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Fair Work Act 2009                                       1057224






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Journalists Published Media Award 2010




9.03 AM, THURSDAY, 8 AUGUST 2019


VICE PRESIDENT HATCHER:  Yes, I'll take the appearances.  Mr Chesher, you appear for the Media, Entertainment and Arts Alliance?


MR M CHESHER:  That's correct, your Honour.


VICE PRESIDENT HATCHER:  Mr Crilly, you appear for Rural Press and Nine.


MR S CRILLY:  Yes, your Honour.


VICE PRESIDENT HATCHER:  Mr Dudley, you appear for the Daily Mail.


MR B DUDLEY:  That's correct, your Honour, with Ms Noakes.


VICE PRESIDENT HATCHER:  Yes.  And there's no opposition to permission for legal representation being granted?


MR CHESHER:  I have some misgivings your Honour, but not enough to object.


VICE PRESIDENT HATCHER:  All right, well that permission is granted.  So, Mr Chesher.


MR CHESHER:  If it pleases the Commission, MEAA has made progressive submissions with respect to the Journalists Published Media Award 2010 since 2015. In the four years since our first submission, we submit that the case for reform of the award has grown and, in our opinion, become difficult to resist.  We say that the published media industry in Australia has transformed from analogue to digital.  Digital is the dominant form of journalistic work and the dominant form of transmission of news and information.  The future is online and foreseeably, only online.


Publishing entities that maintain a print presence within Australia have been for some time been called legacy publishers.  That's not a flattering term, yet they are fully covered by the provisions of the Journalists Published Media Award 2010.  We say that it is incongruous and wrong that their nimble online competitors that do not bear the substantial cost of producing physical newspapers and presently have the added benefit of having Part 5 of the award not apply to them, do not bear some responsibility for adhering to those quite reasonable award provisions.


We say that not covering the online sector in the same way as the print sector is akin to regulating Qantas, but leaving Jetstar free of its obligations under aviation and other laws.  Our friends say in their submissions that MEAA assert that there has been a shift from print to online, that we have not produced evidence or that it is not in the proper form.  With respect to them, I submit that no matter what MEAA may have submitted, it may not have met with their satisfaction.


What we have provided to the Commission in our submission of March 2019 is evidence drawn from reports from the Finkelstein media inquiry in 2013 from the Australian Competition and Consumer Commissioner's analysis from digital platforms over the past two years, information from the Department of Communications, industry data, spending on print and digital circulation, advertising, breakdowns between digital and print.  We've provided a wealth of data about readership, cross-platform readership, bureau of circulation data, enhanced media metrics and information from the Neilsen and Roy Morgan organisations.


In addition, we've provided information about the wave of redundancy and job losses that have affected this sector since 2012, but which in effect, had its beginnings in the global financial crisis of 2008.  We have finally presented a range of academic studies from the University of Melbourne from the Tow Centre at the University of Columbia, the University of Canberra and its digital news reports which are now a fixture within this sector and published reports from the Centre for Media Transition at the University of Technology in Sydney.


We've produced three witness statements to the Commission, Ms Camarri is going to be examined shortly this morning.  I won't canvass anything in Ms Camarri's statement. Christopher Knauss, an employee of the Guardian Australian and prior to that at the Canberra Times for six years, just to touch on a couple of points from his witness statement that at the Guardian they adopted a deliberate strategy of no physical publication in order to keep costs down.  That was the company-wide strategy that having worked in both print and online, they job of journalists is the same.


In paragraph 22 of Mr Knauss' statement, he says that:


Both print and online journalists now operate from the same standpoint, getting the news out online fastest and update content as event evolve.


Finally, at paragraph 24, Mr Knauss says that:


Without recognition of the additional time we work, creating more content with fewer resources, we will lose overtime hours into the ether.


Peter Fray is an esteemed figure in the Australian media sector, editor-in-chief and publisher of the Sydney Morning Herald and perhaps the masthead's most turbulent time with respect to the reorganisation of work and of course, redundancies.  Mr Fray, in his statement refers to the need to constantly cut costs and create a digital first culture.  This led to integrated workstreams for online and print, but with online taking precedence.


He says that all news publications of note have integrated, digital and online processes.  He also reflects that newsrooms are now smaller and less hierarchical than before.  Finally, he says that the changes he witnessed and now assesses in his academic position at the Centre for Media Transition are irrevocable.


MEAA submit that we've provided a wealth of information in support of the changes that we seek.  We've made merit arguments; some may have been made indirectly and with some subtlety perhaps, but they are present in our submission.  We note that the Fair Work Act and the Bench itself requires that no particular primacy is attached to any of the considerations set out in section 134(1), the modern award's objective and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award.  We have not adopted a ticker box approach to the changes that we have submitted.  Ultimately, MEAA's satisfaction of those tests is for the Full Bench to assess.


To briefly address the particular changes that MEAA has put forward, in parts one and five of the award MEAA seek the removal of distinctions between what appear to be workforces, print and digital, when in fact these operations are now integrated or digital only.  We seek to retitle newspapers as new publications.  We see no place for retaining what are deemed associated online publications.  Online publications now overwhelm print publications, where in fact, print publication has been maintained.


In recognition of the false divide between print and digital we propose the application of Part 5 of the award to all editorial employees, much of our argument rests upon shifts in circulation from print to digital, the dominance of the digital-first culture now present in newsrooms and magazines throughout Australia.  Our submission points out from the University of Canberra and its digital news report of 2018, that 2018 was the first time that access to online news overtook traditional offline sources, including television.  That includes television, newspapers and other ancillary sources.  We presented information about the substantial rises in digital website readership and of course, large falls in printed media.


Why is digital taking over?  It is vastly cheaper.  It is more responsible and consumers now demand round the clock updates.  But it has required investment in new equipment, the abandonment of printing presses and reskilling of the editorial workforce.  Today, no media organisation of any scale in our submission, has a policy other than digital first.  Editorial workforces now work differently to when the Journalists' Award was constructed in 2009.  Digital comes first and methods of work have been overhauled to reflect this reality.


Editorial employees are digitally aware in terms of both the tools they use to produce stories and the way in which they are disseminated.  Content is increasingly driven by audience metrics and my audiences that expect constant updates as stories of interest, no matter what time of day.  MEAA's proposed variations with respect to removing the distinction between print and digital employees and equalising all editorial employees' award entitlements is consistent with the modern awards' objectives set out in section 134 of the Act, particularly with regard to provisions in subsection 1 of providing a fair and relevant minimum safety net of terms and conditions.


It's also relevant, we say with respect to online only employees, inability to access part 5 of the award, they being parts 3 and 5 of the most recent Commission-published exposure draft.  That the Commission have regard to section 134(1)(D)(a)(i) to (v) as does our proposal to have weekend shift penalties.  That provision that I just referred to deals with the need to provide additional remuneration for employees working overtime, working unsocially regular or unpredictable hours, working weekends and public holidays and employees working on shifts.


With respect to a fair and relevant safety net of terms and conditions, MEAA say the scale of change from analogue to digital within the media industry means that an award that treats online employees as different, and lesser than their print colleagues, will lose relevance over time.  It boils down to one proposition in our opinion, your Honours and Commissioner, that if print publication stops and we don't have a precise view on when that may occur, but if it does stop, part 5 of the modern award will not apply to any editorial employee.


With respect to the relative living standards and the needs of the low paid at section 134(1)(a) of the Act, MEAA seek leave to hand up a bundle of documents concerning average weekly earnings, media pay and clause 14 from the current modern award.  I might just very briefly explain what this bundle of documents is to the Full Bench.




VICE PRESIDENT HATCHER:  Well, is there any objection if I mark it as an exhibit, no?  All right, I'll just call it the MEAA document bundle, marked exhibit 1.



MR CHESHER:  It's essentially three documents, the first being the most recent ABS publication on medium weekly earnings.  The second page of the bundle is average weekly earnings as at November 2018.  The final two pages are clause 14 of the modern award as now in force.  I'm going to spend a lot of time on this.


What those documents reveal is that medium weekly earnings of all Australians was $1066.  But the medium earnings of full time workers was $1320 per week.  Average weekly earnings in 2018 were $1604.90 per week.  Transposed or compared against to clause 14 of the modern award, five of the 13 classifications are below the medium wage for all Australians.  Nine of the 13 classifications are below the medium full time wage.  12 of the 13 classification levels are below average weekly ordinary time earnings.  In addition, cadet or trainee earnings are substantially beneath those amounts that I've just drawn to the Commission's attention.


VICE PRESIDENT HATCHER:  What's the significance of that?


MR CHESHER:  The significance of that your Honour is with respect to the relative living standards and needs of the low paid in section 134 of the Fair Work Act.  We are not aware of a unified definition of low paid within the Australian economy.


VICE PRESIDENT HATCHER:  Well, there's a well-established definition used in the annual wage review, and that's - well certainly not medium wages anyway; it's a percentage of that.


MR CHESHER:  I do - there is an additional hand-up your Honour that is relevant to the point that I'm seeking to make.  The general proposition, your Honour, is that as a result of redundancies over the past six or seven years, that there has been a substantial exiting of senior, more highly paid news and media personnel from the media sector.  The bulk of employees that have remained and those that have attained positions since that time, have tended to occupy the lower classifications.


Now, I readily admit that it is impossible to provide you with accurate and reliable data with respect to that beyond the second hand-up that I seek to table.


VICE PRESIDENT HATCHER:  What's this, a journal article?


MR CHESHER:  It's an academic study - abstract of an academic study that was completed.


VICE PRESIDENT HATCHER:  All right.  So, with no objection, I'll mark the article headed Working for less: the aftermath for journalists made redundant in Australia between 2012 and 2014 as exhibit 2.



MR CHESHER:  By way of introducing this document, I draw the Commission's attention to page 122, which is approximately four pages in.  It's the page beginning 'The survey rationale and design'.  I now draw your attention to the final sentence on that page, which is really just a description of what this study was about.  That is, that a total of 266 of around 500 journalists surveyed within this academic study, answered the questionnaire for a response rate of 53.2 per cent.


So, in essence, it's a study of 266 people who took redundancy in the second wave of major restructuring within the journalist sector in 2012.  That being the year that then Fairfax Media announced the loss of 1900 in its Fairfax of the Future program.


If the Commission can please turn the page to page 123?  I've marked a number of these propositions:


More than half of the respondents (that being the 266 that I mentioned) had more than 25 years' experience at the time of their redundancies.  Fairfax and Newscorp accounted for more than 80 per cent of the redundancies.  More than three quarters of respondents took a voluntary redundancy.  A similar proportion took redundancy from the full time media position.


COMMISSIONER BOOTH:  Mr Chesher, it seems the top paragraph of that page says that of the 266, 41 were subsequently excluded, so there is a final sample of 225.  Is that - - -


MR CHESHER:  I stand corrected.  I'm sorry about that; that is correct.  The next page makes that clear at the bottom, where it says N = 225.  With respect to page 124, you'll see that my crude mathematics reveals that of that 225 cohort that 202 of the former journalistic employees surveyed, had between 10 and 40 plus years of experience in the media sector.  I should place on the record that it is MEAA's opinion that - and this would be shared by Ms McInerney that the vast majority of not only MEAA members, but editorial employees at large that exited the sector from 2012 and following, occupied the more senior ranks of the journalistic profession.


If I can take the Commission to page 127 and the final paragraph that says:


The survey demonstrates that incomes fell considerably for people who continued to work as full time journalists after redundancy.


Table 8 which appears on page 128 indicates that of the 174 who were employed full time pre-redundancy, 105 people, 60 odd per cent - - -


VICE PRESIDENT HATCHER:  Sorry, I'm lost.  Where are you reading from now?


MR CHESHER:  I'm sorry your Honour.  I'm reading from the final paragraph of page 127.  It has table 6 at the top.


VICE PRESIDENT HATCHER:  I see, yes thank you.


MR CHESHER:  That 105 people, $100 000 or more, however, only 14 of the 48 people who continued to work as full time journalists post redundancy were earning comparable incomes that they'd received beforehand.  You'll see on page 128 - this is my final point from this study, that the study concluded that younger people were more likely to be still working in journalism after redundancy.  We asked all 225 respondents to describe their current work.  16 of the 19 respondents aged between 18 and 35 or 84 per cent were still working within journalism.


That maybe a circuitous if not torturous route to revisiting the point that you quizzed me about before, your Honour.  But again, with respect to clause 14 and perhaps I can address this in a brief closing submission.  But the propensity of appointment within the media sector, certainly in MEAA's submission, is within band one, that being positions that are paid between levels one and seven.


A significant discrete part of part 5 of the award concerns shift penalties.  We seek to remove the award provision that says "Country non-daily employees cannot access weekend penalty payments".  We'll be examining Ms Camarri and Mr Eales from that sector later this morning.  For the record, however, MEAA consider that this request is consistent with the modern awards objective with regard to subsection 1 and subsection 1(D)(a).  Subsection 1 dealing with a fair and relevant minimum safety net of terms and conditions and (D)(a) covering those areas which I canvassed earlier concerning overtime, unsociable hours, weekend and public holiday work and shift work.


VICE PRESIDENT HATCHER:  How did it come about that online publications were exempted from these provisions in the first place?


MR CHESHER:  Your Honours and Commissioner, my assessment of the transcript and decisions from 2009 reveals, in my opinion, quite sparse attention being drawn to the question.  It appears that the online sector was not actively represented in the course of those proceedings.  Nonetheless, the representatives of the established media companies did make short submissions to the effect that the online sector, being relatively new, should not have the full suite of award provisions thrust upon it.  They characterised - and we don't agree with this - that it was a sector that was, in other words, award free and that applying part 5 of the award would be a step too far for the Commission to take.


In the transcript from that period - I forget which month your Honour, but it was quite specifically addressed as a half-way house.  There's not a great deal more that I can - well, I can bore the Bench to tears with reading every bit of transcript from that period, the that is the essence.  They were not represented; it was considered by the Bench that it would accept the proposition put forward by the employer advocates.  I have to say in fairness, that I could not locate a MEAA submission on that point at the time.  But that was the thrust of what was said, sparse as it was.


VICE PRESIDENT HATCHER:  So, do I take it from that, that online publications weren't award covered prior to them making of the modern award?  Is that the position?


MR CHESHER:  They were, and are only covered insofar as where there is a dominant print publication and it had an associated online publication.  The easiest expression is the physical (indistinct) of the Morning Herald, printed and smh.com.au.  The online publication certainly had other award provisions apply.  If the Full Bench has the current award at its disposal, the key provision is clause 4.10 at page 9.  That is:


Part 5 will not have any application to the following employees.  An employee employed on an online publication, other than those employees described in clause 3.2.


The description at clause 3.2 is a reference to "an employee employed by that employer on the print publication's associated online publication".  I think that helps characterise the half-way house that was put and promoted to the Commission in the middle of 2009.


VICE PRESIDENT HATCHER:  I was asking a different question.


MR CHESHER:  Sorry, your Honour.


VICE PRESIDENT HATCHER:  Were online publications award covered at all prior to the making of the modern award?


MR CHESHER:  I don't know the answer to that, your Honour.


VICE PRESIDENT HATCHER:  Just so I understand this, say the Sydney Morning Herald's online publication is covered by Part 5?




VICE PRESIDENT HATCHER:  But the Guardian or the Daily Mail would not be covered by Part 5?


MR CHESHER:  That's correct.


We say that our proposal, with respect to shift and weekend penalties of country non-daily newspapers is also consistent with section 3 of the Fair Work Act which, as the Bench knows, sets out the objects of that Act, which at part (D) of that section says that one of the Act's objects is to assist employees to balance their work and family responsibilities by providing flexible working arrangements.


MEAA further contend that the 10 days additional annual leave should be extended to all published media publication employees, predicated on the condition that the employer requires those employees to work all public holidays at ordinary rates of pay.  This is a long-standing provision within the traditional media sector where a significant number of employees are required to work during public holidays and produce content for their employer and for their readers.


With respect, we submit that this may not fall into the category of a major variation, conditioned as it is on the employer requirement.  We're not aware either of any opposition being brought forward by our friends to this proposal.  MEAA seek to modernise editorial job classifications.  We say that this is a mechanical and common sense proposition, recognising the fluidity of titles in the published media sector.


We've only sought to update, not extent, the type of positions that fit under the definition of editorial employee.  However, if there are specific objections, and I believe there may be in the submissions of our friends, if there are specific objections to individual titles on the grounds that our amendments reach further than we believe, we'd be pleased to reconsider those particular position descriptors.


In addition, MEAA seek to - what we consider to be the anomalous prohibition on appointment at two positions above level 10 and level 11 at a range of newspaper types.  We say that this is an artificial constraint with no plain historical justification, other than those levels aligned with the levels at which an employee was exempted with aware coverage.  We submit that appointments to these levels would be very rare, but that they should not be ruled out.


We seek the removal - - -


VICE PRESIDENT HATCHER:  Did you say they align with the exemptions from award coverage?




VICE PRESIDENT HATCHER:  Where are they - the exemptions from award coverage?


MR CHESHER:  The exemptions that I refer to, your Honour, are again at clause 4.10 of the modern award.  I draw your attention to part (b)(ii) and (iii).  Now, if the award stays as is, with respect to our submissions on exemptions, your Honour, those provisions should probably be retained.  But if our submissions are accepted on the question of exemptions from coverage of the modern award - - -


VICE PRESIDENT HATCHER:  Just so we don't get at cross-purposes, these aren't exemptions from award coverage, they're exemptions from certain provisions of the award.


MR CHESHER:  Yes, that's right, your Honour.  But theoretically and perhaps in practice, the way that clause 4.9 of the modern award is structured, they can plainly be exempted in accordance with the quite extensive provisions from 4.9(a) through to 4.9(n).  So, we've sought to address that on its merits, your Honour, that it just stands.  It was in a predecessor award, but it stands as an unreasonable prohibition on an appointment to a higher level.


VICE PRESIDENT HATCHER:  4.9, how do these provisions work?  That is, how do you say it doesn't cover on a metropolitan daily newspaper, Victoria, 10 positions?


MR CHESHER:  Well, it's not position, your Honour.  We seek to address that and I'm coming to that as I wrap up.


VICE PRESIDENT HATCHER:  I mean that could be any 10 positions, couldn't it?


MR CHESHER:  That is MEAA's submission, your Honour.




MR CHESHER:  The second to last, your Honour, MEAA submit that the awards provisions with respect to specialist publications be expunged from the award.  In context, your Honour, this is not a high level request of my organisation.  It is one borne purely of our assessment that these provisions are intensely anachronistic and have never been used and probably not been used for more 20 years.


The award does define a specialist publication but it does no more than really say that it's a publisher with fewer than 20 employees.  It's readily confused in our experience, with the magazine divisions of the modern award and that's unhelpful insofar as employees at magazines are entitled to a greater range of the modern award's provisions than those in specialist publications.


Your Honours will also see, and again, I draw your attention to the modern award at clause 4.1(3) - sorry, I've lost my place, I apologise for that.  But the point that I was going to make is that online, specialist publication employees are entitled to no award coverage at all.


VICE PRESIDENT HATCHER:  Where does that come from?


MR CHESHER:  I can find it, your Honour, if I'm just - - -


VICE PRESIDENT HATCHER:  Is that 4.9(m), is it, of the agreement?  No, that's more than 20 employees.


MR CHESHER:  No, I can - I'll get there in about 30 seconds, your Honour.




MR CHESHER:  It is clause 23 of the modern award that being the clause dedicated to specialist publications and my point is that the minimal provisions that pertain to employees of so-called specialist publications, my point is drawn from the note at the end of clause 23.2, which is:


This clause does not apply to specialist online publications.  These are exempted from part 5 hours of work and related matters by virtue of clause 4.10(a).


MR CHESHER:  In other words, they're - - -


VICE PRESIDENT HATCHER:  So, they're not excluded from coverage of the whole award; they excluded from coverage of part 5.


MR CHESHER:  No, from part 5.  I stand corrected, your Honour.  Sorry about that.


MEAA has reviewed the pre-reform award, that is the Journalist Specialist Publications Award 1997.  We give account of the respondents, there were 412.  We did a desktop analysis some months ago; we've not presented that to the Commission.  We apologise for that.  But the clear majority of those responded appear to no longer be in business.  That is, that they no longer hold an Australian Business Number.


A range of the publications, because the schedule to that pre-reform award listed publications and also organisations that produce organisations.  But publication titles that had been maintained, like the Weight Watchers' magazine, for example, those have now moved to established custom publishers.  Publishers who employ scores, if not hundreds of editorial employees.  It seems that the specialist publication sector, lacking definition, as we say it does, might have suffered the very first wave of media rationalisation, perhaps long before the modern award was formed.


