Michael, is a former employee of the respondent ("Network 10"), a well-known Australian television broadcaster. She was dismissed by reason of redundancy on 29 May 2020, following a long and storied career. At the time of her dismissal, she was engaged in the position of "Executive Producer - Entertainment" and commanded an annual gross salary of $262,247.40 (excluding bonus). In her role, she was responsible for producing a suite of television programs that featured in Network 10's public offerings. 2 Upon the termination of her employment, Ms Michael was paid a little over $255,000.00 (gross) by way of various termination entitlements, which included amounts referrable to severance pay and payment in lieu of notice. It is the former species of entitlement that is the source of present controversy. Ms Michael was paid an amount equivalent to 12 weeks' pay by way of severance; but submits that she was entitled to be paid significantly more - specifically, 78 weeks' pay (or $393,371.10) more. 3 The source of the entitlement that is alleged is said to be the Network 10 Enterprise Agreement 2019 (hereafter, the "Enterprise Agreement"), which was an agreement made pursuant to - and that had force by reason of - the Fair Work Act 2009 (Cth) (the "FW Act"). It made provision for severance pay entitlements that were more generous than those that were afforded to Ms Michael at the time of her dismissal. Ms Michael alleges that the Enterprise Agreement applied in respect of her employment with Network 10; and that, by failing to make the severance payments that it prescribed, Network 10 contravened it. Network 10 maintains that the Enterprise Agreement did not apply to its employment of Ms Michael. That is the central controversy upon which this action turns. 4 Ms Michael seeks relief principally in the nature of declarations, compensation and penalties in respect of the contravention that she alleges. For the reasons that follow, that relief must be declined. The Enterprise Agreement did not apply to Ms Michael at the time of her dismissal. Network 10 did not contravene it by failing to pay her the severance entitlements for which it provides. 5 The originating application must and will, therefore, be dismissed.

The present action 6 The matter was commenced by originating application dated 31 August 2020. It was the subject of multiple case management orders - the majority of which spanned the covid-19 pandemic. It was listed for trial in late-July 2022; but, regrettably, that listing was vacated for reasons of neither party's making. It was re-listed in September 2022 for trial in March 2023. 7 Initially, Ms Michael's suit alleged contraventions of both s 50 and s 340 of the FW Act (the latter concerning an alleged breach of a "general protection" under pt 3-1 thereof). The s 340 allegation was abandoned when the matter came on for trial. 8 At the hearing of the trial, the court received evidence by way of affidavit and oral testimony from three witnesses. Ms Michael gave evidence on her own behalf. Network 10 called evidence from its Executive Producer and Head of Entertainment, Mr Stephen Tate; and from its Executive Producer and Head of Drama & Production, Mr Richard Maier. Two affidavits affirmed by Mr Mark Stamedes - who was slated to be a further witness - were not read. Evidential objections to the affidavit evidence were resolved at the hearing in the usual ways and a body of documentary evidence was received during the course of the trial. 9 It is convenient at this juncture to summarise the case that Ms Michael advances. As the analysis below lays bare, her entitlement to the unpaid severance pay for which she moves turns upon whether or not she was employed in a classification recognised by sch B to the Broadcasting, Recorded Entertainment and Cinemas Award 2010 (the "Award"). It is to be recalled that, at the time of her dismissal, she was employed in the role of "Executive Producer - Entertainment". The nature of that role is the subject of analysis below; but it suits for now to record that Ms Michael's central contention is that she in fact performed tasks that sufficed to constitute her in the classification of "Producer" under the Award. 10 With that high-level summary of the case that is advanced, attention may turn now to the statutory and quasi-statutory instruments upon which the matter turns.

The FW Act, the Enterprise Agreement and the Award 11 Ms Michael's entitlement to severance pay under the Enterprise Agreement is a function of, amongst other things, the interrelationships between the FW Act, the Enterprise Agreement and the Award. It is convenient to assess each in turn.

The FW Act 12 Part 2-3 of the FW Act is entitled "modern awards". Amongst other things, it provides for the making of instruments - styled "modern awards" - that serve to regulate employment conditions within or applicable to identified industries or vocations. It is not controversial that the Award was such an instrument. 13 Part 2-4 of the FW Act is entitled "enterprise agreements". Amongst other things (and at the risk of over-simplification), it makes provision for the making and approval of agreements - styled "enterprise agreements" - between employers and employees about enterprise-level employment conditions. It is not controversial that the Enterprise Agreement was such an instrument. 14 Sections 50 and 51 of the FW Act provide (and at all times provided) as follows: 50 Contravening an enterprise agreement A person must not contravene a term of an enterprise agreement. … 51 The significance of an enterprise agreement applying to a person (1) An enterprise agreement does not impose obligations on a person, and a person does not contravene a term of an enterprise agreement, unless the agreement applies to the person. (2) An enterprise agreement does not give a person an entitlement unless the agreement applies to the person. 15 Section 52 of the FW Act identifies the circumstances in which an enterprise agreement "applies" to an employee or employer. It provides (and provided) as follows: 52 When an enterprise agreement applies to an employer, employee or employee organisation When an enterprise agreement applies to an employee, employer or organisation (1) An enterprise agreement applies to an employee, employer or employee organisation if: (a) the agreement is in operation; and (b) the agreement covers the employee, employer or organisation; and (c) no other provision of this Act provides, or has the effect, that the agreement does not apply to the employee, employer or organisation. Enterprise agreements apply to employees in relation to particular employment (2) A reference in this Act to an enterprise agreement applying to an employee is a reference to the agreement applying to the employee in relation to particular employment. 16 For present purposes, it is not controversial that the Enterprise Agreement was in operation at the time of Ms Michael's dismissal, nor that there was "no other provision" that provided as s 52(1)(c) contemplated. Whether the Enterprise Agreement "covered" Ms Michael in relation to her employment with Network 10 turns upon s 53 of the FW Act, which relevantly provides (and provided) as follows: 53 When an enterprise agreement covers an employer, employee or employee organisation Employees and employers (1) An enterprise agreement covers an employee or employer if the agreement is expressed to cover (however described) the employee or the employer. … 17 Section 53 applies in relation to enterprise agreements made under pt 2-4 of the FW Act in a manner analogous to that in which s 48 applies in relation to "modern awards" made under pt 2-3. It suffices to note as much - more simply, that a "modern award" covers an employee if it is expressed to do so - without replicating that provision. 18 From that summary, it may be seen that the central question with which the present matter engages - namely, whether or not the Enterprise Agreement applied to Ms Michael - turns upon whether it was "expressed to cover" her. That, obviously enough, calls for analysis of its terms. 19 Before embarking down that path, though, something should be said of the court's jurisdiction to entertain the application that has been advanced. Given that it is uncontroversial, it can be kept brief. Section 50 of the FW Act is a "civil remedy provision": FW Act, s 539(1). Division 2 of pt 4-1 of the FW Act confers upon this court jurisdiction to grant certain species of relief if it is satisfied that a respondent has contravened such a provision. That relief includes orders for compensation and penalties - indeed, all of the relief for which Ms Michael moves.