I could seek no submissions during 2009 on the question of specialist publications and I believe that the Full Bench of the time accepted the frankly, uncontroversial proposition that the modern award should carry over the provisions from the 1997 award without question or review.


Nonetheless, we say that there's no ongoing utility for the award to contain these specialist publication provisions.  We say that maintaining those provisions is inconsistent with modern awards objective insofar that the award needs to provide a fair and a relevant minimum safety net to employees.


Having put this forward and identified that it's not among MEAA's highest priorities, we do indicate our willingness to the Commission to agree to a transition period applying to the expungement of that part of the award, lest some party be especially aggrieved by our proposed variation, if the Commission so wishes.


The final point of MEAA's submissions, deals with the question raised by your Honour a short while ago, and that concerns employees exempted from coverage, in part or in full from the modern award's provisions.  The award, as presently drafted, provides considerable scope for low and mid-range and editorial employees to be excluded from award coverage.  The test for exemption, we submit in the framework of the award, is non-existent for employees other than editors, editors in chief and chiefs of staff.  It is limited, as your Honour indicated earlier only by the numbers.  We say that pre-reform awards did better.


Now, to make that point to the Bench and to our friends, I'd just again draw attention to clause 4.9 of the award.  Let's just look at 4.9(b)(i) that is, to be read:


In addition to an editor, editor in chief and chief of staff, that on a national metropolitan daily newspaper, six positions.


So, taking it to nine in effect, can be exempted from award coverage.  That formulation or formula is applied repeatedly throughout clause 4.9 and that's that formula that we wish to contest.


VICE PRESIDENT HATCHER:  Was this in your draft?  Your draft variation operates by reference to the exposure draft, but I thought the one attached to your submission retained all this, apart from moving the references to newspapers.


MR CHESHER:  I'm just looking at it.  No, your Honour again, that's my third strike for today.  It is - we didn't flag that in the exposure draft that we submitted in March 2019.  It was however, addressed in our covering letter and subsequent submissions to the Commission that we sought the imposition of a test governing exempted positions which would have the effect of challenging, if not eliminating the enumeration of those additional positions that are set out throughout clause 4.9 of the current award, and clause 4.4 of the exposure draft.


To assist the Commission - - -


VICE PRESIDENT HATCHER:  Well perhaps, can you do this?  Can you file a draft determination which operates by reference to the existing award, not the exposure draft which sets out in full everything - every alteration that you see?




VICE PRESIDENT HATCHER:  Can you do that in say, seven days?


MR CHESHER:  Yes, I can, your Honour.


But the central proposition your Honours and Commissioner, is at 4.4 of the introduction of 4.4 of the exposure draft that we did submit in March of this year and that is - and our friends understand this, I believe, that the award does not cover employees, employed in the following positions.  And then we've added the text:


...who occupy senior managerial roles on an ongoing basis and are classified and not paid less than level 11 of the award.


That being level 11 in clause 14 of the award.  That annual salary by my calculation is $74 058.40 per annum.


But are they - I mean persons occupying senior managerial roles, do they fall within the classifications in the first place?


MS MCINERNEY:  I can answer that, if you'd like.  They certainly do on smaller publications.  So where they exist, they exist in suburban newspaper contexts or regional daily contexts or country non-daily context.  Certainly, in the print areas and as you get into the digital space, are often much more lowly classified in terms of pay and the classifications then are their pre-counterparts would have been 10 to 15 years ago.


VICE PRESIDENT HATCHER:  Well, the award covers people working as journalists.




VICE PRESIDENT HATCHER:  Is a person working as a manager in a publication, working as a journalist?  That's what I'm asking, because it seems to me if they're not working as a journalist, they're not covered by the award in the first place.


MR CHESHER:  It's not clear-cut, your Honour.




MR CHESHER:  It's just not that clear-cut.  It doesn't have a definitive yes or no answer in our experience.


VICE PRESIDENT HATCHER:  But do you seek to retain 4.9(a) about the editor, editor in chief and chief of staff?


MR CHESHER:  Yes, we don't contest that at all.




MR CHESHER:  That stands us - - -


VICE PRESIDENT HATCHER:  Well, in terms of the smaller publications that were just mentioned, do they have provisions of that description?


MR CHESHER:  In our experience, your Honour, yes, they do have editors and editorial directors in the enterprise agreements attached to the Australian magazine sector.  They're quite extensive provision restricting coverage of those agreements.  Well, rather exempting those senior employees who have defined editorial roles either for major titles or across major titles in the instance of the photographic director somewhat occupying that kind of position.  Yes, that nomenclature, if you like, is common place within the published media sector.


As I said a short while ago, the monetary threshold that MEAA proposes of shy of $75 000 a year.  We note that the other modern award that covers the journalists, the Broadcasting, Recorded Entertainment and Cinemas Award 2010 provides thresholds that are substantially higher than that.  We say that that addresses the question of there being a monetary threshold, that there is precedent for it.  Not only in that award, but in other modern awards that we listed in our submissions in April of this year.  We say that it is modest and that it's reasonable in the circumstances.


Our friends say that our proposal with respect to exemptions is a bit general and a bit imprecise, probably more than that.  But the language that MEAA seek to use in advancing these changes is the language that was endorsed by this Commission and its predecessor bodies for over now 100 years, starting with Isaac J in 1917.  This has been a well-litigated area between the parties.  It hasn't exploded into warfare which it did resemble in the 20th century since around about 1982 culminating with a Full Bench decision in 1984.


MEAA accept that there is a role for exemption provisions.  We seek however, that there should be some test applied to those who are exempted from award coverage.  Just one small historical aside, this was all the genesis of these disputes was in the period where to be a member of MEAA meant that you - or the Australian Journalists' Association, meant that you couldn't be exempted, and if you were exempted you couldn't be a member of the Australian Journalists Association; never the twain shall meet and the law evolved from that period.


It is true that the terms senior and managerial are quite plain and we've deliberately advanced such plain language.  We haven't sought to wrap the test for exemption in a range of criteria and the reason we do that is that the Full Bench in 19983 said that it considered that there are dangers in attempting to laydown definitive rules against which every application for exemption should be judged.


The Full Bench then carried on - not carried on.  But Full Bench then said that:


In our view the position should only qualify for exemption if it is shown conclusively that its occupant is substantially occupied on a day to day basis with top level management functions and consequently is severely limited in any writing for the publication.


We concur with the Full Bench's determination from that period.  This may be the first period on record where we've said that we support that decision.  Nonetheless, the language that's criticised by our friends representing nine and others, is the language of the Bench and the language of history.  It worked satisfactorily through much of the 20th century and we say some of it needs to be restored.  It is functional language that has a clear meaning in our submission.


MEAA submit that if the exemption arrangements stay as they are, then employees in mid-level editorial positions may be exempted from award coverage and lose the benefit and the rights of that coverage.  Should this occur, we say that that puts them outside the protection of critical areas of the Fair Work Act.  For example, exempted persons will have no access to additional remuneration for overtime.  Shift work, working irregular or social hours provided by section 134 and they would be denied coverage of minimum safety net of terms and conditions of the modern award itself.


If that pleases the Commission.


VICE PRESIDENT HATCHER:  All right.  Mr Crilly and Mr Dudley, do you want to make opening submissions at this stage, or shall we go straight into the evidence?


MR CRILLY:  I'm content to go straight into evidence, your Honour.  We can open briefly, but it seems to us, much of what we might say is by way of reply and can be dealt with compendiously in closing.




MR DUDLEY:  I agree, your Honour.  I'm happy for my friend to call his witnesses.  I'll make a brief opening and we'll call our witnesses.


VICE PRESIDENT HATCHER:  All right.  Mr Chesher, you have the statement of Peter Fray; he's not required for cross-examination, is that right?


MR CHESHER:  I do your Honour.  I'll seek to tender the statements of Mr Fray and Mr Nous.  You may need to give me a moment to identify those documents.  Do you require them to be handed up, your Honour?


VICE PRESIDENT HATCHER:  No, no.  We have them.  Unless there's any objection, the statement of Peter Fray dated 1 May 2019 will be marked exhibit 3.



VICE PRESIDENT HATCHER:  The statement of Christopher Knauss dated 4 June 2019 will be marked exhibit 4.



VICE PRESIDENT HATCHER:  And then you'll call Ms Camarri, is that right?


MR CHESHER:  Yes, that is correct, your Honour.  We did, in anticipation of what we thought would be the probably timing of this hearing, ask that Ms Camarri be available from 10.30.  I'm happy for us to - - -


VICE PRESIDENT HATCHER:  No, that's fine, we'll adjourn and resume not before 10.30.


MR CHESHER:  Thank you your Honour.

SHORT ADJOURNMENT                                                                  [10.01 AM]

RESUMED                                                                                             [10.37 AM]


VICE PRESIDENT HATCHER:  Right, is the witness ready to give evidence?


MR CHESHER:  Yes, your Honour.


VICE PRESIDENT HATCHER:  Right, can she come forward?


MR CHESHER:  She's on the telephone, your Honour.


VICE PRESIDENT HATCHER:  On the telephone, all right.




VICE PRESIDENT HATCHER:  Ms Camarri, are you there?


THE ASSOCIATE:  No, no, dialling now.




THE ASSOCIATE:  Please state your full name and address.


MS CAMARRI:  Samantha Ellen Camarri (address supplied).

<SAMANTHA ELLEN CAMARRI, SWORN                                  [10.38 AM]

EXAMINATION-IN-CHIEF BY MR CHESHER                            [10.38 AM]


MR CHESHER:  Ms Camarri, can you please inform the Commission of your place of work and position title?‑‑‑Yes, I work at the Wimmera Mail-Times in Horsham and my position is photographer.


Do you have a copy of your statement?‑‑‑Yes, I do.


Do you have any amendments or corrections that you wish to make to that statement?‑‑‑No, I do not.

***        SAMANTHA ELLEN CAMARRI                                                                                                XN MR CHESHER


Ms Camarri, how many photographers - - -


MR CRILLY:  I'm sorry, your Honour.


VICE PRESIDENT HATCHER:  Ms Camarri, is that statement true and correct to the best of your knowledge and belief?‑‑‑Yes it is.


I'll mark the statement of Samantha Camarri dated 10 May 2019, as exhibit 5.



MR CHESHER:  Ms Camarri, how many photographers were at the Wimmera Mail-Times in 2011 when you commenced work there and today?‑‑‑We had two full time photographs when I first started in 2015.  When the roll-out came, we fought hard to keep those two positions and we did, up until a couple of years ago where we lost one of the full time photographer roles, and so now there is only one left and that is me.


How many journalists work at the Wimmera Mail Times compared to 2011?‑‑‑From what I can recall in - when I first started, I think that we had about seven or eight full time journalists.  We now have six full time journalist positions at the Mail-Times.


Your statement at paragraph 5 refers to the introduction of the NewsNow system and you say that the newsroom was reduced by five full time equivalent positions.  Is that correct?‑‑‑Yes, to the best of my ability it is.  While they may not have all been journalists, they were certainly part of the editorial team that we lost.


I'll address the NewsNow program in a little bit more detail shortly, Ms Camarri, but the NewsNow have an application beyond the Wimmera Mail-Times?‑‑‑Yes, it certainly does.  As far as what I'm aware, it is Australia-wide, but most certainly I know for certain it is in our editorial group which is Victoria southwest, New South Wales that it has been rolled out in.


Is the Wimmera Mail-Times the only masthead within the Australian community media framework that you provide work for?‑‑‑Full time currently, yes it is, but - - -

***        SAMANTHA ELLEN CAMARRI                                                                                                XN MR CHESHER


My question Ms Camarri - I'm sorry to interrupt you, but do you provide services to other mastheads within the group?‑‑‑Not currently, no.  They may use our work, but I don't - on a full time basis, I don't work for anyone else.


VICE PRESIDENT HATCHER:  So what's the group?


MR CHESHER:  The group, your Honour, is the Australian Community Media which was approximately 120, 140 mostly regional titles, some agricultural and rural titles thrown in.  That's the group.  But the group in the context of Ms Camarri's statement, I believe is in connection with the Victorian region and southwest New South Wales.  Is that correct, Ms Camarri?‑‑‑Yes, that is correct.


How many days each week to you normally work?‑‑‑Five days out of the seven is what I work.


Ordinarily, which days would you work across those five?‑‑‑Yes, most of the time it will be Tuesday to Saturday that I will work, but with certainly busier periods such as finals or big events, it can be any of the five days - any five days out of the seven, including Saturday and Sunday.


Can you outline for the Commission, what would constitute a typical working day in the performance of your work?  Number of jobs, travel time?‑‑‑Yes, my day varies.  There is no set day that we continuously have.  But I can range from having three to four jobs to five to eight jobs in a day.  Sunday is certainly quite - or busier than others.  You've got - we service quite a bit area in the Wimmera here, so I can travel anywhere from up to two hours in one direction for a job.  So, having that travel time between towns takes up significantly a lot of time.  I'll have a lot of single story jobs where it just requires one or two photos.  You'll got to meet someone and hear their story and get those photos, but there are also a lot of jobs that are events or big things where they require maybe 10 to 15 photos.  That certainly takes up quite a bit of time as well to get those.  You're coming back to the office and you're processing those photos immediately and getting them to the journalist or putting them, some lines straight away within building galleries, building picture pages for print and uploading them to the website and then publishing them on social media.


Would you say in your experience that the publication of photographs is now more prevalent in the news media sector now that digital operations - - -

***        SAMANTHA ELLEN CAMARRI                                                                                                XN MR CHESHER


MR CRILLY:  Your Honour, if my friend is going to lead further evidence in chief, he shouldn't lead the witness quite to this extent.  I've been indulgent to date, but it's not clear why this couldn't have been included in the written evidence.  And in any event, these are questions more in the style of cross-examination.


VICE PRESIDENT HATCHER:  If you might note that Mr Chesher.


MR CHESHER:  I'm happy to note that your Honour.  Returning to your statement, what is the seven day roster mentioned in paragraph 14 of your statement?  The seven day rotating roster?‑‑‑Yes, so a rotating roster for us means that all editorial staff can now work any of the seven days in a week.  It's no longer journalists working Monday to Friday and only photographers working weekends or sports journalists working on a Sunday.  Everyone now is required to work any of the seven days Monday to Sunday including Saturday and Sunday.  Whether you're a news journalist, a sports journalists or a photographer.


Does the Wimmera Mail-Times subscribe to a digital first publishing model?‑‑‑Yes, we certainly do.  That was brought out when they rolled NewsNow out in 2015.  So, we became a digital first platform.  Primarily what that means is that we work to an online platform and a digital deadline first.  Our print edition has now become second.  Our full focus is online and then secondary is print.


Is more work now produced online than in print?‑‑‑Yes, absolutely.  The circulation has gone down and as such, our paging has been reduced for our print edition.  This means that while we might not have as many stories going in print, we still have to continue doing the same amount of work and that now gets put online.  So, instead of having a 200 word limit on a print story, we now can write - the limit is endless, so say 1000 words online.  We'll put 200 words of that in print and put the rest online and we'll point to that.  It's the same as photos.  I'll go out to an event and get 10 to 15 different photos, but we'll only have room to run one or two.  Then we'll run the rest online so that people can still know that they can find those photos online.  We're still interacting with the community and putting everything on there.


Two more questions, Ms Camarri.  Paragraph 9 of your statement says that you work most weekends through the year.  Is there an off-peak period, that is, a period in which weekend work dissipates or disappears?‑‑‑No, there certainly isn't an off-peak period in the Wimmera.  Sport is the community's break and butter here, so we only have a number of days between football/netball season finishing and cricket and tennis season starting.  I might have one week off between those two seasons, but I'll continue working the cricket and tennis season throughout summer.  You'll have a couple of weeks off over the Christmas period where they break for Christmas, but then it's your big event and your inundation of tourists and holiday moments and hot weather, so celebrating at the pool.  It's those things that come in on those weekends instead of sport.  So there isn't as such an off-peak or low period where there isn't anything on, on weekends.

***        SAMANTHA ELLEN CAMARRI                                                                                                XN MR CHESHER


Thank you.  Finally, do you receive any overtime or penalty payments for the weekend work that you do?‑‑‑Certainly no penalty payments or any additional penalty payments for weekend work.  Our overtime is pretty clear in our newsroom and that it's preapproved and where necessary is that if worked, we do get that time off in lieu.  But certainly no additional penalty for weekend work.


Thank you Ms Camarri.


VICE PRESIDENT HATCHER:  So, Ms Camarri, just that last matter, I'm just trying to understand paragraph 20 of your statement.  So, is there an enterprise agreement which covers the Wimmera Mail-Times, or is it a bigger one that covers Australian Community Media?‑‑‑As far as what I'm aware, it's one that covers regional - sorry, country non-daily mastheads.  So, it's for all country non-daily editorial staff.


MR CHESHER:  Your Honour, I can assist there.  It's a Fairfax agreement, as Ms Camarri said, covering country non-daily newspapers.




MR CHESHER:  The bulk of that award is it incorporates the Journalist Published Media Award.


VICE PRESIDENT HATCHER:  What do you mean when you say we are covered by the award penalty rates schedule, Ms Camarri?‑‑‑That will be from what I can recall.  We do get late nigh or early morning penalties.  So we get a certain percentage from 6.30 pm until 8.30 pm if we work during those times and again, from 8.30 pm until I think, from what I can recall, it's 5.30 am if those times are worked.  That's across the seven days a week.  But as far as that's concerned, we don't get any additional weekend penalties on top of that.


Right, thank you.  Mr Crilly.  Ms Camarri, Mr Crilly from Rural Press and Nine is going to ask you some questions now?‑‑‑No worries.

CROSS-EXAMINATION BY MR CRILLY                                     [10.52 AM]


MR CRILLY:  Just a few questions, Ms Camarri.  You indicated to my friend Mr Cheshire, that you are employed as a photographer.  That's correct, isn't it?‑‑‑Yes, that is.

***        SAMANTHA ELLEN CAMARRI                                                                                                   XXN MR CRILLY


Part of your job, is it fair to say, is to take photographs of newsworthy events when they occur?‑‑‑Yes, it is.


Newsworthy events do sometimes occur on weekends, don't they?‑‑‑Yes, they do.


That is not new, is it?  Newsworthy events?‑‑‑No, it's certainly not new.


That's always been the case whilst you've been employed by the Wimmera Mail-Times?‑‑‑Yes, a lot more so - yes, definitely.


Thank you.  It's the case isn't it, Ms Camarri, that weekend work is less common for editorial journalists than it is for photographers?‑‑‑That's certainly not the case now.  It might have been the case maybe say 10 years ago or even when I first started in 2011, but we now have the majority of our editorial staff which include our four to six journalists, working a weekend to help cover those events where I can't get to.


I understand that they may work weekends, Ms Camarri, but it's correct isn't it, that they would work fewer weekends than a photographer would do?‑‑‑Not at the moment, no.


It's correct, isn't it, that the Wimmera Mail-Times is the first newspaper at which you've worked, as an editorial employee, as a photographer?‑‑‑Yes, it is.


You've worked throughout the entirety of your career as a journalist - as a photographer rather, haven't you?‑‑‑Yes, I have.


So, you've never worked for a daily newspaper, have you?‑‑‑No, I haven't.


So you have no direct experience of how work is done in daily newspapers, do you?‑‑‑No direct on the ground experience in a daily newsroom, no.


Thank you.  So, to put one final proposition to you, Ms Camarri, I put it to you that there's no basis for the opinion - I withdraw that, your Honour.  That's the cross-examination.


VICE PRESIDENT HATCHER:  Mr Dudley, did you want to ask any questions?

***        SAMANTHA ELLEN CAMARRI                                                                                                   XXN MR CRILLY


MR DUDLEY:  No, your Honour.


VICE PRESIDENT HATCHER:  Anything in re-examination, Mr Chesher?


MR CHESHER:  No, your Honour.  Might the Commission please excuse Ms Camarri?


VICE PRESIDENT HATCHER:  Yes, thank you for your evidence Ms Camarri, you're excused, which means you can simply hang up the phone.

<THE WITNESS WITHDREW                                                          [10.55 AM]


VICE PRESIDENT HATCHER:  That's all your evidence, Mr Chesher?


MR CHESHER:  Yes, it is your Honour.


VICE PRESIDENT HATCHER:  Right, so who's next, Mr Crilly?


MR CRILLY:  Yes.  I'd indicated to your Honour before that I don't necessarily need to open my case by way of submission.  I'm content to address any matters beyond the scope of what we've put in writing, in closing.


VICE PRESIDENT HATCHER:  Just so I understand your client.




VICE PRESIDENT HATCHER:  Is Rural Press separately owned from Nine, or is it - - -


MR CRILLY:  Yes.  So, both were formally subsidiaries - sorry, I should star again.



***        SAMANTHA ELLEN CAMARRI                                                                                                   XXN MR CRILLY


MR CRILLY:  The newspaper interests which are owned by Nine Entertainment Holdings and those which are owned by Rural Press ultimately were both formerly part of the Fairfax Media Group.  Fairfax Media then merged with Nine and as of 1 July of this year, those interests which make up the Australian Community Media Group have been sold to what is now Rural Press.


VICE PRESIDENT HATCHER:  Thank you.  But when they say we were sold, is that to some other media organisation, or is it - - -


MR CRILLY:  To a conglomerate of companies headed up by Mr Anthony Catalano who was formerly associated with Fairfax and Domain, not to an existing media conglomerate like News or what have you.


VICE PRESIDENT HATCHER:  All right, thank you.  That's all I wanted to ask.


MR CRILLY:  Sorry, your Honour, I didn't catch that?


VICE PRESIDENT HATCHER:  That's all I wanted to ask you.


MR CRILLY:  Yes, thank you.  As I've said, I don't propose to open at any length.  I only make three observations at this point that frame out case.  The first is that in our submission there's very little linkage between the matters that my friend has put to your Honours and, you Commissioner this morning, and the specific proposals which are advanced.  That's particular stark on the face of the written submission which has been filed.


Much of what has been said in that submission, although there are aspects of it with which we may take issue, are not hugely contentious.  It is certainly true that newspaper circulation and advertising revenue have decreased, that Australian newspapers have undertaken substantial redundancy rounds and that there are no fewer journalists working in the sector.  Australians are more likely than they were in the past to access news via websites or social media platforms.  There have been some changes to the way that newsrooms work as print and digital operations are structured.


MR CHESHER:  Your Honour, I might seek some clarification from the Commission.  Is my friend making his closing or opening submissions now?


MR CRILLY:  Opening.


VICE PRESIDENT HATCHER:  Thank you Mr Chesher.


MR CHESHER:  I do point out that that opportunity was afforded him before we broke.


VICE PRESIDENT HATCHER:  Just go on Mr Crilly.


MR CRILLY:  Thank you, your Honour.


Where we part ways with the union is on what any of this really means for the terms of the specific instrument, which your Honours are called upon to determine.  It's not an easy time to publish a newspaper, we accept that.  Mr Fray says in his evidence that the industry has changed irrevocably, but the question is how does that justify what's sought.  As to that, we say the union's case is curious in that it is advancing old solutions to new problems.


In the time when margins and thinner and newsrooms smaller albeit, expectations greater in terms of role and coverage, what it's suggesting is that we impose on digital operators and country non-dailies, which it's not previously had, weekend penalty rates, new sets of penalty rates.  They suggest that we should return to a framework for exemptions from the award that was determined in the time when awards were not safety net instruments, necessarily, when they were inextricably linked to the eligibility to be a member of a trade union and when the Commission had regard properly at that time, to matters which is today, certainly could not.


The same goes to the solution to an apparently bifurcated approach to print and associated online work, the solution to which appears to be to simply say they're one thing, but otherwise make no change to an award which was clearly developed on the basis of print operation.


To the extent the union has identified any real need for change, we deny that.  But in the alternative, its prescriptions don't do anything to assist in the award, together with the national employment standards, providing a fair and relevant minimum safety net of terms and conditions.  To that final point, it's trite that the Commission's task ultimately here, is to determine what terms of business is right for the award to include, such that it meets the modern award's objectives.


There's been very little commentary on that and very little probative evidence that goes to that about the way the work is in fact done, or the effects that these variations might have on employers and employees.  This review has been going for some time and in many cases, employers and employee associations, which have failed to meet that standard, have not obtained the variations sought and we say the same would follow in this case.


VICE PRESIDENT HATCHER:  I'm just to understand how your client's interests are affected by the application.


MR CRILLY:  Certainly.


VICE PRESIDENT HATCHER:  Your clients - it is physical newspapers and have a say online publications.


MR CRILLY:  Yes, so I can take your Honour briefly through the matters which are of concern to us.




MR CRILLY:  We've described them slightly different to the way that the union has.  The first concerns the question of exemptions, the claim essentially being as we understand it to be - to impose an additional limitation that one must fill a senior managerial role on an ongoing basis and be paid at least a grade 11 rate of pay.  That affects each of my clients.  Principally, it affects their metropolitan newspaper holdings but it has some affect on regional daily newspapers as well.


Each of them publishes what the award calls a metropolitan daily newspaper.  That arises because Canberra, Newcastle and Wollongong are deemed by the award to be metropolitan regions and Australian Community Media which is Rural Press is active in that space.  Rural Press only is affected by what we have called the maximum classification variation which is the claim to remove the limitation that a person on a country non-daily newspaper cannot be classified above level 9.  Or that a regional daily newspaper employee cannot be classified above level 10.


As to the variations in terminology which are sought.  The proposal that we not speak of newspapers and online associated publications and instead speak of news publications and treat them compendiously for purposes such as exemptions, affects both.  The proposal to extent the 10 per cent weekend penalty rate to employees on country non-dailies would affect only Rural Press and the proposal to extend the part 5 provisions of the current award dealing with overtime penalty rates and hours of work to online-only employees as they've been called, only affects Nine.


VICE PRESIDENT HATCHER:  So how does that affect Nine?


MR CRILLY:  So Nine, in addition to the publications associated with its newspaper mastheads also has online-only publications which predate the acquisition of Fairfax.  Nine.com.au, 9Honey, things of that nature.  So, Nine straddles both camps.  It is both - my friend called them legacy, but a traditional newspaper publisher and it operates in the more start-up focussed digital space, akin to my friends who represent the Daily Mail group.


VICE PRESIDENT HATCHER:  Clause 4.10 is exempt online-only publications from the entirety of part 5?


MR CRILLY:  4.10 your Honour, sorry?


VICE PRESIDENT HATCHER:  Yes, 4.10(a), the effect of that which means online-only publications, means that employees are exempted from part 5 in its entirety?


MR CHESHER:  Other than employees described in clause 3.2, which is those who work on associated publications.


VICE PRESIDENT HATCHER:  Yes, so online-only publications.




VICE PRESIDENT HATCHER:  Are exempt from part 5 in its entirety?




VICE PRESIDENT HATCHER:  So, that includes 19.1 which provides for a 38 hour week?




VICE PRESIDENT HATCHER:  I don't think this was intended, but clause 23(a) which deals with request for flexible working arrangements.


MR CRILLY:  Yes, and we've included in the written submissions that we don't object to that being reworked such that it applies.  I think that's a product of it having been inserted later where it makes sense.


VICE PRESIDENT HATCHER:  All right, and what's the - leaving aside the motive regulation, what do you say is the industrial justification for a journalist on an online-only publication having a different set of award provisions, compared to a journalist on the online arm of a legacy newspaper?  What's the justification for that?


MR CRILLY:  Twofold, your Honour.  The first is that they - at least traditionally and we don't necessarily accept that this is no longer the case.  They do operate somewhat differently because the digital operation has operated as an arm of a masthead which publishes to a schedule and the employees in many cases, are platform agnostic - they straddle both.  So, it's not necessarily akin to a situation with an online-only operation which publishes round the clock, isn't bound by deadlines et cetera.


The other is the nature of the businesses.  While of course, we accept that things have been rosier for the newspaper industry, these are still substantial enterprises.  They have, in most cases profit making enterprises and the way that they are structured is quite different from a small start-up which operates on razor thin cost margins.




MR CRILLY:  Well, in some cases, your Honour, in others - - -


VICE PRESIDENT HATCHER:  Well, the Daily Mail and the Guardian aren't small start-ups.


MR CRILLY:  They're not, but they confront similar issues in that it is no longer easy to make money in this industry and digital advertising revenue has not replaced the rivers of gold, as Mr Fray refers to them.


VICE PRESIDENT HATCHER:  Sure, but that answer has an implicit assumption about what the common mode of regulation should be.  I'm simply asking you a basic question as why - whatever the award provision should be, why should there be different provisions for different media sectors?


MR CRILLY:  And it might be, your Honour - I make no concession about this.  It might be a case could be made but there shouldn't.  We say that case hasn't been made out.  Were the Bench of a different view, alternatively, that it does not follow that you would make the variation my friend seeks, because that is a proposal to introduce again, what you might call legacy conditions.  They're conditions which were developed in the context of awards principally covering newspapers and magazines.  One would need to ascertain what is an appropriate structure.




MR CRILLY:  Unless, I can assist the Bench further, I will at this point, call Mr Andrew Eales.


COMMISSIONER BOOTH:  I've just got one question on the issue of deadlines.  In the submissions, I think although the Rural Press submissions, or it might have been in one of your witness statements, it was clear that there were deadlines in the online world.  For example, some things - a dozen things had to be done in the morning, for example.  So there was a very much a focus, I thought, in the material on perhaps different deadlines, but you couldn't say there would be no deadlines in the online world.


MR CRILLY:  That's true.  It's not the case that one simply publishes whenever one wants, in a way that would extend to the way that employees can choose to do their work.




MR CRILLY:  An employer may presumably and in most cases would, impose deadlines by which things are to be done, be that because a website should be updated a certain amount in order to attract continued interest or for some other reason.  The distinction is that when one deals with a newspaper which is to be printed early the next morning, you're dealing with a very fixed deadline of some time the previous evening, which occurs at the same time every day and is immutable.


VICE PRESIDENT HATCHER:  Right.  So, we'll get Mr Eales to come forward please.


MR CRILLY:  Mr Eales again, will be called by telephone.




THE ASSOCIATE:  Please state your full name and address.


MR EALES:  Andrew Paul Eales, (address supplied).

<ANDREW EALES, AFFIRMED                                                      [11.10 AM]

EXAMINATION-IN-CHIEF BY MR CRILLY                                [11.10 AM]

***        ANDREW EALES                                                                                                                           XN MR CRILLY




MR CRILLY:  Yes, Mr Eales, it's Stephen Crilly representing Rural Press.  I just have a few questions to ask you.  Could you please for the record state your work address?‑‑‑It's 2 Webster Street, Ballarat, Victoria.


Thank you and it's correct that you're employed by Rural Press Pty Ltd as its Managing Editor Victoria and South West New South Wales?‑‑‑That is correct.


Have you caused a statement to be prepared for this purposes of these proceedings?‑‑‑I have.


You have a copy of that statement with you?‑‑‑I do.


Is that a statement of five pages, 38 numbered paragraphs dated 26 July 2019?‑‑‑It is.


Are there any corrections that you wish to make to that statement?‑‑‑No, there is not.


Are the contents of that statement true and correct to the best of your knowledge and belief?‑‑‑Yes, they are.


I tender the statement, your Honour.


VICE PRESIDENT HATCHER:  All right, the statement of Andrew Paul Eales dated 26 July 2019 will be marked exhibit 6.



MR CRILLY:  Nothing further in chief.


VICE PRESIDENT HATCHER:  Mr Chesher.  So Mr Eales, Mr Chesher from the Media Entertainment & Arts Alliance will ask you some questions now?‑‑‑Sure.

CROSS-EXAMINATION BY MR CHESHER                                 [11.11 AM]

***        ANDREW EALES                                                                                                                   XXN MR CHESHER


MR CHESHER:  It might assist the Commission if I tender the attachments which were forwarded to Mr Eales and Mr Crilly yesterday afternoon, which deal with some of the question that I wish to put to Mr Eales.


VICE PRESIDENT HATCHER:  Does Mr Eales have access to those?‑‑‑I do.


MR CHESHER:  I believe he does, your Honour, yes.




MR CHESHER:  Just by way of introduction, your Honour, there are four documents in the bundle handed up.  The first, as you'll see, is six pages long.  It is a company-wide bulletin distributed in April 2014.


MR CRILLY:  I think the witness should attest to what it is.


MR CHESHER:  Mr Crilly says I shouldn't bother assisting the Commission here, your Honour.  So, I'm happy not to.


VICE PRESIDENT HATCHER:  We can see what the documents are, but if you just take the witness to the documents, as convenient to you and we'll see what happens.


MR CHESHER:  Very well, your Honour.  Mr Crilly, your employer has recently been acquired, hasn't it?  There's a transfer of ownership?‑‑‑There has.


And who is the purchaser of the former Australian Community Media Interests?‑‑‑I'm not 100 per cent sure of the business entity which has purchased our business.  There is directors who are involved, but I'm not across the detail of the name of the business that's purchased it.


Are you certain or uncertain that the views expressed in your statement as tendered to the Commission, are the views of your current employer?‑‑‑Yes.


How can you be certain of that Mr Eales?  You haven't been able to identify the company that's purchased Australian Community Media?‑‑‑No, no.  That's not correct.  I just said I didn't know the name.

***        ANDREW EALES                                                                                                                   XXN MR CHESHER


Well, I'll move on, your Honour.  In paragraph 9 of your statement Mr Eales, you say that resourcing at non-daily mastheads has evolved considerably in the past 10 years.  What does evolve considerably mean?‑‑‑It means that there have been changes in the way that newsrooms operate in the past 10 years.


Could you break down some of those key changes for the benefit of the Commission?‑‑‑Certainly.  Due to changes in audience habits have focused operations on serving audiences across multiple platforms, print, digital and other platforms.  Whereas 10 years ago, it would have been primarily, not for all of the mastheads, but for some of the mastheads, a print focused operation.


Would you say there's been a step-up in intensity of the work that is performed by editorial employees?  By that I mean journalists and photographers and allied persons in the sector?‑‑‑I would disagree with that statement.


Do you have fewer editorial employees across the titles that report to you than five years ago, Mr Eales?‑‑‑So, I wasn't responsible for the mastheads five years ago that I am now.  However, there was a reduction of editorial staff across Australian Community Media through 2015.


Mr Eales I take you to exhibit APE2?‑‑‑Yes.


That's an ABC article from March 2015.  You'll see it's clearly marked Mr Eales, that the opening paragraph refers to 80 voluntary redundancies at regional Victorian outlets.  Three paragraphs further on, it says a total of 62 jobs would be cut from newsrooms roles including management, subediting and photography with the balance made up of administration staff and some sales roles.  Do you have any reason to quibble with what was reported in the ABC and indeed, broadcast to the MEAA at that time?‑‑‑I don't recall he exact numbers in terms of what is included in that article, but it's ballpark.


Thank you, Mr Eales.  In the four years since the publication of that article, would you say that resources across the titles that report to you have increased or decreased?  By resources, I mean essentially human resources?‑‑‑There's been changes in operations, but I don't - I wouldn't have a number on whether or not that's been an increase or decrease.  There hasn't been any redundancy program at masthead level since I've been appointed to this position.

***        ANDREW EALES                                                                                                                   XXN MR CHESHER


I do put it to you Mr Eales, that there are no far fewer journalists, far fewer photographs, virtually no sub-editors and with respect to exhibit APE3, an umbrella article from March 2018, now far fewer senior editors across the company.  Is that your understanding?‑‑‑So, there were changes that subsequently you can see in that third document which was implemented in 2018 that related to an alteration in the structure of the managing editors.


Has your workload increased since that announcement was made, Mr Eales?‑‑‑I'm not responsible for more mastheads than I was previous to that announcement.


I'll take you to the final page of APE3 Mr Eales and the penultimate sentence from the communique from Mr Rod Quinn, the Editorial Director.


Group working and sharing content and resources across relevant areas and adjacent mastheads will also be unchanged.


Can you describe for the Commission's benefit what that sentence is in reference to?‑‑‑I'm not a hundred per cent sure.  Obviously, that's Mr Quinn's communication that went to the roots, so I'm not a hundred per cent sure exactly what was in his mind when he was talking about that.  But there are various practices that occur around sharing content across the ACN Group.


If I might just preface my question with a short proposition.  One of the essential features of NewsNow is that individual mastheads are less siloed, if you like and that there's a greater propensity for titles to share information, especially with respect to stand-alone websites that are allied to your print publications.  Is that a fair observation?‑‑‑There's certainly been an increase in content sharing conversations in the last five years in our group.


Mr Eales at paragraph 14 of your statement, you say that:


Workloads at non-daily mastheads have changed markedly in the past 10 years with staff now on average producing fewer pieces of content per day than in previous circumstances.


Do you hold to that statement, Mr Eales?‑‑‑I do, based upon my own personal experiences.


To be clear, the editorial employees reporting directly and indirectly to you are working no harder than five years ago?‑‑‑I would agree with that.


Thank you Mr Eales.  With respect to exhibits APE1 and APE4, I'd like to verify some of the content of those documents?‑‑‑Sure.

***        ANDREW EALES                                                                                                                   XXN MR CHESHER


Page 2 of APE1, point six and I'm referring to the descriptor distributed by Fairfax Media about the NewsNow program.  I'm just going to read an excerpt from point number six:


...that new things are expected of today's journalists.  We are committed to providing customised training to hundreds of regional journalists across ACN.  The NewsNow Academy will train journalists to use their new tools of trade and embrace a quality-first approach.  Training modules will include digital journalist, self-editing and other journalism essentials.


My first question Mr Eales is where is the NewsNow Academy located?‑‑‑It's not a physical building.


So, what is it?‑‑‑It is a structure of training which was instituted after the formation of this document which involved senior trainers, compiling a group of materials and structures around training onsite that effectively saw journalists inducted into the NewsNow Academy.


Turning to page 3 of APE1 Mr Eales.  It refers to digital first - sorry:


Reporters and photographers will be expected to file digital first to rolling deadlines.


What change did that mark from the period prior to the implementation of NewsNow?‑‑‑I think it's important to note that this document is dated 10 April 2014 and was formed by an editorial leadership that did not implement the project.  It was a change in editorial leadership between when this document was written.

***        ANDREW EALES                                                                                                                   XXN MR CHESHER


With respect to my question Mr Eales, I've just asked you about the expectation that people would file digital first to rolling deadlines.  Are you saying that in the latest manifestation of the company's management, that that is not a philosophy that's held sway?‑‑‑There was certainly evolution of the requirements for staff between when this document was formulated and subsequent implementation.  I guess what I can say around the requirements around digital, it was very clear to us from a business perspective, and I obviously wasn't involved in the conversations at that time, but to sustain our business at that time, we needed to respond more closely to audience habits and the audience habits were clearly digital.  They were consuming more of our content generally, outside of our group on digital platforms.  We certainly spoke in depth to our news rooms around the necessity to meet digital audience habits and that included a change from a single deadline which most newsrooms would have operated on print to being more responsive to breaking news scenarios.  For example, where previously, you know, 10 years ago we wouldn't have had the platform or the ability to respond to that breaking news on a digital platform.  We obviously have had that ability in recent years and it was very clear to us that we needed to inform and educate our teams about what that would mean for them in terms of responding to breaking news, as an example.


Thank you Mr Eales, I apologise for interrupting, but that enhanced ability that you refer to, must result in extra work for your employees.  From moving from one deadline to a rolling deadline where times of day and certainly, as you would recall in your 25 years' experience, that the filing to a single deadline meant downing tools.  And tools aren't downed at a regular time now, are they?‑‑‑I disagree with the suggestion that that has led to work intensification.  There's reasons for my stance on that.


VICE PRESIDENT HATCHER:  Mr Eales, can I just ask you some questions, so I understand the deadline concept with online publications better.  So is there any actual deadlines at all, or is there just continual updating of the pages as news stories come in?  How does it work?‑‑‑There's no edict around digital deadlines and it would be different approach in different newsrooms.  So, daily newsrooms would have greater capacity to respond to that and as a management team we would understand that and recognise that the expectations around that will be different to say a non-daily newspaper where we have traditionally fewer staff and so less ability to respond to those incidents.  So, there's not an edict across the board to say that at these times you must file a story.


It is very much managed mostly by editors and from a strategic point of view, managing editors to ensure that we've got some comfort around that. But our audience habits tell us, that there are particular times of the day where people consume on platforms at greater levels than what they might do at other times of the day.  We factor that also, into our considerations.  So, there is not an edict of saying at this point of the day you must file a story, however, we're very cognisant of the audience needs these days and that has been a consistent conversation in our newsrooms.


Well, I just want to strip this back down to basics.  So, if you have a daily regional newspaper, well what's an example of a daily regional newspaper?‑‑‑In terms of how often somebody would file a story?