The Enterprise Agreement 20 The Enterprise Agreement was an instrument made and approved pursuant to pt 2-4 of the FW Act. Clause 2.2 was entitled, "Coverage". It relevantly provided as follows: 2.2.1 The Agreement covers the following: a) Network Ten Pty Limited ("10"); [and] b) Employees of 10 covered by classifications set out in Schedule B - Television and Broadcasting and Schedule D - Journalists of the Award… … The coverage of the Agreement is subject to clause 2.3 and the approval of the Fair Work Commission. 21 The reference in cl 2.2.1(b) to "the Award" is a reference to the Broadcasting, Recorded Entertainment and Cinemas Award 2010: Enterprise Agreement, cl 1 (the definition contained therein refers to the Broadcasting, Recorded Entertainment and Cinema [sic] Award 2010 but that is an obvious typographical error upon which nothing turns). 22 Clause 2.3 of the Enterprise Agreement made provision for "Partial Exemptions". Pursuant to that clause, employees who were otherwise "covered" under cl 2.2(b) were excluded from all but two clauses if their annual "total employment cost" exceeded nominated amounts. It is uncontroversial that, at the time of her dismissal, Ms Michael's total employment cost was above what cl 2.3 prescribed but nothing much turns on that. One of the two clauses whose operation was unaffected by cl 2.3 was cl 13. 23 Clause 13 of the Enterprise Agreement was entitled "Redundancy". Amongst other things, it made provision for amounts that Network 10 was obliged to pay to employees who were dismissed for reasons of redundancy (as was defined). Those amounts were to be calculated by reference to (amongst other things) the period for which the dismissed employee had been employed. In the case of employees with more than 30 years' continuous employment, the provision required payment in lieu of notice equivalent to four weeks' pay and severance pay equivalent to 90 weeks' pay. 24 Presently, it is not disputed that Ms Michael was dismissed for reasons of redundancy and was not paid the amounts prescribed by cl 13 of the Enterprise Agreement (assuming, momentarily, that it applied). There is also no dispute about what amounts were payable in the event that the Enterprise Agreement applied. At issue is the more elemental question of whether or not the Enterprise Agreement "covered" (and, thereby, applied to) Ms Michael's employment. 25 The answer to that question turns solely upon whether or not Ms Michael was, for the purposes of cl 2.2.1(b), an employee who was "covered by [a classification] set out in [one of the relevant schedules to] the Award". Ms Michael claims that she was - specifically, that she was covered by a classification described by cl B.1.14 of schedule B to the Award. That, naturally enough, requires some analysis of the terms of the Award.

The Award 26 The Award assumes an appearance that will be familiar to those acquainted generally with modern awards. In the analysis that follows, references to its terms should be read as references to those terms as they stood on 29 May 2020, when Ms Michael's employment came to an end. 27 Clause 4 of the Award is entitled "Coverage". Clause 4.1 is of present significance and it provides as follows: 4.1 This award covers employers throughout Australia in the broadcasting, recorded entertainment and cinema industry and their employees in the classifications set out in this award to the exclusion of any other modern award. 28 Clause 14 of the Award is headed "Classifications and minimum wages". It makes provision for what is described at cl 14.2 as a "common salary structure", which comprises of a series of grades of "entertainment employee" that correspond to the various job classifications that are described in schedules B to H (each one of which pertains to an identifiable subset of the broadcasting, recorded entertainment or cinemas industries). There are 18 such grades, namely "Grade 1 entertainment employee" through to "Grade 18 entertainment employee". With the exception of "Grade 1 entertainment employee" - which, for reasons that are neither known nor material, does not apply to anybody - cl 14.2 of the Award lists against each such "grade" the classification titles (as set out in the relevant schedules) to which it pertains. "Grade 2 entertainment employee", for example, is comprised of those employed in the classification "Motion Picture Production Employee Level 1" (the nature of which is not presently relevant but is described in schedule H to the Award). 29 There are a couple of "entertainment employee" grades (which is to say, more specifically, subparagraphs of cl 14.2 of the Award) that are relevant for present purposes, specifically: 14.2 Common salary structure … (d) Grade 4 entertainment employee includes the following classifications: Trainee (other than trainee director), Assistant Technician, Assistant Maser Control Operator, Assistant Hair or Make-up Artist, Carpenter's Assistant, Wardrobe Assistant/Keeper, Assistant Still Photographer (non-trade), Set and Prop Painter (non-trade) and Property Assistant/Studio Hand/Prop and Scenery Storeperson/Set Dresser-Television Broadcasting; Broadcast operator - Radio; Motion Picture Production Employee Level 3; and Trainee Captioner/ Audio Describer. (e) Grade 5 entertainment employee includes the following classifications: Technician B, Audio Operator B, Lighting Operator B, Master Control B, Videotape Operator, Camera Operator B, Producer/Director's Assistant/VCG Operator, Assistant Floor Manager, Hair or Makeup Artist, Carpenter - Trade level, Wardrobe Person, Still Photographer (trade level), Set and Property Painter (trade) and Studio Hand A/Set Dresser A - Television Broadcasting; Extra/Stand-in, double - Television Programs and Feature Films etc; Technician - Radio; Motion Picture Production Employee Level 4; and Trainee Subtitler/Subtitling Editor. … (h) Grade 8 entertainment employee includes the following classifications: Technician A+, Audio Operator A/Audio Director, Lighting Operator A/Lighting Director, Master Control A+, Vision Switcher Major Production, Editor A and ENG Camera Operator B, Senior/Specialist Graphic Artist, Trainee Director, Trainee Producer, Producer/Director's Assistant/VCG Operator Major Production, Make-Up Supervisor/Hairdresser Supervisor, Senior Carpenter and Wardrobe Supervisor - Television Broadcasting; Announcer Grade 1 - Radio; Performer Grade 1 - Feature Films; Broadcaster/Journalist Class 1, and Captioner/Audio Describer. (i) Grade 9 entertainment employee includes the following classifications: Senior Technician B, Senior Audio Director B, Senior Lighting Director B, Senior MC Operator B, Senior Production Videotape Operator/Post-Production Editor B, Music/Video Library Supervisor, Senior Camera Operator B, Director, Floor Manager Major Production and Senior Set Designer - Television Broadcasting; Motion Picture Production Employee Level 6. … (l) Grade 12 entertainment employee includes the following classifications: Senior Director, Senior ENG Camera Operator - Television Broadcasting. … (n) Grade 14 entertainment employee includes the following classifications: Supervising Technician B, Master Control Supervisor, Video Supervisor/Post-Production Senior Editor, Director Major Production/Specialist - Television Broadcasting, and Advanced Multi-skilled Captioner/Audio Describer. … (p) Grade 16 entertainment employee includes the following classifications: Supervising Technician A+, Supervising ENG Camera Operator, Supervising Director - Television Broadcasting; Motion Picture Production Employee Level 8. … 30 Clause 14.3 of the Award prescribes minimum wage rates for each of the 18 grades established under cl 14.2. As might be expected, those rates ascend by grade: grade 1 entertainment employees attract the lowest minimum wage rate and grade 18 entertainment employees attract the highest. There appear to be some other rates that apply specifically to journalists but they needn't be addressed for present purposes. In May 2020, the minimum weekly wage for an adult "Grade 8 entertainment employee" was $941.10 (which translates to a gross annual wage of slightly less than $50,000.00). 