No, just give me an example of where your organization has a daily online newspaper?‑‑‑Yes, so Ballarat Courier, and the Bendigo Advertiser.

***        ANDREW EALES                                                                                                                   XXN MR CHESHER


So the Ballarat Courier, what's the deadline structure for the Ballarat Courier?  Do you refresh everything every day?  Do you have specific times during the day where you put on a whole bunch of new stories, or do you just continually update it on an ad hoc basis?‑‑‑Yes, so it flows throughout the day, depending on the resources that we've got available for us.  We would have key times of the day.  So, for instance, as an example in Ballarat and this is a relatively unique example, because Ballarat's an hour from Melbourne.  They have a lot of commuters that would travel on a train in the morning to get to work in Melbourne at 8 am.  So we know that at 7 am in the morning, those commuters will be coming to the Ballarat Courier website and looking for press content.  That's an example where we would say okay, we know that there's an audience there, so if there are things that are available to us and we've got a resource available to us, then let's try and meet that audience need.  It's more a strategy around focusing on those kinds of outcomes where we can identify reader habits rather than saying at 7 o'clock you must file a story.


For practical purposes, if a journalist is to file a story to make the 7 am edition - that might be the wrong word, when do they have to file the story by?‑‑‑It happens automatically.  They are able to produce a story and send it for publication on our website, effectively immediately.  There's maybe a minute or two between when the story is signed off for publication and when it will appear on the website.


Well, I understand that that's the technological answer, but I assume your journalists aren't working through the night.  So, for practical purposes for a story that's going to go up at 7 am, or in time for 7 am, when in practical terms are journalists filing stories for that?‑‑‑There would be in a daily masthead scenario a reporter, generally just one reporter out of that team that is rostered at either 6 am or 6.30 am and they would come in, in the morning, they would assess what is available, what's been breaking news from overnight.  They would gather the information for that story at that point and then they would publish the story.


When you say they gather the information, they're just pulling a story from somewhere else, are they?‑‑‑They're making phone calls or gathering information from email.  A lot of the police news, for instance, is emailed out to newsrooms and there will be contact details there for a senior officer.  So, if we do require further information, most of the emergency services are available at that time of the morning for major incidents.


They're coming in at 6 am to file a story by 7 am?‑‑‑In some cases, yes.


Thank you.

***        ANDREW EALES                                                                                                                   XXN MR CHESHER


MR CHESHER:  Just 30 seconds, your Honour; I'm just taking stock.  Mr Eales, I take you to page 4 of APE1.  At the bottom of the page - "will there be job losses"?‑‑‑Yes.


Second sentence onwards:


Given the changed production processes particularly around print, will no longer require the same dedicated onsite resources for editorial production including layout and copy subbing.


MR CHESHER:  What does that sentence mean?  Does it point to a reduction in human resources available across the titles that report to you, is my question?‑‑‑I think it points to a change in the production systems that were implemented at that time which allowed our newsrooms to publish content to both online and print platforms in a single story where previously, to publish to those platforms, newsroom staff would be required to do two different versions, two different creations of that story.  The system that was implemented allowed staff to publish simultaneously to print and digital platforms.  In some newsrooms, that meant that the requirement for subediting staff was reduced.


Yes, thank you Mr Eales.  That stands in considerable contrast to when you would have first started plying the journalist trade, does it not?  The reduction in subeditors has, certainly in MEAA's opinion, and I'm seeking your opinion now, perhaps been the single most affected subclassification within the editorial workforce in the period following 2010.  Do you share that observation?‑‑‑I do.


I now turn to APE4.


VICE PRESIDENT HATCHER:  Mr Eales do you - the document that's APE1, do you recognise that?  I thought you said earlier you recognised it as a 2014 ACN document, internal document?‑‑‑Yes, so I recognise it as a 2014 document and it may well have been distributed at the time, but there was considerable change that took place between the formation of that document and what was subsequently implemented in newsrooms.


Right, thank you.


MR CHESHER:  Six more questions your Honours and Commissioner.  Page 2 of APE4 Mr Eales.  At the very top you'll see I've very helpfully marked my points of interest for you in advance?‑‑‑Thank you.

***        ANDREW EALES                                                                                                                   XXN MR CHESHER


Additionally, the role may be required to produce content and perform other editorial tasks for a multiple titles and operating groups outside of the main portfolio as required and directed.


I should have prefaced my question or observation with MEAA believe this to be a final of a position description for a journalist for Australian Community Media, prepared, as is indicated on the document in 2015.  I accept there may have been some modifications since that time.  But we believe it to be a true document reflective of that period.


VICE PRESIDENT HATCHER:  Mr Eales, do you recognise this document?‑‑‑From 2015 - there's no doubt that there will have been changes subsequently to position descriptions but I'm not disputing that this an accurate document from 2015.


Thank you.


MR CHESHER:  Yes, the genesis of this document, your Honour, was that it was tabled in a dispute between MEAA and Fairfax at the time.




MR CHESHER:  I return to that sentence again, Mr Eales.  Does that not suggest that the role of journalist is going to have additional work responsibilities compared to the pre-NewsNow period?  It does seem to be evident from that sentence?‑‑‑I disagree.


Why do you disagree, Mr Eales?‑‑‑Well, the suggestion that the role may be required to produce content doesn't reflect the reality of what occurs.


Further down page 2 of APE4 Mr Eales, the last box on the right hand side which continues on to page 3 and describes a journalist's duties with respect to content?‑‑‑Yes.


Would you say that those expectations or criteria hold true to this day?‑‑‑No, they don't.

***        ANDREW EALES                                                                                                                   XXN MR CHESHER


In what way do they differ?‑‑‑So, for one example, the position description contained a reference to the typical agreed daily output, equivalent to six stories a day, two leads, two down pages and two briefs.  That's not an accurate reflection of the workload that - in terms of story quantity that reporters would produce.  So, that's one example.


What would be its modern day incarnation then, Mr Eales?  How may stories?‑‑‑Generally three to four.


Generally three to four?‑‑‑Yes, depending on the masthead and the day.  There will be days where there will be more than that.  There will be days when there's less than that.  The evolution of our content has been continual and so therefore, has been the requirements on our staff.  We simply do not require the same quantity of stories to meet our outcomes that we did in 2015 and certainly changed from when I started in journalism.


Finally, with respect to these exhibits, Mr Eales, page 5 of 5 of APE4?‑‑‑Yes.


You'll again see that I've helpfully marked for you the essential criteria of the ability to work flexible and irregular hours.  Why is that essential?‑‑‑There are some circumstances in our industry where we don't get to control what happens from a new point of view.  So, if there is - I'll use an extreme example here, a terrorist incident, that takes place outside of work hours, in one of the communities that we serve.  Our communities would have an expectation around us providing information in regards to that incident and therefore, we may well call on newsroom resources to help tell that story.  There are many clauses in local agreements which provide outcomes for staff in those circumstances to ensure that they're not worse off for that commitment that we make to our communities.


In paragraph 13 of your statement, you say that you often perform content counts to assess workloads.  I have two questions; how do you do this and do you consult with the staff whose content you are counting?‑‑‑So, we would consult with staff if we believed that there were irregularities in regards to that.  We have a system that allows me, for instance, as the Group Managing Editor the ability to access any story at any point of the day at any of the mastheads that I oversee.  So, effectively, every piece of content that is produced for our print on online platforms, I can see.


What system do you use?  Do you award more points to a longer deeper article, or someone recording the score at the local rugby union match?  Does that just count as one piece of content?‑‑‑We don't use story counts for those purposes to assess whether or not - we're looking at it from a complete point of view to ensure that the workloads that we have in our newsrooms are appropriate.  We don't use it for a performance management process where we would say to a person, you've only written two stories on that day, that's not good enough.

***        ANDREW EALES                                                                                                                   XXN MR CHESHER


I fear I know the answer to this Mr Eales, but I'm assuming that the content count that you perform reveals no uptick in workload despite your business being far more audience-facing, having rolling deadlines, having additional tasks built into the journalistic role, that your content count has not revealed any increase in the role of an editorial employee?‑‑‑No, it hasn't.


Finally, Mr Eales, what are the roster arrangements at country non-daily newspapers and do those rosters cover weekends?‑‑‑They do.


VICE PRESIDENT HATCHER:  Ms Camarri described a Tuesday to Saturday roster, would that be fairly typical for non-daily regional newspapers?‑‑‑The requirements are different between - so, within non-daily mastheads, we have in our group, my group, tri-weekly mastheads, by-weekly mastheads and weekly mastheads.  The roster requirements for those would be different.  So, I wouldn't say it's typical in the sense of a broader perspective, than the example provided by Samantha.


Mr Eales, in your career have you ever worked for an online only publication?‑‑‑No, I have not.


Thank you.  Any re-examination, Mr Crilly?


MR CRILLY:  One or two very brief points.

RE-EXAMINATION BY MR CRILLY                                            [11.49 AM]


Mr Eales can I just take you to the document marked APE2?‑‑‑Yes.


You'll recall my friend asked you some questions about the redundancies which are recounted in this story.  In that second paragraph you'll see that there are references to a number of mastheads.  What kind of a masthead is the Bendigo Advertiser?‑‑‑It's a daily masthead.


What about the Warrnambool Standard?‑‑‑A daily masthead.


And the Border Mail?‑‑‑A daily masthead.


Thank you.

***        ANDREW EALES                                                                                                                        RXN MR CRILLY


VICE PRESIDENT HATCHER:  Right, thank you for your evidence Mr Eales, you're excused, which means you can just hang up the phone.

<THE WITNESS WITHDREW                                                          [11.50 AM]


Mr Chesher, do you want us to mark this bundle?


MR CHESHER:  I would, your Honour.


VICE PRESIDENT HATCHER:  Yes, is there any objection?


All right, we'll call it the second MEAA bundle.  That will be marked exhibit 7.



All right, who's next?


MR CRILLY:  Before we transition from Rural Press to Nine, there's another statement which Rural Press filed on Chad Lee Watson dated 8 July 2019.  Mr Watson has not been required for cross-examination.  I tender the statement.


VICE PRESIDENT HATCHER:  All right.  The statement of Chad Lee Watson dated 8 July 2019 will be marked exhibit 8.



MR CHESHER:  I call Kerri Elstub who is present.


THE ASSOCIATE:  Could you please state your full name and address.


MS ELSTUB:  Kerri Elstub, (address supplied).

<KERRI ELSTUB, SWORN                                                               [11.51 AM]

EXAMINATION-IN-CHIEF BY MR CRILLY                                [11.51 AM]

***        KERRI ELSTUB                                                                                                                             XN MR CRILLY


MR CRILLY:  Ms Elstub, it's correct, isn't it you're employed as the Digital Editorial Director of the Nine Entertainment Company?‑‑‑Yes.


In that capacity have you caused to have a statement prepared for the purpose of this proceeding?‑‑‑Yes.


Do you have a copy of that statement with you?‑‑‑Yes, I do.


Is that a statement of eight pages in length, 44 numbered paragraphs dated 26 July 2019?‑‑‑Yes.


Are there any corrections or amendments that you wish to make to that statement?‑‑‑No.


Is the contents of your statement true and correct to the best of your knowledge and belief?‑‑‑Yes, it is.


I tender the statement.


VICE PRESIDENT HATCHER:  The statement of Kerri Elstub dated 26 July 2019 will be marked as exhibit 9.



MR CRILLY:  That's the examination in chief, your Honour.



CROSS-EXAMINATION BY MR CHESHER                                 [11.53 AM]


MR CHESHER:  Good morning Ms Elstub.  I have reviewed your witness statement of 70 personnel that you supervise.  How many of those 70 are editorial employees?‑‑‑They would be all editorial.


All of them; thank you.  At paragraph 6 of your statement you say that your duties include staff management, personnel matters and budgets.  How are those 70 personnel currently employed and by that I mean, is it a common law contract?‑‑‑I don't know, I'm sorry.

***        KERRI ELSTUB                                                                                                                      XXN MR CHESHER


That's fine.  Your Honour, it might be useful given my next couple of questions that if Ms Elstub doesn't have a copy of the Journalists Published Media Award, that I might provide a copy to her.




MR CHESHER:  Firstly, I want to draw your attention to clause 14.1 of the award, Ms Elstub.  You'll find that commencing on page 21 and leading over to page 22.  Have you located that clause?‑‑‑Yes.


My question is that, assuming that Nine Entertainment has lawfully complied with the requirement to pay at or in excess of what is in the Journalists Published Media Award, it is possible for you to inform the Commission of where the majority of those 70 editorial employees are located?  By that I mean with respect to band one, band two and band three.  I accept that this might be a difficult thing to come to off the top of your head?‑‑‑No, I can't.


Is it possible to obtain that information at a later date?‑‑‑Yes, it would be.


Thank you.  Across the 70 personnel are there trainees or cadets?‑‑‑No.


No, okay.  Any junior employees?‑‑‑We have Associate Producers.


VICE PRESIDENT HATCHER:  What's an Associate Producer?‑‑‑An Associate Producer is - we would call that our entry level position, where you're reporting to the producers, listening to the producers and would write up why a copy and start writing stories.


MR CHESHER:  Sorry, your Honour.  I did mean people under the age of 18, rather than the hierarchy?‑‑‑No.


VICE PRESIDENT HATCHER:  So an Associate Producer will be a tertiary qualified person?‑‑‑yes.


Do you employ people with specific journalism tertiary qualifications or is it wider than that?‑‑‑It can be wider than that.  It depends on the individual candidate.  Obviously tertiary is preferred.

***        KERRI ELSTUB                                                                                                                      XXN MR CHESHER


But what sort of tertiary degree would you be looking at?‑‑‑A journalism degree, but occasionally we can go outside that if someone has some great workplace experience.


Thank you.


MR CHESHER:  Acknowledging Ms Elstub that you have responsibility for, is it five verticals, websites?‑‑‑Yes.


My question is with respect to the nine.com.au website.  Could you advise the Commission of how that website is faring in the context of its competition?‑‑‑Yes.  The website is currently number three in terms of Nielsen rankings which is how the industry rates us.  Our biggest competitors would be NewsCorp and the ABC.


VICE PRESIDENT HATCHER:  So the nine.com site, what sort of content does that have?‑‑‑The nine.com site is an aggregator for the other verticals.  So it takes the best of nine news, the best of wide world of sports, the best of 9Honey and the best of our entertainment site.


Now that you've merged with Fairfax, is there anything afoot, as it were, to have some form of integration of at least the news content with Fairfax News content?‑‑‑No.


Thank you.


MR CHESHER:  Thank you, your Honour.  I seek leave to hand up three pages in a bundle, your Honour, which are the Nielsen rankings for May 2014, for December 2016 and June 2019.  I'll be very brief here, Ms Elstub, in its immediate past incarnation, it was the nine.msn website.


VICE PRESIDENT HATCHER:  Sorry Mr Chesher, do you have a copy for the witness?


MR CHESHER:  I beg your pardon?


VICE PRESIDENT HATCHER:  DO you have a copy for the witness?

***        KERRI ELSTUB                                                                                                                      XXN MR CHESHER


MR CHESHER:  Certainly, I do apologies.  Ms Elstub would you - assessing the first half of page 1, where Nine appears in the third position.  The second page where Nine has a unique audience of near enough 4.3 million in the month.  And most recently, and these are the most recent available figures, your Honours and Commissioner, the figures for May 2019 - I misspoke earlier; I referred to June.


Bearing in mind that this website hadn't existed, it predates 2014, exploring the growth of the nine.com website by the number of unique audience numbers.  Nine's audience has increased more than twofold in the past five years.  Would you say that's a fair proposition?‑‑‑Yes.


I couch that with - the Bench will see this from MEAA's submission that all news websites of note have enjoyed substantial increases in unique audience numbers over this period.


VICE PRESIDENT HATCHER:  And they're a mixture of free sites and Payworld sites, aren't they?‑‑‑Yes.


MR CHESHER:  Ms Elstub, Nine has now fully acquired Fairfax Media, is that your understanding?‑‑‑Yes.


My friend might be able to assist me, your Honour, but the point of my question here is - this goes to your employer's opposition to part 5 of the award being extended to online employees, including the 70 employees at Nine, is Nine now being the employer of Fairfax, Sydney Morning Herald, Age journalists, that with respect to the Journalists Published Media Award, those employees are covered by part 5 of the Journalists Published Media Award because their employment rights have not been varied as a result of the company's - Fairfax's transition into Nine ownership.


Your Honour, there might be no point asking - - -


VICE PRESIDENT HATCHER:  Why don't you ask the question and we'll see how we go.


MR CHESHER:  Well, I was going to ask if Ms Elstub accepted that those former Fairfax employees did enjoy the degree of coverage that I just referred to at part 5, but the answer to her earlier question gives me pause to think that she might not be within her area of responsibility.

***        KERRI ELSTUB                                                                                                                      XXN MR CHESHER


Your Honour did touch on a question that I did want to expressly put to you Ms Elstub in your role as Digital Editorial Director.  Have you participated in any discussions concerning the merging of the Nine news site and the Fairfax news sites?‑‑‑No.


Simply not on the company's radar that those discrete websites might one day be merged?‑‑‑No.


With respect to the Nine Entertainment website, that's the discrete Nine Entertainment website, how many editorial employees, roughly speaking of the 70 that we're using - - -?‑‑‑For the Nine Entertainment Corporate side or for the Nine Entertainment vertical that I look after?


The vertical that you look after?‑‑‑That I look after.


Yes?‑‑‑I believe there are nine people on that team.


Nine.  You say in your witness statement - you don't refer further to those persons because they're employed under a different modern award, Broadcasting, Recorded Entertainment and Cinema's Award.  Your Honour, I seek permission to hand up to the Full Bench and Ms Elstub and my friends an extract of the Broadcasting, Recorded Entertainment and Cinemas Award 2010.


Your Honour, with respect to the environment I haven't sought to extract the entire award, numbering more 150 pages, but I'll shortly outline the relevance of the document that I've now handed up.  Ms Elstub, it occurs to me that there are only two sections of the Broadcasting award, and I'll use that shorthand from now on, that could apply to the editorial employees at the Nine Entertainment website, those being the television broadcasting provisions.  If you skip to page 64, you will find part 8 which applies to journalists.


Do you know Ms Elstub, which of those parts might apply to the Nine Entertainment employees?‑‑‑No, I don't.  Those employees have only just started to report into me and I'm not aware of their exact terms as yet.

***        KERRI ELSTUB                                                                                                                      XXN MR CHESHER


Okay, perhaps that's something we can be informed of later in the day, perhaps.  The point of my drawing these extracts from the Broadcasting Award to your attention, Ms Elstub is that in part 6, television broadcasting, that is looking at clause 29 on page 47 of the hand-up, and if you turn the page, I'm looking at page 48 and clause 30, Shift and Weekend Penalties.  And again, I take you to page 64.  I'm not going to ask you a detailed question here, Ms Elstub.  The part 8 pertaining to journalists, I draw your attention to clause 45 Hours of Work, clause 46, 47, and 48 which go over into page 65.


VICE PRESIDENT HATCHER:  So this applies what, to television journalists, does it?


MR CHESHER:  Yes, your Honour.  Well, it's unclear whether these Nine Entertainment employees are technically bound or journalistically bound, so hence I've extracted both provisions.




MR CHESHER:  I just put it to you this simply, and with no acrimony at all, Ms Elstub, that is that part 6 and part 8 of the Broadcasting Award which your statement says applies to the Nine Entertainment website employees, provides for the very benefits that Nine opposes be extended to journalists covered under part 5 of the Journalists Award.


VICE PRESIDENT HATCHER:  So, what part of the statement are you referring to here?


MR CHESHER:  Of Ms Elstub's statement, your Honour?




MR CHESHER:  It is paragraph 13.


VICE PRESIDENT HATCHER:  Do you understand what you're being asked, Ms Elstub?‑‑‑I don't, I'm sorry.


Well, let me try to help.


MR CHESHER:  Yes, I'm sorry, your Honour.


VICE PRESIDENT HATCHER:  The Nine Entertainment page, the team for that is covered by the Broadcasting Award?‑‑‑Yes.

***        KERRI ELSTUB                                                                                                                      XXN MR CHESHER


I think the point Mr Chesher is making is that people who work on that page, whether they're journalists or just production staff, would get various forms of penalty rates including weekend penalty rates?‑‑‑Right.


Do you understand that to be the case or not?‑‑‑I do, but to my earlier statement, they have only in a matter of weeks come under my supervision and that is - I'm not fully across their contracts and their rates and their penalties, I'm afraid.


And presumably, when you were producer of Current Affair and Weekend Today, you would have had production staff and journalist staff working for you then?‑‑‑Yes, I did.


They were paid various forms of penalty rates including weekend penalty rates?‑‑‑Not to the best of my recollection, but I wasn't in charge of budgets in my roles.


All right, thank you.


MR CHESHER:  Right, for the record your Honour, yes, the point about questioning was to inform the Commission that it appears that within Ms Elstub's websites, Nine's websites that there are two sets of rules.


VICE PRESIDENT HATCHER:  Yes, we get that, I think.


MR CHESHER:  Yes, and taking into consideration it's ownership of Fairfax, perhaps three sets of rules.  Ms Elstub, I take you to paragraph 17 of your witness statement, again given that you've only recently filled this role, you may not be able to answer.  At A, B and C, can you give us an estimate of what an Editor, Managing Editor and Senior Producer might earn?‑‑‑It does vary according to the individual's skill set and the position that they are working in.  I'm trying to think of an example.  A senior producer's salary would be roughly $85 000 plus super, that's a base salary.  The managing editor and editor roles vary according to the staffing, the workload, the responsibilities.


But that's pretty much a sliding scale that you've presented there.  So, the managing editor and editor would earn more than the senior producer?‑‑‑Yes.

***        KERRI ELSTUB                                                                                                                      XXN MR CHESHER


Thank you.  I ask that question and inform the Full Bench because those positions, it would appear to me, even under MEAA's proposed changes to the exemption provisions, would not be covered by part 5 of the award.  So, I don't know how many of those three positions occupy the total number of 70 editorial employees, but it's possible that those positions might be deducted from that.


At paragraph 23 Ms Elstub, you outline - and I'll give you an opportunity to come to that.  You say Nine's primary aim is of updating news on a continuing basis because your audience demands this.  In your media experience that's an objective shared by any media organisation worth its salt, isn't it?‑‑‑Yes.


Does it point to an increased need for around the clock flexibility for an editorial workforce, for example?  You refer to your roster arrangements in your statement.  I don't know when you commenced in the profession, but the days of locking down the 6 o'clock news and going home appear to be long gone to me?‑‑‑Yes, that is certainly true.


What's not transmitted through the television is now transmitted online and that your audience wants to know about events as they happen, not at 8 o'clock when they go to the newsagent in the morning, if in fact they still go?‑‑‑Yes.


You say in your witness statement that with respect to TOIL and penalty payments that would be - if these things were available to most of your employees - that would be conditioned upon Nine management requiring and directing employees to perform work at that time.  Is that correct?  Does that make sense?‑‑‑I'm sorry, I didn't understand the question.


Didn't even make sense to me.


VICE PRESIDENT HATCHER:  Are you directing us to particular paragraph of the statement?


MR CHESHER:  I'm sorry, your Honour.  I'll withdraw the question.  It wasn't a reference to Ms Elstub's statement.



***        KERRI ELSTUB                                                                                                                      XXN MR CHESHER


MR CHESHER:  A more general proposition that if - let's just call part 5 of the Journalists Award a burden of whatever kind that Nine websites don't currently have to adhere to.  Would it be the case that if part 5 entitlements, overtime breaks et cetera were extended to not just Nine employees, but to all online editorial employees, that there would be no competitive disadvantage in particular, suffered by Nine, would there?  You'd all be - - -?‑‑‑I don't believe there would be a competitive disadvantage, but I can't speak to the others.


Okay.  We're almost there Ms Elstub; thank you for your patience.  In paragraph 39 of your statement, on page 7, you say that there is no surplus in your staff budget.  Paragraph 40 says that Nine's digital publications operate on a low profit margin.  I mean this is the bread and butter of modern media business, is you're given a defined budget.  But I did want to hand up to you and to the Bench the most recent half yearly results recorded by Nine Entertainment, just to present a contrast if you like to the Commission to your proposition - I've only got one, sorry.


Ms Elstub, I'll very quickly step you through this document.  It's dated 21 February 2019; the third paragraph indicates a net profit after tax and minority interests of $126 million.  That's a five per cent uplift.  Is that for the year, or for the half year.  Do you know?‑‑‑I'm sorry, I don't work in that department.


That's fine.  Moving ahead a few pages.  I think the pages aren't numbered, but it's page 5 in my handout and table 5 which you'll again see I've helpfully marked.  Firstly, do your websites fall under the banner of Digital and Publishing within the company?‑‑‑Yes, they do.


Thank you.  The EBITDA which I always know what the first four or five are, but earnings before - you know what?‑‑‑Tax, depreciation and amortisation.


Thank you very much.  I should have written it down for myself.  But basically, it's a reflection of after all expenses and abnormalities addressed, that is the profit of that division.  In financial year 2018, the profit of that division was $43.2 million.  In financial year 2019 the profit was $60.2 million.  I mean I dare not ask where the balance between your budget and those profit figures ends up, I suspect, to shareholders and others.  But it does suggest to me and I wouldn't put you on the spot here, but it does suggest to me that there's a little bit of flexibility within the budget of Nine's Digital and Publishing Division.


VICE PRESIDENT HATCHER:  Perhaps put the proposition more directly.  Table 5 shows high profit margins, not low profit margins.  Do you accept that?‑‑‑Yes, I accept that.


MR CHESHER:  I have no further questions for Ms Elstub.


VICE PRESIDENT HATCHER:  All right.  Mr Crilly, any re-examination?



***        KERRI ELSTUB                                                                                                                      XXN MR CHESHER

RE-EXAMINATION BY MR CRILLY                                             [12.21 PM]


MR CRILLY:  Just staying with that table 5 in the results which you've been handed.  In that first sentence there, there's a reference to a range of things which appear to be included in this table.  Can you speak to which of those do and don't fall within your area of responsibility?‑‑‑The only one of me is nine.com.au, the one right at the end.


Can you speak briefly to what the others are?‑‑‑Metromedia is all the mastheads, so all the newspapers.  9Now is our catchup platform.  The other digital publishing titles, Pedestrian is our youth website and Car Advice is our car website.


Sorry, could you just explain what 9Now is.  You mentioned catchup platform?‑‑‑9Now is a video streaming service where you can catch up on Nine television shows and watch unique programs.


I see.  Nothing further, your Honour.


VICE PRESIDENT HATCHER:  All those are free content where the revenue comes from advertising, is that right?‑‑‑Yes.


Do advertisers buy content across various media spectrums like - do you get a package of like TV, website, magazine or do you buy them unit by unit?‑‑‑I couldn't speak to that I'm sorry; that's not my department.


Right.  Thank you for your evidence Ms Elstub, you're excused and you're free to go.

<THE WITNESS WITHDREW                                                          [12.22 PM]


Mr Chesher, do you want us to mark the documents you've handed up?


MR CHESHER:  Yes, your Honour.


VICE PRESIDENT HATCHER:  The Audience Ratings document will be marked exhibit 10.


***        KERRI ELSTUB                                                                                                                           RXN MR CRILLY


MR CHESHER:  I'm sorry, your Honour, could you repeat that?


VICE PRESIDENT HATCHER:  Exhibit 10, that's the Audience Ratings document.


MR CHESHER:  Thank you.


VICE PRESIDENT HATCHER:  The Nine Entertainment first half financial year 2019 results will be marked exhibit 11.



Right, Mr Crilly.


MR CRILLY:  Yes.  None of the other witnesses whom Nine propose to call have been required for cross-examination.  So there's just a number of statements I need to tender.


There are two statements of Mr Alex Labelle.  The first is dated 8 July 2019.


VICE PRESIDENT HATCHER:  The statement of Alex Labelle dated 8 July 2019 will be marked exhibit 12.



MR CRILLY:  There is then the second statement of Alex Labelle which is dated 26 July 2019.


VICE PRESIDENT HATCHER:  The second witness statement of Alex Labelle dated 26 July 2019 will be marked exhibit 13.



MR CRILLY:  Finally, there's a statement of Matthew Rowley dated 26 July 2019.


VICE PRESIDENT HATCHER:  The statement of Matthew Rowley dated 26 July 2019 will be exhibit 14.



MR CRILLY:  That's our case.


VICE PRESIDENT HATCHER:  All right, thank you.  So, with respect to the Daily Mail, how many witnesses are required for cross-examination?


MR DUDLEY:  Both our witnesses, your Honour.


VICE PRESIDENT HATCHER:  All right, so is it convenient if we take the luncheon adjournment now?


MR DUDLEY:  I'm in your hands, your Honour.  I was going to briefly open for 15 or 20 minutes.


VICE PRESIDENT HATCHER:  I'm sorry, so let's do that.


MR DUDLEY:  I'm comfortable to use the time for that if the Bench is.


VICE PRESIDENT HATCHER:  All right, go ahead.


MR DUDLEY:  Just to make clear the Daily Mail's position, the Daily Mail does object to one of the MEAA's proposals which is to remove the exemption for online only publications.  It's not described in that way in the award, but that's the effect of it.  The exemption from part 5 of the award.  And that exemption, as has been identified this morning appears in clause 4.10(a) of the current award.


Now, there's a few things that we would say about that proposal.  Number one, this would be a very significant change to the provisions in the award.  If employers in my client's position have never before been subject to these provisions, they would now become subject to them.  With respect to my friend he seems to say that, or seems to be put that it's almost self-evident that it is necessary to make that change and that's certainly not accepted by the Daily Mail.


Those are provisions as has been discussed this morning that have the potential to substantially impact cost and operations for my client and for other online-only publications because they do relate to penalties and overtime and so forth.  Your Honour, the Vice President ask this morning about whether clients in my - sorry, organisations in my client's position were previously covered by awards.  We've identified in the submissions that we've filed and if you have a copy of that, the relevant parts commence at paragraph 22.


In part C2 of our submissions we address the historical context of the award with respect to online only publications.  What we draw on there, your Honours, are the submissions that were made when the award that we are looking at was first made by the Commission.  There were submissions made - you will see there we've extracted the thrust of those submissions in paragraph 23 of our submission.


VICE PRESIDENT HATCHER:  Who made these submissions?


MR DUDLEY:  These were made - the reference is in footnote 11, your Honour, the submissions made by News Limited, ACP Magazines, Pacific Magazines and Text Pacific.  We have the reference there for your Honour to those.




MR DUDLEY:  Those submissions were made at the time that the award was first being examined, or being put together by the Commission.  Paragraph 24 of our submissions, this was an issue that was addressed orally during the hearings and I think it's fair to say, based also on the Australian Industrial Relations Commission statement that is extracted at paragraph 25, that it was accepted at the time that online only publications were not covered by awards.  But that the Commission then made a decision that online only publications should become covered by awards but a "reasonable compromise" was to exclude the application of part 5 of the present award to online only publications.


To your Honour's question this morning, these organisations were previously not award covered.  They became award covered but with an exemption from the - what I describe as the hours' provisions in the award.  The Commission, when the award was being made said it specifically considered the coverage of these organisations - specifically considered which parts of the award should cover these organisations and said part 5 should not.


I say that because, as I've mentioned, the change that's being proposed by the MEAA would have a significant impact.  It's a significant change in relation to organisations like my client.  That's a part at least, of the evidence that we have called goes to demonstrating to the Commission what the impact of the application of those provisions would be.  We'll get to that.  There's an exhibit that I'll hand up when I get to the evidence of Ms Serhal that demonstrates her estimation is approximately 10 per cent annual increase in payroll costs for the Daily Mail, if no operational changes were made.  So, if rosters were not changed; if we continued operating on - that's an estimate of the impact on my client.


What we say is that the Commission is being asked to endorse this change on the slimmest possible evidentiary basis.  The evidence is replete with assertion and speculation.  We say that this simply inadequate material before the Commission to conclude that it's necessary to make this change to meet the modern award's objective, or to ensure that the award meets that objective.


As my friend Mr Crilly has said, there's a lack of connection between the facts that are asserted by the MEAA and the need for the change that is proposed.  In our submission, it's not enough simply to say well print media is declining.  It's not enough just to say jobs have been lost from the industry.  It's not enough to say that the award might become less relevant in the future.  It's not enough to say, as he's said a number of times in the MEAA's submissions - lots of people get their news now from social media or that the work in modern newsrooms has changed.


None of those facts, we say, go to the question of the application of this exemption or the removal of this exemption from the award.  They, we say, are complaints about the trajectory of the industry as a whole, which many of us might lament for a range of reasons, but what is not done in the union's submissions, is to justify why the exemption should be removed.


VICE PRESIDENT HATCHER:  One relevant thing we need to consider of course is that section 134(1)D (a) has been enacted since this award has been made.


MR DUDLEY:  Yes, your Honour.


VICE PRESIDENT HATCHER:  How do we account for that?


MR DUDLEY:  What we say, and I guess the thrust of our submissions is that it's for the union and numerous cases handed down by the Commission that say for the party proposing the change to the award, they need to demonstrate why the change is necessary, having regard to all of the factors in section 134.  That is one of the factors that the Commission ought to take into account, properly so.


But it is for the party moving the change to demonstrate why it is necessary.  We say there's a paucity of evidence before the Commission to enable it to conclude that it is necessary, having regard to all of those factors.


COMMISSIONER BOOTH:  Just before we leave that point, I suppose going back to paragraph 25 of the history of that section, it seems as if while we've got a task to do now, and 134 matters, back then, there is what seems to me to be very little basis on which overtime and shift work was excluded, other than well we've got to do some compromise along the way.  There's nothing else that you can assist?


MR DUDLEY:  I can't speak to that Commissioner.  The material we've put in this section of our submission, is what we were able to find in our research into the history behind it.




MR DUDLEY:  I would have to accept that there is not a lot there that goes to the question of why.


COMMISSIONER BOOTH:  Of why that big was left out, yes.


MR DUDLEY:  Correct.


COMMISSIONER BOOTH:  So why, for - a print journalist was included, but not for those.


MR DUDLEY:  That's correct, Commissioner, yes.


COMMISSIONER BOOTH:  Not that that necessarily informs us now, but it's just - - -


VICE PRESIDENT HATCHER:  Well, we at least know that they regarded it as a new area of employment which a decade on, it's now a mature and established industry, isn't it?


MR DUDLEY:  We accept that your Honour, yes.  The perspective that my client brings to the table is it was established in late 2013, early 2014.  It has never had to comply with these provisions and the Commission ought properly take into account the impact on organisations like my client of the change that is proposed.


That's why in our submissions, the alternative submission is we accept that the Commission might decide that the case is made out, in which case, we say some other things about how any change should be implemented.  Part of our evidence goes to that issue of is your Honours decide that the change is warranted, a transitional arrangement for it to be implemented.


What I do want to go back to very very briefly, is to emphasise that when we look at the union's material, there's no comparative analysis of the impacts of the change on employers and employees.  What I think is telling is that there seems to be no suggestion in any evidence brought by the union that employees in online-only publications are being undervalued, that they're being underpaid, that they're lacking a proper safety net.  The evidence we've got in relation to online-only publications is from Mr Knauss.  There's no suggestion that he's a low paid employee.


There seems to be no claim as far as we can identify, and certainly no evidence that employees are not being appropriately rewarded or recognised.  What we say is that it's very hard to identify how the union says - or what evidence the union is relying on to say that the award is in fact deficient.  We say in that regard, that in the absence of that proper justification, the change should not be made.


As I've said, much of our material goes to demonstrating what the impact of the change would be on my client.  What we say in that regard is that the Commission ought to tread very carefully when there are such significant potential impacts.  The Commission should weigh the impact of the change on employers.  So the evidence that we have called in that regard, goes to the steps that our client would need to take in order to ensure it could comply with those provisions.  They are detailed provisions; they do go to the times at which hours are worked, the number of hours that are worked each week and so forth.


There are a few things that my client would need to do.  It would need to introduce new systems that it hasn't had to have in the past, because it hasn't needed to comply with those provisions.  So it would need a workforce management system, it would need a time and attendance system.  To use the vernacular, those things just don't just magic up out of thin air.  There is work and time required to implement those systems.  There's testing, there's training - that's referred to in our evidence.  There's a time and there's a cost involved in ensuring that my client will be able comply with any change that is made.


As I said, perhaps even more significant than that is the additional cost burden that my client would bear as a result of these changes.  As I said, we estimate approximately 10 per cent increase in payroll costs, which for my client is around $800 000 per annum.  Now that is assuming that no operational changes were made.  So we accept that if the changes were made our client might need to rejig the way in which it rosters people.


But the submission we make about that, is it is rostering people at the moment for particular reasons.  There's an optimal way in which its rostering its employees at the moment and to impose these costs and then for our client to have to mitigate the impact of those costs would lead to a suboptimal outcome in terms of the operational impact.


What I will say about that evidence is that it does go to the likely impact of the changes.  That is for better or worse, the best we can do in the circumstances, which is to provide an estimate of the impact.  It is very difficult to give you a precise quantification of the impact of these changes at the moment, for a number of reasons, including that we don't have the systems in place to be able to work those things through.


The evidence that we call, two witnesses as I've mentioned.  Firstly, the evidence of Ms Serhal, who's the Head of Finance.  Her statement addresses the new systems that would be required to ensure compliance.  It addresses the time that would be required to be in a position to comply.  Ms Serhal looks at, as I said, the likely cost of complying with those provisions if no change to roster practices was made and also, addresses the online advertising revenue model.  This goes to the point of it's not a river of gold for online-only publications that seems to be suggested by the union.


The evidence of Ms Brunt who's the Assistant Managing Editor goes to describing - and you'll see your Honours there, there's a great deal of details in the evidence of Ms Brunt around the way in which rosters currently work at Daily Mail.  The work that would be required to revisit those rosters if these changes were implemented and also addresses that point of what changes might need to be made if the provisions were implemented.


As I said, the last point I'll make just in opening is that our final submission is an alternative.  As I've mentioned, if the Commission was minded, despite our position in relation to the union's material to make the changes, we would say three things.  Firstly, that not all of the hours provisions in what is currently part 5 should apply to online-only publications.  So we would say that shift penalties for work between 6 am and 7 am or on afternoons should not be imposed on online-only publications and no weekend penalties should be imposed between 6 am and 8.30 pm.


Now what we say in relation to that, is that it's not for the Daily Mail to justify the imposition - sorry, not imposing penalties is for the union to justify why penalties should be imposed.  But as I say, as a fallback we say there are reasons including by reference to the recent decisions about the unsociability of such hours, that those penalties should not be imposed despite what the union says.


Secondly, what we say is that there should be a period of time after any decision made by the Commission before which my client and other online-only publications should be required to comply with any of part 5 of the current award.  That is to allow those publications time to put in place systems to comply with those provisions.


And lastly, that a decision to implement that part in relation to online-only publications should be subject to a transition period in much the say way as there was a transition period when the award was first created.  I think it's referred to in schedule A of the award, where there was a difference between penalty rates that were currently being paid by an employer and the new penalty rate in the award.  That was transitioned into over time.


Now, this situation is much more stark than the situation that was confronted back in 2010.  Back in 2010, there were one might say, perhaps minor differences between the penalty rates that applied.  So a penalty rate might have been 35 per cent that an employer was currently paying and it might have had to move to 50 per cent.  That was transitioned over a period of four or five years.


Where we are in this case is moving from a situation where my client has had to pay no penalty rates at all, to a position where it would have to pay the full penalty rate.  We say the same approach should be adopted.  The arguments for that are, we say, the same as those made at the time in 2010.  That there needs to be an appropriate period for my client to bear the impact of the additional cost.


As I said, those three submissions are by way of an alternative.  We certainly don't say those to resile from our primary position which is that the case for the change has not been made out.  I'm conscious of the time, your Honours.  I think - - -


VICE PRESIDENT HATCHER:  The evidence doesn't seem to disclose that the Daily Mail pays on the award to its employees.  There's talked about monthly - annual contracts with monthly payment systems and that sort of thing.




VICE PRESIDENT HATCHER:  But the evidence doesn't say that the Daily Mail pays award rates and no more - does it?


MR DUDLEY:  Well, I think - I will have to check that, your Honour.  Certainly, the position - my instructions are that it pays at least the minimum rate in the award.


VICE PRESIDENT HATCHER:  Well, I assume so, yes.


MR DUDLEY:  Yes, yes.  And it pays more to - I mean to the point that's been made this morning, it does depend on the particular individual doing the role.  So some people are paid much more than the award; some people are paid a little bit more than the award, yes.


VICE PRESIDENT HATCHER:  I mean, the way it's managed, I don't need to tell you how to do this, but the way it's managed may mean that for someone who's on a substantial over-award payment has no cost.


MR DUDLEY:  I'm sorry your Honour, I missed this.


VICE PRESIDENT HATCHER:  The way it's managed may mean that for a person who's got a substantial over-award salary, it may mean that there is no cost.