31 Clause 21 of the Award recognises that employees might occasionally be called upon to work in a classification higher than their ordinary classification. It provides as follows: 21. Higher duties An employee (other than a journalist) engaged for half or more of one day on the duties of a higher classification must be paid the higher rate for the whole day. 32 Clause 32 of the Award is entitled "Allowances". It provides for a series of payments to which employees are entitled in identified circumstances. One such payment is provided for by cl 32.3, which provides as follows: 32.3 A director who works as a producer (a) A director who works as a producer on any television program, in addition to the other payments to which the employee is entitled, is to be paid an allowance of 10% of the relevant minimum weekly wage. The allowance will be calculated on a daily basis. (b) For the purpose of clause 32.3, a producer is an employee who is responsible for the concept of programs, the originating of ideas and formats (or where a script is provided for interpreting the writer's ideas and intentions), selection of music, hiring of talent, preparation and control of budgets, planning and supervision of scenarios and for all details of the production and completion of the program. 33 Schedule B to the Award contains classification definitions that are specific to "Television Broadcasting". They begin, at cl B.1.2 with "Technicians" - specifically, with ten separate technician classifications ranging from "Assistant/Trainee Technician" through to "Supervising Technician A+". There are then 21 other classification categories (spanning cll B.1.3 to B.1.23). As with the "Technicians" group, each comprises a hierarchy that generally begins with a "trainee" classification and ends with a "supervisor" classification (or analogues thereof), with intermediate classifications between those extremities. 34 There are a small number of classification groupings that should be noted. Clause B.1.13 is headed "Directors". Again, it spans "Supervising Director[s]" (cl B.1.13(a)) through to "Trainee Directors" (cl B.1.13(e)). The base-level, non-trainee "Director" classification is described as follows: (d) Director Skills, competencies, duties and responsibilities held and exercised (i) Performs the duties of the lower classifications. (ii) Directs all programs other than Major Production. (iii) Routine pre-structured or fixed format productions (e.g. news, current affairs, presentation hosting, forums). (iv) Directs limited shooting patterns. (v) Tasks varied and highly specific. (vi) In-depth knowledge of the production and operational principles of a television station and has a broad range of skills. (vii) Responsible for, and limited organisation of, work of others. (viii) Works under broad guidance. 35 Also relevant (and significantly so) is the grouping "Producer/Director's Assistant/VCG [apparently "video character generator"] Operator", for which cl B.1.14 of sch B to the Award provides. There are at least three (perhaps more) discrete classifications within that group, namely "Producer/Director's Assistant Major Production/VCG Operator Major Production" (cl B.1.14(a)), "Producer/Director's Assistant/VCG Operator" (cl B.1.14(b)) and "Trainee Producer/Director's Assistant/VCG Operator" (cl B.1.14(c)). The "[s]kills, competencies, duties and responsibilities held and exercised" by each of those three classifications are split, in each case, as between "Producer/Director's Assistant[s]" and "VCG Operator[s]". It is prudent to replicate cl B.1.14 in full: B.1.14 Producer/Director's Assistant/ VCG operator (a) Producer/Director's Assistant Major Production/VCG Operator Major Production Skills, competencies, duties and responsibilities held and exercised (i) Producer/Director's Assistant Major Production • Performs the duties of the lower classifications. • In-depth knowledge and a broad range of skills. • Works as a Producer/Director's Assistant on any style of television production regardless of complexity of the program. • Required to assist directors on Major Production in both studios and external locations. • Exercises initiative and judgment. • Performs a broad range of tasks and roles. • Judgment for self and others in the production process, actions and outcomes within time constraints. • Exercises discretion and judgment in the production process, work organisation and services for the job at hand. • Works under broad guidelines and instructions from the Production Department management or the Director in charge of the production at hand. • Responsible for the production outcome of their work. • If other lower level Producer/Director's Assistant employed, could be responsible for the allocation of those staff within this occupational group to accommodate a predetermined production schedule. • Provides guidance and assistance if part of a work team of Producer/Director's Assistants. • Advanced computer skills. (ii) VCG Operator Major Production • Performs all the duties of the lower classifications. • In-depth knowledge of a broad range of tasks and roles. • Works on a variety of productions (including Major Production) with varying degrees of complexity during the recording, rehearsal or live transmission of a major program under direction. • Proficient in all types of on-screen display and VCG equipment. • A comprehensive range of skills. • Exercises initiative and judgment for self and others while operating under the direction of a director or co-ordinator and for actions and outcomes within constraints. • When not rostered to a specific production, responsible to a relevant person within the production or operations department structure. • If lower level VCG operators employed, could be responsible for the allocation of those staff within the occupational groups to accommodate a predetermined production schedule. • Provides guidance, assistance and training if part of a work team of VCG operators. • Advanced computer skills. (a) Producer/Director's Assistant/VCG Operator Skills, competencies, duties and responsibilities held and exercised (i) Producers/Director's Assistant • Performs the duties of the lower classifications. • Application of knowledge and skills to a range of tasks and roles. • Assists the Director in a control room on non Major Productions (e.g. news, current affairs, sport, presentation/hostings, lower level productions than a Senior Producer/Director's Assistant). • Works on Major Production assisting a Senior Producer/Director's Assistant Major Production. • Works within routines but exercises some initiative and judgment. • Works under broad guidelines and instructions from the production department, management or the Director when working on a specific production. • Responsible to the Director for the outcome of their work with respect to the job at hand. • Intermediate computer skills. (ii) VCG Operator • Performs the duties of the lower classifications. • In-depth knowledge and a broad range of tasks and roles. • Works within routines but exercises initiative and judgment. • Operates video character generator equipment during a rehearsal or live transmission of a program under the direction of a director or co-ordinator. • Responsible to the production or operations management structure when not rostered to a specific production. • Responsible to the director or co-ordinator of the specific production. • Responsible for the visual outcome of their work. • Intermediate computer skills. (b) Trainee Producer/Director's Assistant/VCG Operator Duties, skills, competencies and responsibilities exercised and held (i) Trainee Producer/Director's Assistant • In the course of training. • Performs duties of a minor nature in the preparation for rehearsals, recording or the live telecast of a television program. • Training can also include providing minimal assistance to a director in the course of their preparation for program production. • Exercises minimal judgment and subject to direct supervision. • Less than 12 months' continuous service. • Basic computer skills. (ii) Trainee VCG Operator • In the course of training. • Performs duties of a minor nature. • Exercises minimal judgment and subject to direct supervision. • Less than 12 months' continuous service. • Basic computer skills. Promotion/Progression to Producer/Director's Assistant or Assistant VCG Operator Upon successful completion of training, after 12 months' continuous service at the Trainee Producer/Director's Assistant/VCG Operator classifications, the employee is to be progressed to Producer/Director's Assistant/Assistant VCG Operator. 36 Other classification groupings appear to cover the vocations that one might normally expect to see represented on a television production, including "Lighting" employees (cl B.1.4), "Videotape" employees (which appear to include video editors - cl B.1.8), "Camera" employees (cl B.1.10), "Floor Manager[s]" (cl B.1.15), "Make-up and Hairdresser" employees (cl B.1.16) and "Set Design" employees (cl B.1.20). It is apparent that sch B to the Award does not (at least not by itself) establish anything in the way of a hierarchy to the 22 discrete groupings; but, as has been said, there are distinct hierarchies within each group.

The nature of Ms Michael's employment 37 Most of the evidence that was received during the trial focused upon Ms Michael's employment history and the nature of the role that she performed prior to her dismissal. 38 Ms Michael's employment history, though interesting, is ultimately not material and can briefly be stated. It began in February 1986, when she accepted employment as a Film Editor with a predecessor entity, United Telecasters Sydney Limited. For the remainder of the 20th century, she worked in various - mostly editing - roles. In January 2000, she began her employment with Network 10 in the role of "Co-ordinator of Production". It is apparent that her prior service with United Telecasters was to be recognised as though service with Network 10. 39 In October 2005, Ms Michael was promoted to the role of "Network Producer". Between March 2007 and June 2010, she served as an "Executive Producer - Digital"; and, thereafter, in the role from which she was ultimately dismissed, namely "Executive Producer - Entertainment". From 1 January 2012 onwards, her employment was governed by (or at least by) the terms of a written contract. Her annual salary at that point was $152,250.00 (inclusive of superannuation). 40 The findings that follow concern Ms Michael's role as an executive producer. They emerge from the written and oral evidence, very little (if any) of which was materially in contest. 41 Over the course of her tenure as "Executive Producer - Entertainment", Ms Michael's annual salary was regularly increased. At the time of her dismissal, it sat at $262,247.40 (gross). Additionally, Ms Michael participated in Network 10's short-term incentive plan, pursuant to which she received additional amounts in the form of performance bonuses. It appears that Ms Michael's total remuneration for the financial year to 30 June 2019 was approximately $300,000.00. 42 In her role as an executive producer (or as "Executive Producer - Entertainment"), Ms Michael was responsible for managing the production of specific television programs. She reported to various individuals throughout her tenure in that role. Most recently, from November 2014 until her dismissal, she reported to Mr Maier. 43 At that time (May 2020), Network 10's "Executive Production" team was headed by its Chief Content Officer, Ms Beverley McGarvey. Beneath Ms McGarvey were three senior "Head of" roles: Ms Sarah Thornton served as "Head of Popular Factual", Mr Tate as "Head of Entertainment" and Mr Maier as "Head of Drama & Production". Each had either one or two executive producers beneath them. Excluding Ms McGarvey and her assistant, the "Executive Production" team comprised eight people. Collectively, they were tasked with producing high-quality television programs and maximising Network 10's audience share. 44 From approximately 2018, Ms Michael attended fortnightly (and, prior to then, weekly) meetings of Network 10's executive producers, department heads, Chief Content Officer and Head of Programming. The purpose of those meetings, perhaps amongst many, was to discuss Network 10's ratings and the television shows for which each of the executive producers was responsible. 45 Ms Michael also attended quarterly planning meetings, at which Network 10's Chief Content Officer (Ms Beverley McGarvey) discussed (no doubt amongst other things) any new productions that were in the network's pipeline. 46 Throughout her time as an executive producer, Ms Michael's performance was monitored and managed by means of what were known as "Achieve Plans". Broadly, Achieve Plans consisted of identified performance indicators upon which she was to focus in the discharge of her role, the realisation of which was fed into the calculation of her annual short-term incentive payments. Her Achieve Plan for 2020, for example, identified four key performance indicators and a weighting system applicable to each. It is prudent to record them (though not the detail attached underneath each): 1. Key Performance Indicator: Continued Production of exiting and future programs Weight: 40% … 2. Key Performance Indicator: Self Development Weight: 20% … 3. Key Performance Indicator: Executive Production Management Weight: 20% … 4. Key Performance Indicator: Provide Leadership and direction to the team (Mandatory) Weight: 20% 47 More should be said about each of those four key performance indicators. By the first of them, Ms Michael was encouraged to "oversee" the production of identified television shows, and to do so "with the highest production values to ensure [the] continued success of [each]". Various dot points listed the criteria that would inform her success in respect of each of three programs that were apparently hers to oversee. 48 In the case of the first, Talking Tribal (a companion program related to a perhaps more well-known program, Australian Survivor), Ms Michael was charged (amongst other things) with "[s]eries recommission" and working "…on the editorial content [to ensure] that [the] story line within the broadcast is not compromised". 49 In the case of the second, the Women's Weekly - Easter Special, Ms Michael was encouraged to achieve a "[c]onsolidated 7 day total audience [of] 394,000" and to ensure that the production was within the "[t]op 10 shows for 25-54 in its timeslot" (which I infer is a demographic reference to Australian television watchers between the ages of 25 and 54). 50 In the case of the third, Bondi Rescue, Ms Michael was tasked with achieving a "[c]onsolidated 7 day total audience [of] 400,000" and with having the series recommissioned. 51 Ms Michael's 2020 Achieve Plan also identified that she would "…[o]versee the production of Adhoc specials (such as Coronavirus - How to Self Isolate) and/or Pilots". To that end, it was noted that she was to "…[c]reate and turn around special[s] within budget". 52 Under the "Self Development" heading of her 2020 Achieve Plan, Ms Michael was tasked with developing her "…own skills and knowledge in [p]rogram content, production and new media". For "Executive Production Management" (the third of the four key performance indicators), she was to (amongst other things) "…[e]nsure all programs under [her] supervision [were] commercialised to their full potential with respect to the market conditions and editorial integrity". 53 The fourth and final key performance indicator was that Ms Michael should "Provide leadership and direction to the team". That, so the plan went on to nominate, would involve (amongst several other things) serving as "a direct, transparent leader", "[l]ead[ing others] to challenge red tape and old thinking", "[p]romot[ing] wellbeing and flexibility as relevant to support the team" and ensuring that others under her management conduct themselves "…in accordance with [Network] 10's policies and procedures". 54 Over the course of her time as an executive producer, Ms Michael had occasion to work on many productions beyond those referred to in her 2020 Achieve Plan. They included Family Feud, The Loop, The Living Room, Bondi Vet, Pointless and Celebrity Name Game. Many were shows that were produced by other production houses, such as Fremantle Media and Endemol Shine. It was common for Network 10 to commission the production of shows by external providers; and for its own executive producers, including Ms Michael, to liaise with counterparts employed by those providers. Other productions were done within Network 10's own studios (and produced by staff or contractors that it engaged). Some were "hybrid" productions, where external production houses were commissioned to produce programs and did so within Network 10's studios. In each case, the role of the executive producer was to ensure that the program was produced to the standard that Network 10 required. 55 Although there were differences from production to production, Ms Michael's role as "Executive Producer - Entertainment" was generally to make sure that what was produced met those standards. In the case of programs produced externally to Network 10, that involved providing feedback and direction to relevant external production houses, including as to script content and editing, product placement, and the review of finished products. In the case of direct productions of Network 10's, it involved equivalent tasks, as well as the supervision of production employees (including editors, directors and hosts), involvement in the selection of contestants (for those productions that had any), and the approval or direction of matters such as set composition, lighting and camera work. 56 Ms Michael's role as an executive producer also involved ensuring that the shows that she was tasked with producing were produced to approved budgets and were marketed properly. The latter involved liaison with staff in Network 10's marketing and promotions department. 57 Having had extensive practical involvement in the various disciplines that comprise the production process, Ms Michael also undertook various production tasks herself. She maintained her proficiency with - and regularly undertook work involving - video-editing software, and attended on occasion to operating cameras and shooting publicity photographs relating to her productions. In those respects, she operated outside the classical boundaries of Network 10's other executive producers, who typically did not undertake "hands-on" work of that nature. 58 That "hands-on" work assumes some - albeit, for reasons to which I shall shortly come, not material - significance. There is no doubt that Ms Michael performed more work "on the tools" than her executive producer counterparts. There is no suggestion that she was instructed or required to; but, equally, there is no suggestion that she needed to be so instructed or directed, nor that the "hands-on" work that she performed was performed behind Mr Maier's back or without his or Network 10's knowledge. 59 Indeed, Mr Maier's evidence was precisely to the contrary. He eagerly acknowledged that, from time-to-time, Ms Michael would attend to production tasks such as editing, camera operation and photography. He agreed that she was competent to those ends (indeed highly so) and that she showed initiative in undertaking them when she considered it appropriate. He accepted that Network 10 benefitted from her technical background and willingness to deploy it on the shows whose production she oversaw. 60 With that description of Ms Michael's role completed, the following observations may be stated. The role of "Executive Producer - Entertainment" was one of obvious and significant seniority. In the anatomy of a television production, Ms Michael, as executive producer, sat very much toward the top - if not at the top - of the proverbial tree. Undoubtedly, she performed tasks that, in other productions (or under the oversight of other executive producers), might be employed by less senior employees, including specialist vocational employees (camera operators, editors, etcetera). Nonetheless, it is beyond doubt - and not really in contest - that Ms Michael's role was one of significant seniority and importance to the production of Network 10's broadcast content.