MR DUDLEY:  Correct, yes.  When we hear from Ms Serhal, we will hear about the way in which the calculation of that 10 per cent has been made.  That 10 per cent additional impost has been calculated on the basis of those who would currently meet the minimum weekly wage, but who work in a way that would entitle them to penalties or overtime and so the amount that would be required to be paid to those people would increase.  So, it is only to count - that counts the additional cost as a result of the imposition of these provisions.


For those who are already being paid enough, they're not counted in that 10 per cent, yes.


VICE PRESIDENT HATCHER:  All right, thank you.


MR DUDLEY:  I think my friend is going to be longer than 10 or 15 minutes with Ms Serhal, so I'm in your hands as to whether we start.


VICE PRESIDENT HATCHER:  How long do you think you will be cross-examining these two witnesses for, Mr Chesher?


MR CHESHER:  I think approximately 30 to 40 minutes each, your Honour.  But I'll strive to be quicker.


VICE PRESIDENT HATCHER:  Well, if we resume at 2 o'clock, we should finish the evidence by four and then we can receive submissions tomorrow morning.  Is that a suitable approach?


MR CHESHER:  Speaking for MEAA, your Honour, I'm happy to move immediately onto brief closing submissions, is that's the Commission's desire.


MR DUDLEY:  I would agree, your Honours.  We're in your hands as to how you would be best assisted, but we're comfortable to move directly to closing.  I've taken you through our submissions.  We've put detailed submissions in writing.  I don't propose to spend very long in closing.


VICE PRESIDENT HATCHER:  Right, well in that case, we'll just resume at 1.45 and we'll see how we go.

LUNCHEON ADJOURNMENT                                                         [12.47 PM]

RESUMED                                                                                               [1.53 PM]




MR DUDLEY:  Thank you, your Honour.  Your Honour, can I just deal with two matters before calling Ms Serhal.  Your Honour, The President, asked prior to the break, whether Daily Mail's evidence dealt with the question of compliance, with the minimum entitlements as it currently stands.


VICE PRESIDENT HATCHER:  I wasn't questioning their compliance.  I was suggesting that they might be paying over the award such that they could structure their affairs in a way that if, things were to change, it wouldn't cost them anything.  I wasn't suggesting they were underpaying the award.


MR DUDLEY:  I apologise, your Honour.




MR DUDLEY:  But I did want to point out at paragraph 30 to 35 of Ms Serhal's statement deals with the fact that we have double-checked, very recently, compliance with the award, as it currently stands, yes.  The second issue and it goes to that point your Honour just raised, is to hand up to you a copy of the confidential exhibit BS1 to Ms Serhal's statement.




MR DUDLEY:  That has not previously been provided to the Bench.




MR DUDLEY:  Including – well, specifically for the reason that it contains confidential information – commercially sensitive information and I hand that up to your Honours, on the basis that we seek a confidentiality order be made in relation to that exhibit.


If I hand up to your Honours a copy of the draft confidentiality order.  Your Honours will see, and Ms Serhal will explain the contents of this document, but your Honours will see that what this document includes is an endeavour, from Ms Serhal, to calculate the likely cost increase as a result of the imposition of the hours provisions in part 5 on Daily Mail, by reference to a sample roster week and employees that had worked during that week, their working hours during that week.


Whilst the names of individual employees don't appear on that sheet, it nevertheless, contains, and you'll see on the – behind the tab that's marked, "Financial Modelling", the first tab.  If one goes to the third page, there is some colourful highlighting in the last column, "Variance", weekly-based salary is the next column to the left of the variance column.


VICE PRESIDENT HATCHER:  That's the actual salary.


MR DUDLEY:  That is the actual salary of each of the employees.


Now, my client is obviously concerned that if this document was made public, certainly employees of my client, may be able to reverse engineer, so to speak, the data in here and work out which of their colleagues is in a particular row and therefore, work out what their colleague's salary might be.


VICE PRESIDENT HATCHER:  Sorry, so second from the left is the actual salary?




VICE PRESIDENT HATCHER:  And third from the left is what they should be getting, under the award?


MR DUDLEY:  That's the calculation of - if part 5 were imposed.


VICE PRESIDENT HATCHER:  Of what they would be getting in the award.  I see




VICE PRESIDENT HATCHER:  So does that tell us what classification they would be in?


MR DUDLEY:  Yes.  If one flips back to – and it's very difficult to do this in an easy to manage way, your Honour, I apologise.  But if one flips back to the first page, each of the employees, who worked during that roster week ‑ ‑ ‑




MR DUDLEY:  ‑ ‑ ‑ is identified by reference to band, level, status and shift pattern.  And that is the genesis of the concern.  That because the band, status and shift pattern is identified, for the assistance of the Commission, that might enable those within – those employees of our – of my client, to work out what their colleagues are paid because they know what the shift was to look like in June 2019.


Not only that though, this document is commercially sensitive information to my client and it doesn't wish that to be disclosed, publicly, so that's its competitors have access to see how it rosters its employees and what it pays to it pays to its employees.


MR CHESHER:  Your Honour ‑ ‑ ‑




MR CHESHER:  Your Honour, could I just ask one of Mr Dudley?


VICE PRESIDENT HATCHER:  So just go and just look at the order first.




VICE PRESIDENT HATCHER:  So on the version that's filed, the first – just for the matter of cross-referencing, the first annexure is already BS1, isn't it?


MR DUDLEY:  I apologise, your Honour.  I didn't hear that.


VICE PRESIDENT HATCHER:  On the version of the statement that's been filed ‑ ‑ ‑




VICE PRESIDENT HATCHER:  ‑ ‑ ‑ the first annexure, which is on page number 23, is also numbered BS1.


DEPUTY PRESIDENT DEAN:  So that's referred to in paragraph 79 of the statement, which is the online advertising expenditure report, which seems to match up.  And BS2, at paragraph 83 ‑ ‑ ‑




DEPUTY PRESIDENT DEAN:  ‑ ‑ ‑ ACCCs DPI preliminary report.  I just can't see a reference in the statement to their confidential exhibits.


MR DUDLEY:  So your Honour, there's a reference in paragraph 3 to the fact that there's a confidential exhibit.  There's also a reference in paragraph 60, top of page 15, of the statement.


VICE PRESIDENT HATCHER:  Well, we found the issue, it's got the same number in as ‑ ‑ ‑


MR DUDLEY:  I apologise, your Honour.


Yes, we intended that to be exhibit BS1 as opposed to annexure BS1.




MR DUDLEY:  But we're content for it to be ‑ ‑ ‑


VICE PRESIDENT HATCHER:  No, no.  I see.  All right.


MR DUDLEY:  ‑ ‑ ‑ renumbered or renamed, your Honour.




MR DUDLEY:  Whichever way is convenient.


VICE PRESIDENT HATCHER:  So Mr Chesher, what's your attitude to this?


MR CHESHER:  Your Honour, my question is, and I think you went through this but I didn't pick it up.


Looking at page 3 of the exhibit and the right-hand coloured column, can I understand that that is the assessed, weekly variance that would be caused by the application of part 5 to these employees, is that what that column means?


MR DUDLEY:  Those are my instructions, your Honour.  Ms Serhal can talk to the manner in which she's calculated that, yes.  So if I can explain that.


VICE PRESIDENT HATCHER:  Well, can we just deal with the confidentiality order first?


So ‑ ‑ ‑


MR CHESHER:  Upon reviewing Ms Serhal's statement last week, your Honour, sorry, last ‑ ‑ ‑


VICE PRESIDENT HATCHER:  So did you have prior access to this document?


MR CHESHER:  No.  Last Monday, I contacted my friends and asked if that document was available and the answer was, "No".  It's a little bit difficult to assess and test a document of this extent on the run, so to speak, but that is my attitude.


VICE PRESIDENT HATCHER:  All right.  Well, that's a bigger problem.


How can Mr Chesher fairly deal with this material, in the first place?


MR DUDLEY:  Your Honour, we did – we received a question from Mr Chesher about the fact that he couldn't find it and we told him that it was a confidential exhibit.  We received no request.


VICE PRESIDENT HATCHER:  But there still is – there was a direction for you to file and serve.  It's up to you to deliver the material ‑ ‑ ‑




VICE PRESIDENT HATCHER:  ‑ ‑ ‑ and to obtain confidentiality orders if you wish them to be confidential.  It's not up to him to chase you up about it.


MR DUDLEY:  Well, if Mr Chesher needs some time to examine the document, we're content to give him that time.  It doesn't – it's not a document that goes to anything the union has said in relation to its reasons for the application.  It's a document that draws on the company's information and sets out a calculation. If Mr Chesher needs an opportunity to examine – to review that, we're content to give him that opportunity.


VICE PRESIDENT HATCHER:  Well, I don't know how he's meant to fairly deal with it, at any time today or tomorrow.  It's a document which would require mathematical analysis.  I mean, he may say it's wrong.


MR DUDLEY:  He may well, your Honour, yes.


VICE PRESIDENT HATCHER:  I'm (indistinct).  Anyway, what do you want to do, Mr Chesher?


MR CHESHER:  I just wanted to hand up the exchange with my friends about our request for the document.


VICE PRESIDENT HATCHER:  Well, I mean, that's happened.




VICE PRESIDENT HATCHER:  The fact is, you've seen for the first time today.  I think it would be accepted you couldn't fairly with it on the run.  What do you want to do?  Do you want to object to its admission?  Do you want an adjournment?


MR CHESHER:  I object to the submission, your Honour, and in the alternative, I would request until the close of business, next Tuesday, to advise the Commission on MEAA's interpretation of Ms Serhal's spreadsheet.  On that discrete issue only.


VICE PRESIDENT HATCHER:  And what about the confidentiality order?  I suppose we can – need to deal with what went in it first before we deal with that.


MR CHESHER:  I'm not fazed by the order, itself, your Honour.




What do you want to say in response as to why we should admit it?


MR DUDLEY:  Well, if the objection is merely that my friend hasn't had an opportunity to examine it, that, as I said, that opportunity should be afforded to him.  We're content for that to happen.


It's not a lengthy document.


VICE PRESIDENT HATCHER:  I don't think its length is the problem.  It's the fact that it's a set of mathematical calculations.


MR DUDLEY:  Yes.  And Ms Serhal can give evidence as to the manner in which she has calculated – has compiled the document.


VICE PRESIDENT HATCHER:  All right.  I'm sure she can.




VICE PRESIDENT HATCHER:  But that doesn't deal with the prejudice clause by the fact that you didn't serve it.


MR DUDLEY:  Well, the concern – part of the reason we didn't serve it, your Honour, is because we do have concerns about confidentiality.  I appreciate that that is our responsibility to seek those orders and we've done so.  We were very concerned to produce that document, either to the Commission or to my friend, without having some comfort that it wouldn't be further disclosed.


VICE PRESIDENT HATCHER:  Well, parties do that all the time by applying for orders in advance of the filing date so that they can have that level of assurance.


MR DUDLEY:  Yes, your Honour.




Well, we'll admit the document as part of the tender of the statement, when it happens.  Mr Cheshire, you won't be required to cross-examine on it today.  We'll allow you, say, a week to analyse it and then you can advise us as to whether you wish to have Ms Serhal brought back for further cross-examination at some further date to be advised.


Is that suitable?


MR CHESHER:  Yes.  That is suitable.


VICE PRESIDENT HATCHER:  And we'll make the order that's proposed, in reference to the exhibit.


MR DUDLEY:  May it please.


Your Honour, if it would assist Mr Cheshire, I certainly would propose, in examination-in-chief, to have Ms Serhal explain the document and Mr Cheshire can then take his time to determine whether he wishes to ask questions at a later date.


VICE PRESIDENT HATCHER:  All right.   We'll call the witness.


MR DUDLEY:  I call Ms Serhal.


THE ASSOCIATE:  Please state your full name and address.


MS SERHAL:  Bernadette Serhal, (address supplied).

<BERNADETTE SERHAL, SWORN                                                  [2.08 PM]

EXAMINATION-IN-CHIEF BY MR DUDLEY                                 [2.08 PM]


MR DUDLEY:  Thank you, Ms Serhal.  Could I just confirm you name is Bernadette Serhal?‑‑‑Yes.

***        BERNADETTE SERHAL                                                                                                              XN MR DUDLEY


You're employed by Dailymail.com Australia, is that right?‑‑‑Yes.


And your – what's your role?‑‑‑As the Head of Finance.


And have you prepared a statement in these proceedings?‑‑‑I have.


And was that dated 26 July 2019?‑‑‑Yes.


And do you have a copy of that statement with you?‑‑‑I do.


Do you have any corrections that you would like to make to that statement?‑‑‑I do.  On page 13, paragraph 56d.  The hours noted need to be corrected from 6 am to 7 am and 8.30 to 6 am.  Rather that 6 am to 8.30.


DEPUTY PRESIDENT DEAN:  I'm sorry, can you say that again?  What were the changes?‑‑‑Sorry?


MR DUDLEY:  So it was page 13, paragraph 56d?‑‑‑D, yep, so as it's written, it says 6 am to 8.30, which should be 6 am to 7 am.  And then it also says, 8.30 to 6 am, it should – sorry, it says 8 pm to 6 am.


Sorry, Ms Serhal.  Sorry, to interrupt.  Can I, just for the sake of clarity.  After – there's a VII, I think, there.  Which line after that roman numeral are we – which lines are we looking at?‑‑‑It's the third line.


Third line down?‑‑‑And the sixth line.


And the last line, is it?‑‑‑Yes.




MR DUDLEY:  So the third line down should read what?‑‑‑Six am to 7 am.  And 6.30 to – sorry, 8.30 to 6 am.


8.30?‑‑‑Pm to 6 am.

***        BERNADETTE SERHAL                                                                                                              XN MR DUDLEY


And the same corrections to the last line?‑‑‑To the last line, yep.


Any other corrections, Ms Serhal?‑‑‑No.


And with those corrections, is the statement true and correct to the best of your knowledge and belief?‑‑‑Yes.


I tender the statement, your Honour.


VICE PRESIDENT HATCHER:  All right.  The statement of Bernadette Serhal, including the confidential exhibit B1, will be marked as exhibit 15.

EXHIBIT #15 The statement of Bernadette Serhal, including the confidential exhibit B1


MR DUDLEY:  No further questions, your Honour.


I'm sorry, I do apologise.  I do apologise, your Honour.  I wanted to take Ms Serhal to – to the exhibit, confidential exhibit, that's marked BS1.  Do you have that folder?  Is that a document – is that exhibit something that you have prepared?‑‑‑Yes.


Could you assist the Commission by just explaining by reference to each of the pages in that document what it is, what appears on each page and how you have prepared that document?‑‑‑Yes.

***        BERNADETTE SERHAL                                                                                                              XN MR DUDLEY


Please?‑‑‑So I'll get you to turn to the assumptions tab, initially.  And so prior to commencing a lot of my workings, I sifted through the current GPM Award and noted down all the base rates and assumptions that I was able to decipher from the Award, which are noted there on the first page.  The second page then, in a matrices against each band and level, within those bands, the rates that would apply to those – like, to any individual working within those bands, on the various categories of penalties and allowances.  So the top table shows the minimum weekly rate of pay divided by – the second column shows the hourly rate determined from that on the 38 hour week and then so on and so forth, across the top, with the overtime penalty between one and two hours overtime, over three hours, an early shift penalty, night shift penalty. And the same thing applying to a weekend rate and then the public holiday rate on the end.  And then below, is essentially, the same thing as above but for casuals.  So these rates then drove a lot of the calculations in my modelling.  So turn back to the first page.  So I started my modelling by taking taking a sample week of the rota which was – which is made by a man ed's team, and published by the them.  From that, I took each employee, applied their band, their full-time casual status, their basic shift pattern and then from Monday through to Sunday mapped out the hours they worked from start to finish and the number of hours worked within each day.  And then at the end, just totalled that number of hours worked for that week, that sample week.  Next page.  That again, takes the same employees, by band and full-time status.  I then took their basic shift patterns and allocated that across each individual pay penalty category and shift – shift penalty category.  And then was able to decipher, from using the rate matrix that I previously referred to, using those hours and the rates that applied to that particular employee, by band and level, to come up with what they would have earnt, within that week, based on the penalties they would have incurred on that sample rota.  And then the next page across then is the wage comparison – sorry, the first column there is just any overtime allocated for that week.  So on a standard week for DMA, an employee works 45 hours within a week.  So we've had to calculate the difference between what they have worked that week and the minimum of 38 hours to calculate the overtime.  So once that's factored in, the total weekly pay, per the GPM, was compared to the weekly base salary, per their contracts.  And then we were able to compare whether the salary was paid over or under.


MR DUDLEY:  And can you explain the shading that you've used in that last column on that page 3, please?‑‑‑Yes.  So the shading ranges from red to green.  Green being paid over the award – the minimum award rate.  And red being paid under the minimum GPM prescribed salary.


And just for the sake of clarity, when you say, "Under", you mean – do you mean paid under what they would have been paid if all of the provisions of the Journalists Award applied?‑‑‑Yes.


Thank you.  And the last – the box at the bottom of that page, could you explain that, please?‑‑‑Yes.  So the box summarises for anyone that's been paid under the minimum requirements, with all the allowances applied.  The total that would need to, I guess, bring them into line with Award.  And that – that – that figure then annualised for 50 weeks of the year.  Which brings you to the 731.  And the next few pages show a provision for public holidays, which I've assumed to be 10 of throughout a year.  And the page following is a provision for exceptional news days that are considered unrostered days, which I've then assumed 15 days of those a year.  And taken the total wages - total increased wage cost to 819.  Compared this against the base salary that we currently pay, across the full year, for DMA employees.  And that's an increase of 9.26 per cent.


Thank you.


I've got no further questions, your Honour.

***        BERNADETTE SERHAL                                                                                                              XN MR DUDLEY


VICE PRESIDENT HATCHER:  So can you – I just want to take you through one example just so I understand this?‑‑‑Yes.


The broad black bands, which go across the first page?‑‑‑Yes.


I'm just looking at the first employee under the third band from the bottom.  So it says, "Editorial employee band 3, level 11, full-time, Monday to Friday".  Do you see that one?‑‑‑Yes.


So I'm looking at the third page.  If that person currently gets an amount of 2,884.62, do you see that?‑‑‑Yes.


That's just a fixed salary, is it, for that person?‑‑‑Yes, so that's their minimum – their agreed salary.


All right.  And then you say that if the changes were made they would – that person would be entitled to  3,575.49?‑‑‑Yes.  Based on the – the hours he's worked within this sample week.


And that's been calculated on the Award base wage for grade 11, has it?‑‑‑Yes.


And that's because there's – produced by 26 hours of overtime, is that what's happened there?‑‑‑Yes, that's – yeah.  So if you look at the first page, he works, on average, 11 hours a day.


All right.  Thank you.  Mr Chesher.


MR CHESHER:  I suspect, your Honour, that I'll get a much better grip of Ms Serhal's assumptions and costings in coming days.  And I acknowledge your comment that I'm not expected to examine Ms Serhal on this exhibit.


I'm not entirely sure how to approach this but it would be useful if Ms Serhal was available to answer queries, genuine inquiries, from the union as to the assumptions, et cetera.  I imagine that can be facilitated by her representatives but I would see the Commissions awareness of this request and I think it's reasonable, in the circumstances.

***        BERNADETTE SERHAL                                                                                                              XN MR DUDLEY


VICE PRESIDENT HATCHER:  All right.  Well, if you want to request particulars of the assumptions, I'm sure Mr Dudley will provide a response.  If it saves the need – particularly if it saves the need for Ms Serhal to come back for further cross-examination.


MR CHESHER:  Yes.  Thank you, your Honour.  I'll touch on that document, nonetheless, but very briefly at the end of my questions.


Does the Daily Mail Australia provide – does it have disaggregated annual accounts?  Does it publish its annual profit and loss statements, revenue, et cetera?‑‑‑Not publicly, but we do lodge it with the ATO.


Okay.  Are you part of the Daily Mail and General Trust?‑‑‑Yes.


Okay.  Are you able to inform the Commission of the current profit and loss situation of Daily Mail Australia?‑‑‑Yes.


Can I ask you what it is for the most recently completed financial year?‑‑‑The operating profit, is that what you're referring to?


Yes?‑‑‑Yes.  Currently, it's forecast at around $5.5 million loss.


At a $5.5 million loss.  And are those losses, in part, met by your parent company?‑‑‑Sorry, I don't understand that.


The Daily Mail and General Trust ‑ ‑ ‑?‑‑‑Yes.