The "major and substantial" test 61 Ms Michael's central contention is that she was employed in (or covered by) the classification of "Producer" under the Award. Whether that might be accepted turns, at least potentially (and subject to what is said below), upon whether the major and substantial aspect of her role was, in fact, aligned with the aspects of the classification of "Producer". 62 The "major and substantial" test is one of long-standing. It is recognised by authority as a means of determining the proper classification within which an employee should be understood to be (or to have been) employed in circumstances where his or her duties expand (or expanded) throughout those of multiple classifications or across multiple industrial instruments. In such circumstances, the court is concerned to recognise the employee in question as being employed in the classification that accords with the major and substantial aspect of his or her employment. 63 In Ware v O'Donnell Griffin (Television Services) Pty Ltd [1971] AR(NSW) 18, Sheldon J described the point of principle in the following terms (at 19): This principle is almost as old as industrial arbitration and it makes a practical approach to determining the application of awards where duties are of a mixed character and contain elements which if taken alone would be covered by more than one award. This is not an appropriate occasion on which to discuss the method by which this test should be applied except to say that it is not merely a matter of quantifying the time spent on the various elements of work performed by a complainant: the quality of the different types of work done is also a relevant consideration. 64 Those observations, or analogues of them, have been consistently applied in this court: Choppair Helicopters Pty Ltd v Bobridge [2018] FCA 325, [66] (Bromberg J); Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd [2016] FCA 621, [27] (Besanko J); Construction, Forestry, Mining and Energy Union v Anglo Coal (Callide Management) Pty Ltd [2015] FCA 696, [38]-[39] (Logan J). 65 By their written submissions filed in advance of the trial, both sides accepted that the present dispute should turn upon an application of the "major and substantial" test: in other words, upon whether or not the work performed by Ms Michael was apt to constitute her as having been employed in the classification of "Producer". Ms Michael maintained - and still maintains - that the major and substantial aspect of her employment was that of a "Producer" under cl B.1.14 of sch B to the Award. Network 10 maintained - at least initially - that, on its proper construction, that classification excludes senior, executive-level employees such as Ms Michael. 66 There is a third possibility that, perhaps, did not emerge with clarity until the trial: namely that, on its proper construction, cl B.1.14 does not cover "Producer[s]" at all (executive-level or otherwise). Ultimately, Network 10 submitted as much. Whether that may be accepted is a question of construction, to which attention might conveniently now turn.

The proper construction of cl B.1.14 67 In the analysis that follows, I shall address three central considerations, namely: (1) the principles that guide the proper construction of modern awards; (2) the application of those principles to cl B.1.14 of the Award; and (3) the implications for the case that Ms Michael advances that arise from that application.

Principles to be applied 68 In City of Wanneroo v Australian Municipal Administrative, Clerical and Services Union (2006) 153 IR 426, 438-439 [53], French J made the following observations about the construction of industrial instruments such as the Award: The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to '...the entire document of which it is a part or to other documents with which there is an association'. It may also include '... ideas that gave rise to an expression in a document from which it has been taken' - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; 46 IR 128 at 134 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia (1998) 82 FCR 175; 80 IR 345 (Marshall J). 69 In construing a modern award, the court should be concerned to adopt a purposive approach in preference to one that is narrow or pedantic; and should do so conscious that the framers of the instrument were likely of a "practical bent of mind": Kucks v CSR Ltd (1996) 66 IR 182, 184 (Madgwick J); James Cook University v Ridd (2020) 278 FCR 566, 580 [65] (Griffiths and SC Derrington JJ, Rangiah J in dissent but not on this issue); BioGiene Pty Ltd v Mullan [2022] FCAFC 73, [26] (Charlesworth and Snaden JJ, with whom O'Callaghan J agreed); Shop, Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67, [16] (Marshall, Tracey and Flick JJ). It should favour an interpretation that "…turns upon the language of the particular [instrument], understood in the light of its industrial context and purpose": Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241, 246 [2] (Gleeson CJ and McHugh J).

Application 70 Properly construed, cl B.1.14 of sch B to the Award does not create a stand-alone classification of "Producer". In saying so, it must be acknowledged that the way in which the clause is framed gives rise to unfortunate ambiguity. Nonetheless, when read in context, I consider it clear that the classifications established by cl B.1.14(a)(i), (b)(i) and (c)(i) pertain to employees who assist producers (and directors); not to producers themselves. 71 The ambiguity and scope for confusion arises from the liberal use - perhaps overuse - of virgules (known more commonly in modern times as forward slashes) in the subheadings around which cl B.1.14 of sch B to the Award is structured. The clause refers consistently (or almost consistently) to "Producer/Director's Assistant/VCG Operator". On one view, the two forward slashes might be thought to delineate three separate classes of employee: Producers, Director's Assistants and VCG operators. 72 Context, however, suggests otherwise. Each of paragraphs (a), (b) and (c) of cl B.1.14 is split only into two (rather than three) classes. The first is described twice as "Producer/Director's Assistant" (see cl B.1.14(a)(i) and (c)(i)) and once as "Producers/Director's Assistant" (see cl B.1.14(b)(i)). The second is "VCG Operator" (cl B.1.14(a)(ii), (b)(ii) and (c)(ii)), which can be cast to one side for present purposes. 73 It is clear enough that the classifications established by cl B.1.14(a)(i), (b)(i) and (c)(i) (assuming, momentarily, that they establish separate classifications) pertain to three grades of the same type of employee. The lowest or entry-level grade is that of "trainee" (cl B.1.14(c)(i)), the highest is that of those who work on "Major Production[s]" (cl B.1.14(a)(i)) and then there is the standard grade in the middle (cl B.1.14(b)(i)). 74 What, then, is to be made of the forward slash that separates "Producer" (or, in the case of cl B.1.14(b)(i), "Producers") from "Director's Assistant"? Do the classifications envisage coverage of those employed as producers (on the one hand) and those employed to assist directors (on the other); or is it aimed at those who are employed to assist either producers or directors? Ms Michael, for obvious reasons, favours the former construction; Network 10 agitates for the latter. 75 Before coming to why the latter construction must be preferred, something should be said about the absence within the clause of reference to the constituent tasks that attach to the three levels of "Producer/Director's Assistant". None of cll B.1.14(a)(i), (b)(i) and (c)(i) identifies with any real precision any such tasks. Instead, each identifies the qualities expected of those engaged in the roles (for example, an ability to exercise discretion and judgment), the competencies expected of them (for example, computer skills) and relevant lines of direction (that is, to or from whom they might give or receive direction or guidance). Clause B.1.14 says very little, if anything, about the constituent tasks that are performed by "Producer/Director's Assistant[s]" (or by "Producer[s]", "Director's Assistant[s]", or those who assist either "Producer[s]" or "Director[s]"). 76 What is tolerably clear, however, is that the Award envisages that the principal role of "Producer/Director's Assistant[s]" is to assist; and, in particular, to assist directors (or, perhaps in limited circumstances, other "Producer/Director's Assistant[s]"). As much emerges from the descriptions to which cl B.1.14 gives voice. They speak consistently (in effect if not in terms) of "Producer/Director's Assistant" employees "assist[ing] directors" and working under instruction from "the production department, management or the Director". 77 That central assistance role is also consistent with the pay grades that are established by cl 14 of the Award (see above, [29]): the entry level "Director" classification ("Trainee Director") is a "Grade 8 entertainment employee", which happens to be the same grade as applies to the most highly-classified "Producer/Director's Assistant" ("Producer/Director's Assistant/VCG Operator Major Production"). The highest classification of "Director" - "Supervising Director" - is (or appears to be, albeit not with consistent nomenclature) a "Grade 16 entertainment employee". On any view, the Award contemplates a hierarchy in which directors are elevated above (and paid more than) "Producer/Director's Assistant[s]". 78 Equally clearly, however, the Award appears to recognise that directors sit lower in the proverbial pecking order than producers (to say, for the moment, nothing of executive producers). That is apparent, contextually, from cl 32.3 of the Award (above, [32]). It contemplates that directors who work as producers should be paid more than directors who don't. It is difficult to conceive of any policy rationale underpinning that other than that the work of producers is considered more critical or difficult or "senior" than that of directors. 79 That, of course, accords with Ms Michael's own experience. The evidence was clear: as "Executive Producer - Entertainment", Ms Michael supervised the work of the directors who were engaged on the productions that she managed. At least was those so in respect of the ones that were produced directly by Network 10. In the case of programs produced by third-party production houses, Ms Michael's supervisory role was one of liaison with her producer counterparts, which those third parties employed. In all cases though, directors answered (directly or ultimately) to Ms Michael; not the other way around. 80 Clause 32.3(b) of the Award (above, [32]) contains an additional contextual clue as to what might be thought to qualify as the work of producers. Although, by its terms, its operation is limited to the allowance referred to in cl 32.3(a), it nonetheless describes a "producer" as "…an employee who is responsible for the concept of programs, the originating of ideas and formats (or where a script is provided for interpreting the writer's ideas and intentions), selection of music, hiring of talent, preparation and control of budgets, planning and supervision of scenarios and for all details of the production and completion of the program". On any view, that definition sits comfortably alongside (although not wholly coincidental with) the work that Ms Michael performed throughout her tenure as an executive producer. 81 There are other contextual indicators that favour Network 10's construction of cl B.1.14. The clause itself provides, in the case of "Producer/Director's Assistant" employees who work on "Major Production[s]", that they might provide "…guidance and assistance if part of a work team of Producer/Director's Assistants". That reference can only make sense, grammatically, if the reference to "Producer/Director's Assistants" is understood as a reference to the assistants of producers and/or directors. There is, plainly, no such thing as a "team of Producer" - the plural necessitated by the noun "team" is instead applied to the otherwise singular "Assistant". 82 Similarly, the classification level established by cl B.1.14(a) of sch B to the Award is headed "Producer/Director's Assistant Major Production/VCG Operator Major Production". It is, as has been noted, the highest of the three levels established by cl B.1.14. What distinguishes it from the other levels is deployment upon "Major Production[s]" (a concept that is elsewhere defined). It is immediately apparent that that point of distinction is applied only twice: to "Producer/Director's Assistant[s]" and to "VCG Operator[s]". The subclause does not contemplate a role of "Producer Major Production". That tends to suggest that the level is aimed at two (not three) species of employee: VCG operators who work on "Major Production[s]" (on the one hand); and those who are employed to assist producers or directors in "Major Production[s]" (on the other). 