‑ ‑ ‑ of which the Daily Mail Australia is a component of ‑ ‑ ‑?‑‑‑Yes.


‑ ‑ ‑ recorded, let's say for example, a 185 million profit ‑ ‑ ‑?‑‑‑Yes.


‑ ‑ ‑ last year, thereabouts, I think that's right.  That was before abnormals and taxes were taken away.  That – as part of that conglomerate of companies, I'm asking is Daily Mail Australia subsidised by that parent entity?‑‑‑Well, our loss would roll up into that group entity.


Yes.  But you are part of that larger enterprise, aren't you?‑‑‑Yes.

***        BERNADETTE SERHAL                                                                                                              XN MR DUDLEY


Yes.  From a finance perspective, does the Daily Mail Australia's model of online only publication cost more or less than publishing print and online?‑‑‑Sorry, are you talking about the cost base of a print verse a cost base of a digital ‑ ‑ ‑


Well, let me put it in another way.  Are the production costs incurred by an online only company greater or less than a company that publishes physical newspapers and runs websites?‑‑‑Well, it's all dependent on the volume that's produced by the newspaper you're in question currently, compare that to – and they're very different cost bases, as well.


So you're not prepared to ‑ ‑ ‑?‑‑‑Well, I couldn't tell you unless you tell me which specific, like, for example, a magazine that prints maybe 20,000 copies a month or such, would be far less than ‑ ‑ ‑


Well, let's just take that assumption forward.  If a proprietor does print 20,000 copies of a magazine per month and makes its content available online, is it going to have greater operating costs than a company that only produces that content online?‑‑‑Well, there are other costs involved with a website but comparing like for like ‑ ‑ ‑


No, I'm asking you about production costs.  I'm not talking about the composition of stories?‑‑‑But they're very different production costs so you can't really compare the two.


All right.  I'm lost as to how my question lacks clarity, I'm afraid.


VICE PRESIDENT HATCHER:  Well, but the costs of a print publication will vary hugely, depending upon its circulation and format, wont it?


MR CHESHER:  Yes, it would.


VICE PRESIDENT HATCHER:  So say if a mass production – a mass production newspaper tabloid probably has lower production costs, presumably, than a glossy small – small circulation magazine.


MR CHESHER:  No doubt, on a cost per unit basis, your Honour.  That is utterly true.

***        BERNADETTE SERHAL                                                                                                              XN MR DUDLEY


VICE PRESIDENT HATCHER:  So what's your – what are you asking the witness to compare?


MR CHESHER:  Well, I guess my proposition is that the Daily Mail ‑ ‑ ‑




MR CHESHER:  ‑ ‑ ‑ does not have print ‑ ‑ ‑




MR CHESHER:  ‑ ‑ ‑ costs and therefore, has lower operating costs than an equivalent company that produced a physical newspaper and produced an online newspaper, as well.  That is my proposition and if that lacks clarity, I apologise.


VICE PRESIDENT HATCHER:  No.  Well, it must be right, mustn't it?‑‑‑Well, if you're comparing a company that produces two – two products to a company that produces one product, then obviously, the company that produces two products will have higher costs.


MR CHESHER:  That's entirely my point.  I'm sorry if I appeared to take you on a circuitous route.


VICE PRESIDENT HATCHER:  But that's fairly meaningless, unless you look at the revenue side, isn't it?  I mean, it's a statement of the obvious, but unless we look at the revenue you get from selling the newspaper, whatever, it's just a meaningless proposition, isn't it?


MR CHESHER:  Well, I think it's a part answer, your Honour.  And it goes not just to the Daily Mail but the fact that in the published media sector of the new entrants since 2010 and 2012, no one other than the Saturday newspaper, I think, which is a bit of a niche product, has developed an operating style anything other than online.  They don't print newspapers.  And my question or proposition is that a company that doesn't print will have a lower relative cost base to a company that does.  So I'm not going to labour the point any further, your Honour.  I think I've explored that sufficiently.



***        BERNADETTE SERHAL                                                                                                              XN MR DUDLEY


MR CHESHER:  How would you characterise the Daily Mail Australia's human resource processes and payroll systems?  Do you believe that they're presently adequate?‑‑‑Payroll system-wise, it's sufficient for what we need to do, at the moment.


Okay?‑‑‑Sufficiently pays our employees.  HR-wise we do have a function overseas that manages this.


Yes.  Four rosters per year are almost entirely prepared manually, by several staff?‑‑‑They're prepared by the man ads team, who are responsible for that.


You say, in paragraph 72, that historically - 72 of your statement, that:


Historically, the Daily Mail Australia found it difficult to secure personal due to the company's complex roster system.


What do you mean by that?‑‑‑Well, based on if you look at the – the number of shift patterns and various, I think, voluminous staff in the editorial team it does quite – it does become quite complex to manage all those shift patterns.  And because of the nature of the operation, the news desk does operate all throughout the evening, as well, as all throughout the day.  So it's basically managing those shifts.




VICE PRESIDENT HATCHER:  So but why does that affect the attraction of staff?‑‑‑Well, we often find that difficult to understand.


Understand.  So looking at your confidential exhibit, just on a quick impression, am I right in saying that most of the additional costs, if the Award changes are made, arise from the fact that most employees are working – are well in excess of 38 hours?  For example, there seems to be a lot of perhaps working 45 hours?‑‑‑Well, the standard – the standard hours for each day is nine hours.


All right?‑‑‑So, yes, every employee will be incurring overtime.


Yes?‑‑‑But it also relates to the fact that we have a lot of staff starting in the afternoons and completing their shift in the mornings.

***        BERNADETTE SERHAL                                                                                                              XN MR DUDLEY


All right.  Thank you.


MR CHESHER:  Is the complexity that you refer to partly a reflection of the company's lack of investment in human resource systems?‑‑‑We have a human resource system.  We don't not have one.  It's ‑ ‑ ‑


You don't have a human resource officer, you have a – you say you have a human resource system?‑‑‑Sorry?


You have a human resource system, do you?  That's the one that's outsourced to ADP, that's mentioned in your statement?‑‑‑We have a payroll system.


Okay?‑‑‑Yes.  And then we have records of our – like, we have records, on hand.  But we also have a HR Manager, in the UK.


So you're completely satisfied with the adequacy of the systems that are employed by the Daily Mail Australia, to measure attendance at work and shift patterns, et cetera?‑‑‑Well, currently, we have no need to measure attendance.  But shift patterns are managed by the man ads team and there is three members of that team so it's currently sufficient.


You have no need to measure attendance?  Has that been the experience at your previous employers?‑‑‑Well, if a – what do you mean by attendance?


Well, I think it's pretty obvious?‑‑‑Okay.  You're – are you referring to ‑ ‑ ‑


Do you turn up to work or not?‑‑‑Well, yes.  We do when, like, the man ed's team and the managers in charge of the team, we do record attendance, but it's not formally recorded.


It's not formally recorded, okay.  Paragraph 45 of your statement says, "A time and attendance system would be useful" - "useful" is your word - "from an IT perspective.  Why do you say that given your answers to my questions?‑‑‑The proposal is to award staff on overtime hours worked.  We currently don't have any system in place to manage people that are working out of unrostered hours, so we would need something to manage this.


Would the Daily Mail Australia make improvements to its employee management systems irrespective of whether part 5 of the modern award applied to its editorial employees?‑‑‑If there's no need to measure overtime or clock‑in/clock‑out ‑ ‑ ‑

***        BERNADETTE SERHAL                                                                                                              XN MR DUDLEY


So you'd only incur these costs ‑ ‑ ‑?‑‑‑If we were required to.


‑ ‑ ‑ if the award were changed?‑‑‑Yes.


Can you remind me from your statement as to what those additional costs are?  I see that you've received several pieces of advice from external operators?‑‑‑Yes.  It ranged from about 17 to 32K for the first year, including development.


That's the first year?‑‑‑Yes.


And it's $11,000 for subsequent years?‑‑‑And $12,000, yes.


Thank you.  So that's the operational side, and that's a new system that's more or less purchased off the shelf or adds to your existing system so that you can measure compliance with the modern award?‑‑‑It's not off the shelf.


I'm separating here measuring employees - sorry, the cost to your internal systems and the cost of complying with the award, that is, the extra payments for overtime, et cetera, and the first part of that, your internal operating costs, you say that the cost is in line with the figures that you just provided to the Commission?‑‑‑Yes.


Does it strike you as unusual - and I draw you to paragraph 21 of your statement on page 5 - if part 5 - I'm commenting in square brackets here.  If part 5 applies, DMA will need to make changes to its payroll functions in order to ensure that it keeps an accurate record of the hours worked by each editorial employee.  So just to recap - I know we've come at this from a couple of different angles -Daily Mail Australia has no idea about how many hours of work its employees undertake each day?‑‑‑No, that's not true.


That's not true?‑‑‑We have a roster.


That's not consistent with your earlier answer?‑‑‑No, but we have a roster of rostered hours.  We just don't record, or formally record any overtime.


So you have an expectation out there but you have no sense of whether people are actually doing the work?‑‑‑We do via the managers that on staff at the time.  If an employee hasn't shown up for a shift the man ed's team will be notified, and again, if someone's worked additional shifts or worked overtime for a new story, the man ed's team will be notified.

***        BERNADETTE SERHAL                                                                                                              XN MR DUDLEY


Paragraph 30 of your statement, page 6, at the end of page 6, you oversaw internal work to ensure that full‑time employees are adequately compensated.  Why was that work undertaken?  Who requested it?‑‑‑There was a review done last year that I was supplied with and I took that information and investigated and we did an analysis on all the employees to ensure that it was in line.


VICE PRESIDENT HATCHER:  So this is just to check compliance with the award as it currently applies to you?‑‑‑Yes.


MR CHESHER:  Were employees consulted in that process or was there no need to?‑‑‑No, the managers of each area were in order to determine the bands and levels that each employee were categorised in.


Do you have a copy of the journalists award at the moment, Ms Serhal?‑‑‑In front of me, no.


Can I hand you up ‑ ‑ ‑?‑‑‑Yes.


I think I'm running out of awards here - in fact, I don't have one.


VICE PRESIDENT HATCHER:  I think Mr Dudley can assist you, Mr Chesher.


MR CHESHER:  Thank you.  I'd like you to open the award at clause 14, which sets out the bands of employment.  You'll see that there are three bands.  Can you tell me when you've got to that page?‑‑‑Yes.


Thank you.  Is it possible for you to give us an indication as to either how many editorial employees - sorry, is it possible for you to advise the Commission that throughout those three bands, when you conducted the analysis to ensure compliance with the Journalists Published Media Award, there are over 100 editorial employees, I think, at the Daily Mail, a tick over 100?‑‑‑With casual staff, yes.


Yes, that's right.  So that roughly 100 - and you've just conducted this detailed analysis.  How many editorial employees would be located in band 1 of clause 14.1?‑‑‑I wouldn't know off the top of my head.


You wouldn't know.  Do you have a sense?  Could you say anyone's classified in band 3?‑‑‑The workings do ‑ ‑ ‑

***        BERNADETTE SERHAL                                                                                                              XN MR DUDLEY


VICE PRESIDENT HATCHER:  We can go through the exhibit and count them, can't we?‑‑‑


MR CHESHER:  Beg your pardon?


VICE PRESIDENT HATCHER:  We can go through the confidential - I'm not saying you should do this now, but ‑ ‑ ‑


MR CHESHER:  I guess that is one way around it, your Honour, yes?‑‑‑Yes.


You say at ‑ ‑ ‑


MR DUDLEY:  Sorry, your Honour, can I just clarify, I don't think the exhibit identifies each and every employees of the Daily Mail, only those employees who were rostered on during that sample week, so counting won't necessarily give you the answer.  I just wanted to make that clear.


VICE PRESIDENT HATCHER:  There might be some on leave or something, is that ‑ ‑ ‑


MR DUDLEY:  Correct.




MR CHESHER:  I'm mindful you might not be able to answer this question either but I'll still ask it.  What would you say is this general age profile of a Daily Mail editorial employee?‑‑‑Again, I wouldn't know.  I would have to go into our payroll system and decipher that.


There's not a propensity of younger editorial employees?‑‑‑Yes, I would say it would be more skewed to a younger ‑ ‑ ‑


Yes, okay, and I'm not putting words in your mouth, but logic might suggest that those younger employees are paid at the lower reaches of clause 14.1.


VICE PRESIDENT HATCHER:  Sorry, that was a question?

***        BERNADETTE SERHAL                                                                                                              XN MR DUDLEY


MR CHESHER:  A proposition, your Honour.


VICE PRESIDENT HATCHER:  Yes, well, let the witness answer it?‑‑‑Sorry, can you repeat that?


He's putting to you that ‑ ‑ ‑


MR CHESHER:  My observation ‑ ‑ ‑


VICE PRESIDENT HATCHER:  He's putting to you that because of the younger skew of the workforce, they're more likely to be paid at the lower levels of the classification structure in the award?‑‑‑Yes, they'll be in band 1.


MR CHESHER:  Thank you.  You say at paragraph 13 of your statement that the proposed changes to the award will include - and then (a) through (g).  Then I look at paragraph 64 which seems to be quite different in tone and substance to your observation in paragraph 13.  With respect, what you put in paragraph 13 suggests an automaticity, that is, when someone works beyond 38 hours per week or works at a particular time, notwithstanding the direction of an employer, that they will accrue those benefits.  In paragraph 64 you say, from sentence 2:


DMA will also need to introduce a process for managing the approval of overtime to ensure that employees are only permitted to work authorised overtime and to reduce the possibility of employees working beyond their rostered shift and later claiming the additional time as overtime hours.


Do you think those two statements are consistent?‑‑‑Yes.


You do?‑‑‑Yes.


So you foresee in paragraph 13 carte blanche, where people more or less work overtime and turn up next week and say, "Where's my overtime payment?  I worked between 6 am and 7 am last week five days in a row.  Where's my shift penalty payment?" and yet in paragraph 64 you're saying you'll have to introduce a system, which is actually consistent with what is in the journalists award, which says that with respect to shift penalties people only receive that entitlement where they're instructed by their employer to work on a rostered system.  It's not ‑ ‑ ‑?‑‑‑Well, the ‑ ‑ ‑

***        BERNADETTE SERHAL                                                                                                              XN MR DUDLEY


‑ ‑ ‑ an entitlement that flows naturally to people.


VICE PRESIDENT HATCHER:  Can I just stop you there?  Paragraph 64 is about overtime.


MR CHESHER:  Yes, it is, as is paragraph 13.


VICE PRESIDENT HATCHER:  But it's simply saying that they'll need to have a system to ensure that any overtime work is approved so that presumably they can minimise the cost and not allow employees to bump up their salary by working excessive hours.


MR CHESHER:  And that is what MEAA says, your Honour, is what the journalists award requires.  I'm saying, and I could be in error here, that paragraph 13 suggests a free for all that cannot be managed by Daily Mail, and what we say is that the modern award actually hinges on an interaction between employer and employee about when they carry out work and whether they'll be remunerated sufficiently for the hours that that work is performed.


VICE PRESIDENT HATCHER:  Sure, but that currently doesn't matter to the Daily Mail because they don't have to pay overtime.


MR CHESHER:  I'm addressing ‑ ‑ ‑


VICE PRESIDENT HATCHER:  It will matter if they do have to pay overtime.


MR CHESHER:  I am addressing, your Honour, the possible scenario, and my point is that it's not clear to us based on Ms Serhal's statement whether the Daily Mail anticipates that overtime and penalty payments will be subject to a system of approval over time if part 5 applies to its operations.


VICE PRESIDENT HATCHER:  Ms Serhal, tell me if I'm wrong, but I understand in paragraph 64 that what you're saying is that, assuming, for example, somebody stays on their rostered shift of nine hours a day, if an overtime system comes in you'll need to put a system in place to ensure people stay within their nine hours and only work beyond nine hours if they're approved to do so?‑‑‑Yes.


Otherwise people might start stretching their hours and bumping up their pay?‑‑‑Yes.

***        BERNADETTE SERHAL                                                                                                              XN MR DUDLEY


Is that the point you're trying to make?‑‑‑It's to manage productivity.


MR CHESHER:  Not to mention that the default position in the journalists award, which puts it at variance with the vast majority of modern awards, is that overtime is not paid, it is rewarded in terms of time off in lieu.




MR CHESHER:  That is the longstanding position within the journalists award, and modifications were made to the award in the award flexibility process approximately 18 months ago to confirm that position, your Honour.  So there are several bumps along the road before someone accrues the right to payment for overtime, and there are other bumps in terms of whether someone is rostered on in such a way that they could attract the shift penalties in part 5.  Finally, your Honour, just going to confidential exhibit 1, and I'll be very brief.  Looking at the assumptions document, Ms Serhal, are you confident that that page of assumptions is only a reflection of the application of part 5 of the journalists award?  You haven't taken other parts of the award into consideration?‑‑‑I can't be 100 per cent certain, because I think I did read the whole award.


Were you assisted in forming these tests for your own assessment?  Did you receive external assistance?‑‑‑Yes, well, I initially did a lot of the assumptions on my own, but in conversations with the legal team as well as internally we adjusted them.


This legal team?‑‑‑Yes.


Thank you.  At first glance - and I don't wish to test you on this - point 3, public holidays with shift loadings, public holidays fall into part 6 of the award.  What is the point of the casual hours?  You're not calculating casual loadings as part of the impost that part 5 might bring about, are you?‑‑‑Sorry, I'm confused.  Are you referring to point 3 or 4?


Sorry, I'm referring to point 4, casual hours.  So you go base hourly rate times 25 per cent times shift loading.  Are you calculating the casual hourly rate in your assumptions or just the shift loading on that enhanced hourly rate?‑‑‑No, that will be the hourly rate.


I'll need to come back to this when I've had an opportunity to examine it further.  Calculating meal allowances, is that a part 5 ‑ ‑ ‑?‑‑‑Again, I'm not sure ‑ ‑ ‑

***        BERNADETTE SERHAL                                                                                                              XN MR DUDLEY


It's point 6.  You say, "Calculating meal allowances, part 5" - sorry, I say part 5.  It's just not certain to me, Ms Serhal, that everything that you've assumed is correct, but I'm not in a position to put to you with precision right now where it is your assumptions are potentially awry?‑‑‑Well, for the ‑ ‑ ‑


At page 3 of your confidential exhibit it was explained to the Commission prior to you entering the room - have you got that page, Ms Serhal?  It's got six columns?‑‑‑Yes.


The right‑hand extreme column is coloured?‑‑‑Yes.


I'm taking you to the second box down, and let's just start with the individual whose weekly pay per the award is $2,119.62.  Have you got that?‑‑‑Sorry, which box?


I'm sorry, it's third column from the right, Weekly Pay Per JPM, under the first flocked black line?‑‑‑Yes.


The figure is 2,119.62?‑‑‑Yes.


What is the reference to the figure in the box to its right‑hand side?  The figure is $5,384.62?‑‑‑Yes.


That's what you consider that part 5 being added to ‑ ‑ ‑?‑‑‑No.


No, okay.  Can you explain what that is, please?‑‑‑So the weekly pay per JPM is per my calculations what the employee would have been entitled to given ‑ ‑ ‑


Under what scenario?‑‑‑Under the award if it was to apply to DMA?‑‑‑Yes, thank you.


And the weekly base salary is essentially their base salary divided by 52 weeks.


VICE PRESIDENT HATCHER:  This person's at the top of the tree?‑‑‑Yes.


MR CHESHER:  This person should be running a media company, if that's their weekly salary?‑‑‑Yes.

***        BERNADETTE SERHAL                                                                                                              XN MR DUDLEY


So you contend that this person, by virtue of part 5 of the award applying, will receive another $3,265 per week?


VICE PRESIDENT HATCHER:  No, you've got it the wrong way round?‑‑‑No.


MR CHESHER:  Okay.  How have I read it?‑‑‑That's just to show that per the award this employee is in band 13.


Yes?‑‑‑And per the award, they receive the rates without any of the penalty and shift allowances.  So his total per the award would be 2,119, but we actually pay him 5,384, which means we pay him in excess of the award.


So the figure at the right‑hand column is theoretically the cut, what their salary would be reduced to?‑‑‑If we were strictly going by the award.


If you were strictly going by - this person - I'm not sure if you're familiar with the culture of exempted persons in the award?‑‑‑Yes.  This person would ‑ ‑ ‑


Does this person occupy a senior editorial position?‑‑‑Yes, and this person will be exempt, because he's in band 13.


But you've counted this person as part of the 800,000?‑‑‑No.