83 Ms Michael's preferred construction gives rise to the potential for absurdity. Under cl 14.2(h) of the Award, "Grade 8 entertainment employees" include those employed in the classifications of "Trainee Producer" and "Producer/Director's Assistant/VCG Operator Major Production". I will say more about the reference to "Trainee Producer[s]" shortly and, for now, will look beyond the minor want of correspondence between the descriptions in cl 14.2(h) and cl B.1.14(a)(i) of sch B (the latter of which refers, as the previous paragraph alludes, to "Producer/Director's Assistant Major Production/VCG Operator Major Production" - emphasis added). Of more immediate note is the idea that a "Producer" on a "Major Production" might attract the same minimum wage as a "Trainee Producer". That is, to say the least, a strange prospect. 84 Even stranger is that the classification of "Trainee Producer" comes in three grades higher (at "Grade 8") than the mid-level classification of "Producer/Director's Assistant/VCG Operator" (at "Grade 5"). If Ms Michael is correct and the references to "Producer/Director's Assistant" in cl B.1.14 are references separately to "Producer[s]" (on the one hand) and "Director's Assistant[s]" (on the other), then the result is that trainee producers are entitled to a higher minimum wage than actual producers. It is unlikely in the extreme that the Award was designed to effect such self-evident absurdity. 85 Nonetheless, the reference to "Trainee Producer" in cl 14.2(h) of the Award is a curiosity all its own - and one that tends in favour of Ms Michael's construction. The only place in sch B to the Award (indeed, in any of its schedules) in which the words "Trainee Producer" appear is cl B.1.14(c). The fact that there is a pay grade applicable to "Trainee Producer[s]" suggests that that is a classification known to the Award; and, if that is so, it is difficult to see how its source might be anything other than cl B.1.14(c)(i). That tends to suggest that the references in cl B.1.14 to "Producer/Director's Assistant" are references to people employed either as "Producer[s]" or as "Director's Assistant[s]". It could not be said, then, that Ms Michael's construction of the phrase is wholly without contextual support. 86 Indeed, further contextual support might (although wouldn't necessarily) be said to reflect in the fact that the relevant possessive apostrophes in cl B.1.14 are applied only to "Director"; and not to both "Producer" and "Director". If the noun "Assistant" was to be qualified by both "Producer" and "Director", that could have been made clear by applying the possessive to both (that is, "Producer's/Director's Assistant"). 87 Plainly, the Award contains some unfortunate drafting oversights that complicate the task of properly construing it. They must be navigated so as to prefer a construction that aligns with what might be divined as the intention underlying the Award and the classification structure around which it is based. Notwithstanding what limited contextual material there is that tends otherwise, I consider that it is clear enough that the Award posits a hierarchy not materially different from that in which Ms Michael actually worked: specifically, one in which producers (much less executive producers) sit toward or at the apex of production employees, with supervisory (if not, as in Ms Michael's case, executive) responsibility for the production of broadcast content. That responsibility necessarily subordinates the work of directors and other production staff to that of producers.

Consequence 88 It follows from the analysis just completed that the references to "Producer/Director's Assistant[s]" throughout cl B.1.14 must be understood as references to employees who are engaged to assist producers and/or directors. Ms Michael was not - and was not suggested to be - employed in such a role. 89 With the possible exception of "Trainee Producer[s]", the Award does not cover the employment of producers, much less executive producers. It follows, for the purposes of cl 2.2.1(b) of the Enterprise Agreement, that Ms Michael was not one of Network 10's employees who were "…covered by classifications set out in Schedule B - Television and Broadcasting…of the Award".

What about the "major and substantial" test? 90 Accepting, as I do, that there is no "Producer" classification under the Award, it is not necessary to attempt any application of the so-called "major and substantial" test. But, given the prominence that it assumed in the parties' written submissions, something briefly should be said of it. 91 It is plain on its terms that cl B.1.14 of sch B to the Award does not contemplate that employees engaged in the "Producer/Director's Assistant/VCG Operator" classifications will be clothed with management or executive responsibility. Although there is some, albeit limited, scope for the supervision of others, the classifications established by the clause all envisage subordination to, rather than membership of, the ranks of management. 92 That, evidently enough, reflects a reality that echoes in many (although not all) modern awards: namely, that they do not typically operate with respect to management employees. In turn, that is likely a manifestation of the direction contained within s 143(7) of the FW Act, which prohibits modern awards from being expressed to cover classes of employees "…who, because of the nature or seniority of their role, have traditionally not been covered by awards". 93 There can be no doubt (and I find) that Ms Michael was employed at a senior or executive level within Network 10. Not only is that apparent from the significant remuneration that she commanded - which was several multiples of the minimum wage reserved for those to whom cl B.1.14 of sch B to the Award applied (and, indeed, that of even the most senior of Award-covered employees) - it is also evident from the nature of the tasks for which she was responsible. At its core, Ms Michael's role was to promote the commercial interests of her employer by ensuring that it was able to broadcast the high-quality television shows whose production she managed. 94 That Ms Michael occasionally applied herself to the discharge of non-managerial tasks - although undoubtedly to her credit - does not defer from that central reality. Ms Michael was not a production employee who, from time to time, also managed the creation of television shows; she was an executive who managed the production of television shows and who, from time to time, also undertook some of the constituent production roles that that entailed. The major and substantial aspect of her employment was to manage production (either in-house or via third parties). That aspect did not align with any of the descriptions contained within cl B.1.14 of sch B to the Award. 95 It follows - or, but for my earlier conclusion, would have followed - that Ms Michael was not employed as a "Producer" within the contemplation of cl B.1.14 of sch B to the Award. For the purposes of cl 2.2.1(b) of the Enterprise Agreement, she was not amongst the cohort of employees who were "…covered by classifications set out in Schedule B - Television and Broadcasting…of the Award".

Disposition 96 The Enterprise Agreement did not cover - and, therefore, did not apply to - Ms Michael's employment with Network 10. Network 10 was not obliged to pay her by way of severance an amount calculated in accordance with cl 13 of the Enterprise Agreement. Its failure or refusal to do so was not effected in contravention of s 50 of the FW Act. 97 The originating application must be dismissed. Section 570 of the FW Act likely prohibits the court from making any award of costs; but, in the event that there might be some as-yet-unventilated reason to think otherwise, an application for costs may be made on notice in the usual way. In the meantime, there shall be no order on that front. I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.

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