No, okay?‑‑‑As I mentioned before, the summary below only relates to the employees in the bracket that is below the JPM.  This is just here to show you that there are some employees that are above and below.


I'm going to retire and reflect on that confidential exhibit, your Honour.  I have no further questions for Ms Serhal.


VICE PRESIDENT HATCHER:  Thank you.  Any re‑examination, Mr Dudley?


MR DUDLEY:  No, your Honour.


VICE PRESIDENT HATCHER:  Thank you for your evidence, Ms Serhal.  You're excused for the time being, but we may have to get you back at some stage if there's further questions about this document.

***        BERNADETTE SERHAL                                                                                                              XN MR DUDLEY

<THE WITNESS WITHDREW                                                            [2.52 PM]


MR DUDLEY:  I now call Ms Kimberley Brunt.


THE ASSOCIATE:  Please state your full name and address.


MS BRUNT:  Kimberley Brooke Brunt, (address supplied).

<KIMBERLEY BRUNT, SWORN                                                       [2.52 PM]

EXAMINATION-IN-CHIEF BY MR DUDLEY                                 [2.53 PM]


THE ASSOCIATE:  Please state your full name and address.


MS BRUNT:  Kimberley Brooke Brunt, (address supplied).


MR DUDLEY:  Thank you, Ms Brunt.  Just to confirm, your name's Kimberley Brunt?‑‑‑Yes.


You're employed by Dailymail.com Australia?‑‑‑Yes.


What's your role there?‑‑‑Assistant managing editor.


Have you prepared a statement for these proceedings?‑‑‑Yes.


That's dated 26 July 2019?‑‑‑Yes.


Do you have a copy of that statement with you?‑‑‑I do.


Do you have any corrections to make to that statement?‑‑‑No.


So is that statement true and correct to the best of your knowledge and belief?‑‑‑Yes.


I tender that statement, your Honour.

***        KIMBERLEY BRUNT                                                                                                                   XN MR DUDLEY


VICE PRESIDENT HATCHER:  The statement of Kimberley Brunt dated 26 July 2019 will be marked exhibit 16.



MR DUDLEY:  Thank you, your Honour.  No further questions.



CROSS-EXAMINATION BY MR CHESHER                                   [2.54 PM]


MR CHESHER:  Yes, thank you.  Good afternoon, Ms Brunt.  When did the Daily Mail Australia commence operations?‑‑‑I wasn't working at the time there, but I believe it was towards the end of 2013.


Okay, so let's say six or seven years it's been around?‑‑‑Yes.


Possibly a bit of subjectivity involved in this question, but do you consider it to be a successful media business?  I'm not looking to put your job at jeopardy by getting you to answer no?‑‑‑Yes.


MEAA would like to tender, your Honour, yet again today some Nielsen rankings about digital audience.  A copy for Ms Brunt as well.


VICE PRESIDENT HATCHER:  Wasn't this covered in the - we already have this.  This is exhibit 10.


MR CHESHER:  In all of the excitement, your Honour, of preparing for this matter, I think it probably is exactly the same as what I handed up earlier.


VICE PRESIDENT HATCHER:  We'll give a copy to the witness.


MR CHESHER:  Other than to Ms Brunt.



***        KIMBERLEY BRUNT                                                                                                              XXN MR CHESHER


MR CHESHER:  Yes, I think so.  My apologies.  So looking at the first page, Ms Brunt - and please ignore the Top Sites Ranked by Audience for Food.  The May 2014 figures, they show the unique audience for what was then the MailOnline.  This was an incarnation prior to the organisation separating its partnership with Nine Entertainment.  Is that correct?‑‑‑Again, I was not working at the time.


Okay, but it's essentially the same thing that's been measured over time, MailOnline.


If I take you to page 2, and that being the Nielsen ratings for August 2016, and here we come to the change in title of Daily Mail Australia and we see that that figure of, let's say, 2.6 million unique audience members has grown to 3.208 million, and lastly, on page 3, the May 2019 rankings, we see close to five and a half million unique audience visits per month to your website.  Do those figures that I've just handed up to you strike you as accurate?‑‑‑I'm not in that position to answer.


Okay?‑‑‑Yes, that's not part of my role.


Well, they are the formal Nielsen rankings and the media community does seem to invest some importance in their monthly results.  Bearing in mind this exhibit, is it fair to say that the Daily Mail is growing and increasing its reach?‑‑‑You could say that.


I mean, as I've put to previous witnesses, it's a sector that's growing of its own accord.  It's not necessarily - it's just consumers are more attracted to web‑based information than what they - and more often than what they were under the old print newspaper scenario for example.  so the Daily Mail in Australia doesn't produce a print publication, does it?‑‑‑No.


That's just in the UK, et cetera, that that situation's been preserved.  At paragraph 39 on page 10 of your witness statement, Ms Brunt, you - I'll let you get to that?‑‑‑Yes.


You say that the Daily Mail Australia has limited systems to manage employee and human resource issues.  How would you characterise the sophistication of the Daily Mail systems in comparison to your former employers, Australian Consolidated Press and Bauer?‑‑‑My roles were different then.

***        KIMBERLEY BRUNT                                                                                                              XXN MR CHESHER


That's not what I'm asking you?‑‑‑No, I know, but I don't understand that question.


Ms Serhal - and I'm not sure if you've reviewed her statement, but in your statement at some length, in fact over two pages, from paragraph 36 through 38, you talk about a system that's dependent on manual inputs by staff in order to achieve sufficient rostering clarity and times of work throughout the day.  That's correct?‑‑‑That's correct.


I guess my general question to you is in 2019 does that strike you as being a reasonable level of sophistication for a major media employer?‑‑‑It works for our operation, yes.


It does work.  Okay, thank you.  Of the 92 full‑time and 17 casual employees mentioned at paragraphs 12 and 15 of your statement, how are those employees employed?  Do they each receive a contract of employment from the company?‑‑‑Yes.


Does that contract specify - well, you tell me.  What does that contract commonly specify?‑‑‑I don't understand the question.




Rate of pay?‑‑‑Yes.




Duties of work?‑‑‑Yes.


That's what we would probably call a common law contract, which is - you know, it's not necessarily auspiced by a modern award, even though it has to comply with it.


At paragraph 63 you say that you understand that the Daily Mail Australia has taken steps to ensure that annual salaries compensate editorial employees for the hours worked by those employees on an annual basis.  Can you briefly advise what those steps are?‑‑‑So we make sure that we've actually done an audit and we make sure that we comply with the award, and we also make sure that before we - when we're looking - we also look at the employee's experience and then look at that award.


Are you assisted in that process by an external adviser?‑‑‑Sometimes, yes.

***        KIMBERLEY BRUNT                                                                                                              XXN MR CHESHER


Can you give me a sense of the nature of that adviser?  Is it a law firm, is it a payroll company?‑‑‑It can be a law firm or it can be payroll company, yes.


All right, thank you.  Of the 92 full‑time and 17 casual employees - I asked Ms Serhal this - would your general impression be that the majority of those employees would be on the younger scale, say 25, 30 - under 30?‑‑‑Yes.


You don't have a copy of the award, do you?‑‑‑No.


Again, it's a question that I put to Ms Serhal.  I just wanted to draw your attention to clause 14.  I've just opened this for you.  You'll see that there are three bands of classification?‑‑‑1, 2 and 3, yes.


In your opinion would the majority of the Daily Mail's employees be concentrated in that first band, band 1?‑‑‑Yes.


Of the 109 editorial employees, are any of those personnel trainees or cadets?‑‑‑Yes.


Are they employed as cadets under the Journalists Published Media Award?‑‑‑Yes.  They're considered trainees, yes.


Their salary, by virtue of clause 14, would be considerably lower than those provided in band 1, those being a proportion of those salaries.  How many trainees of the 109 editorial employees do you believe there would be?  I'm not going to hold you to a precise figure here?‑‑‑Currently, at the moment, there is about seven.


About seven, okay.  Not a big number.  Less than 10 per cent, okay - probably closer to eight.  Do you consider the editorial workforce at the Daily Mail to be productive?‑‑‑Yes.


Your Honour, I seek leave to present a table imaginatively entitled Top 25 Most Prolific Journos.  You might be familiar with this.  There's three for the Bench and one for Ms Brunt.  Have you seen this table before, Ms Brunt?‑‑‑Yes.


Do you believe that it's an accurate representation of your employees' efforts?‑‑‑No.

***        KIMBERLEY BRUNT                                                                                                              XXN MR CHESHER


In what way do you believe it's inaccurate?‑‑‑I think the thing with this is that there are different departments in our company.  So you are news based, you are TV, showbiz, you are female.  You'll see that here, you know, 1 to 5, they are TV and showbiz based journalists, and so partly I think that some of these story counts could also be the fact that they are contributing to - they do more picture based articles rather than just writing an article.  So they may have one paragraph, a whole lot of pictures and then another paragraph, but there's not ‑ ‑ ‑


VICE PRESIDENT HATCHER:  Is this like a sidebar showing - you just put the blurb under the photo and that counts as a story, does it?‑‑‑No.  No, but they could be writing a lot of picture captions and a lot of picture‑based kind of stories rather than, you know, your longer, in‑depth kind of articles that may be news or the investigative team would do.


MR CHESHER:  So you don't consider that a photograph with a bit of a blurb should count as an article?‑‑‑No, it's counted as an article, but it's ‑ ‑ ‑


How much of the more long‑form journalism is practised by your Australian employees?‑‑‑I couldn't give you an accurate answer.


Is there any pressure on - are there any KPIs that apply to these editorial employees as to daily or weekly output, because they seem to be uncommonly busy?‑‑‑Uncommonly busy?


Yes.  I mean, notwithstanding your objections, to - I mean, it's not just the top five, it's number 11, number 15, number 23 and number 25.  I might have missed one - I did miss one, Matilda Rudd.  So you've got 10 out of 25 of people who are reputed to be the hardest working people in TV and showbiz journalism, to coin a phrase, but, I mean, content is content, is it not?‑‑‑Yes.


So the methodology that may have been employed in the compilation of this list is something that you might quibble with, but you can't challenge the fundamental assumptions behind it?‑‑‑I don't actually know what - really behind how they came to this in the first place and what they were looking at.

***        KIMBERLEY BRUNT                                                                                                              XXN MR CHESHER


So it appears from this list that people are working at a pretty cracking pace.  I take that as my observation, not yours, but their output is considerable.  Your roster information suggests that 20 hours a day someone from Daily Mail Australia is on call to perform their journalistic duties, seven days a week, and yet they're not entitled to the provision of part 5 of the journalists award.  Does that strike you as a reasonable state of affairs for those employees, especially those that are working what I think is still regarded as unsociable, unfriendly or irregular hours, including evening work, morning work and weekend work?‑‑‑No.


Thank you.


VICE PRESIDENT HATCHER:  So just to be clear on that last answer, when you said no, you're saying that's not a reasonable state of affairs?‑‑‑Yes.


MR CHESHER:  That concludes my questioning, your Honour.


VICE PRESIDENT HATCHER:  Mr Dudley, any re‑examination?


MR DUDLEY:  I've got no questions in re‑examination, your Honour.


VICE PRESIDENT HATCHER:  All right.  Thank you for your evidence, Ms Brunt.  You're excused and free to go.

<THE WITNESS WITHDREW                                                            [3.11 PM]


MR DUDLEY:  That's the case for the Daily Mail, your Honour.


VICE PRESIDENT HATCHER:  Thank you.  Do you want to jump straight into submissions, Mr Chesher?


MR CHESHER:  Yes, I'm happy to do that, your Honour.


VICE PRESIDENT HATCHER:  All right, go ahead.


MR CHESHER:  My friend Mr Crilly in his opening remarks said something that was included in his formal submissions, and that is that MEAA say that print and online are the same thing.  We don't say that they are the same thing.  They are in fact different components of the news publication exercise.


We say that in many instances where print and online operates, that those tasks have been integrated, that is to say that the same journalist produces content for the print newspaper and for the online outlet run by the proprietor.  We're not fusing the two expressions, and I just wish to make that clear.

***        KIMBERLEY BRUNT                                                                                                              XXN MR CHESHER


We disagree that there is much that is curious about MEAA's case.  Our case centres on the relevance of the modern award and how in 2019 it matches contemporary workplaces and of course the increased flexibility of those workplaces, which we say Is beyond doubt.


It is presently unchecked within the now mature online media sector that flexibility is the name of the game.  It doesn't appear to have a deadline, and in many instances reasonable employee rewards for contributing to that increased flexibility, albeit after three or four thousand positions have been shed from the sector in a decade, is not being honoured or observed.


Mr Eales, who wasn't able to nominate his current employer - who can blame someone in that situation given the fluidity of the sector, but he did in MEAA's opinion unreasonably resist the proposition that work intensity and flexibility had increased in the period since the modern award commenced operation.  To go through what was Australian Community Media, we say that job cuts have cut a swathe through that organisation, and those that remain have rolling deadlines.  They write, check and now upload stories directly onto the web without much editorial supervision at all.


They then follow the story for developments because they have rolling deadlines, and then they're obliged to follow the story on the many social media offshoots that there are to see how the story's tracking, how successful it is, knowing, in many instances, that those very metrics are going to play a role in their future at the organisation.


Ms Elstub of Channel Nine was unfortunately not able to answer a number of critical questions of MEAA, but it did occur to us that of the Nine Network's presently 5000 or so employees, there's a very substantial chunk that are entitled to everything under the Journalists Published Media Award.


It's now clear that a number of these website employees are entitled to the equivalent of those conditions under the broadcasting award, yet we have the 70‑odd direct reports to Ms Elstub across five websites which do not share that entitlement, an entitlement that we say can be satisfied by an organisation with the balance sheet health of Channel Nine.


It was also asserted in our friend's submissions that MEAA claimed that there was rivers of advertising gold for the online only sector.  We did not say that and we don't say that.  We say, and this is carefully stepped out in our submissions of March this year, that the pool of advertising dollars has been falling, certainly sharpest in the print media sector.


There is considerable growth in online advertising, but that is tempered by this fact, that easily the majority of all advertising expenditure in Australia since 2016 and to the present date is funnelled into Google and Facebook.  These are established facts verified by the ACCC and other entities.


We don't say that online is awash in money.  That's simply not the case, and the facts as we've presented to the Commission don't sustain that either.  What we do say is that there is an inequality that needs to be addressed in this award, and that inequality is drawn from maintaining a division between print and online publications.


With respect to the Daily Mail's evidence, it did occur to MEAA that the Daily Mail's internal systems require revision.  Whether it costs $17,000 or not, I don't know.  Irrespective of what happens to this award, when people take 70 per cent of their working life, several employees, to compile rosters that other organisations of scale can easily do on an ongoing basis, it's not good enough for the Daily Mail to say, "Award compliance is going to cause a revolution in our payroll systems."


They don't know whether people are turning up to work.  Plainly they don't want - or at least Ms Serhal appeared to agitate that they don't want the added cost of part 5.


VICE PRESIDENT HATCHER:  It's beyond doubt that if someone like the Daily Mail has to start paying overtime, then an obligation under the Fair Work Regulations kicks in for them to record hours.




VICE PRESIDENT HATCHER:  Then they have to establish a system which does that.  That's just a statement of the obvious, isn't it?  It's not controversial.


MR CHESHER:  Yes, your Honour.  I guess the point I'm making is that it does strike us - it's not a complaint that we've confronted in negotiations over many years that requests that we've put on the bargaining table are going to challenge the manifest inadequacy of the internal management systems of a company.  Perhaps I'm making too much of it.  I apologise.


VICE PRESIDENT HATCHER:  It's not inadequate now because they don't have to do it.


MR CHESHER:  It is exceedingly manual, but I rest on that question.  Your Honours and Commissioner, the journalistic workforce is, in our submission, younger, it is digital and its output is monitored very closely.  We say that the journalists award needs modernisation and relevance in order to achieve the modern award objective.


Finally, I address Mr Dudley's position in the alternative about part 5 applying, and he put forward three possibilities, possibly combinations of the three.  Firstly, I believe he said that not all of the provisions of part 5 apply if the Commission's minded to extend application of those provisions to the online editorial community.


Secondly, he proposed a transition period for compliance, and, three, that whatever provisions survive that are accepted by the Commission should be gradually applied of several years.


I indicated to Mr Dudley this morning that with regard to his second point, MEAA would have no contest with the idea that a six‑month grace period be provided to online providers to update their systems appropriately.  We do not support picking and choosing which parts of part 5 are moved into general application, nor are we supportive of the gradual application over several years of whatever provisions do apply.  MEAA's case rests, your Honour.


VICE PRESIDENT HATCHER:  Sorry, can I just check something with you?




VICE PRESIDENT HATCHER:  Specialist publications, you said you couldn't identity any print specialist publications who would still be able to access that clause.  Is that right?


MR CHESHER:  That is correct.  Look, kind of in a bob each way situation here, your Honour.  It's a set of provisions which has never caused us any discomfort, because no one has sought to enforce them, and that pre‑dates my entry into the organisation, but I can't say with complete confidence that there is no one out there that would say, "Hang on, I'm a specialist publication operator and no way in the world are you going to get away with this."


Our assessment, our professional assessment, of the media sector over several years, is not only that most of those respondents have, you know, kicked off into the ether, but that industry, if it can be described, of sort of custom publishing business to business publications, which is, I think, part of its work, much of that work is, as I said in our earlier submissions, performed by publishers of scale.


In our submissions from March or April this year I drew attention to companies such as Yaffa Media that publishes like Bicycle Australia, for example, or Guns Australia.  Those are some of its publications.


VICE PRESIDENT HATCHER:  What I'm getting to is does the definition of "specialist publication" on page 5 of the award in clause 3.1 include online publications?  That is, could you have a specialist online publication?  Because if it did, there'd be plenty of those, I would suspect.


MR CHESHER:  I don't know the answer to that.  I only know that in clause 23, I think, of the award, online specialist


publications receive even fewer of the award's protections than a printed specialist publication.  So we're genuinely in a quandary here, your Honour.  It's like is there life in the universe?  We can't really detect whether there's life in the specialist publication sector, despite our best endeavours.




MR CHESHER:  Thank you.


COMMISSIONER BOOTH:  Before you go, Mr Chesher, one of the issues I think it was Mr Crilly raised was concerned about the demise of the words "newspaper" and replacing them with "news publication" throughout the exposure draft.  I was just interested whether you had a response to that, particularly - and it was just a thought I had, is it's pretty clear that in the digital space there's a lot of publications that I at least wouldn't call news publications, and are they captured by that new generic term?


MR CHESHER:  There may, your Honour, be challenges to the elegance of MEAA's formulation.  If you'd just give me a moment, please.  As I said earlier, we don't seek to - well, the answer to your question is, and I believe this to be the case, that we have used the term "news publication" in instances where the term "newspaper" has been used.




MR CHESHER:  To draw your attention to - if you have the exposure draft, it's - actually, I should read from the award as it now stands rather than our exposure draft, because there is a better answer to your question.  The award at clause 3, page 5, and I'm looking at the definition of "published media industry" means:


The industry concerned with the publication of newspapers, magazines, periodicals, journals and online publications and the provision of wire services.


In the exposure draft put forward by MEAA, we make minor changes, proposed changes, in that we say that the published media industry means:


The industry concerned with the publication of print or digital:  news publications, magazines, periodicals, journals and the provision of wire services.


It's not a complete solution, your Honour, but it seeks to address this binary environment that we now have.


VICE PRESIDENT HATCHER:  If you go to clause 21.2 of the existing award, it has differential shift penalties based upon the premise that you're a newspaper or magazine.  If we remove the exemption for online publications from part 5, how will that apply to an online publication?  That is, 21.2, if you replaced "newspaper" with "news publication" it would still create problems, because, for example, The Guardian or the Daily Mail wouldn't, I think, fit into any of those, even if they were called news publications.


MR CHESHER:  I'm not sure I understand your question, your Honour.


VICE PRESIDENT HATCHER:  Well, I mean, The Guardian isn't a metropolitan daily newspaper publication.




VICE PRESIDENT HATCHER:  It's national, and I'm not sure if ‑ ‑ ‑




VICE PRESIDENT HATCHER:  It's not daily, it's just there for perpetuity.


MR CHESHER:  You're correct, it doesn't grapple with that, and that is a matter, I think, that would require some redress down the track.  So, yes ‑ ‑ ‑


VICE PRESIDENT HATCHER:  I mean, for example, and it comes back to the costings, which loading is to apply to the Daily Mail, the 15 or the seven and a half?


MR CHESHER:  Well, just bear with me, your Honour.  If you want to say something.


MS MCINERNEY:  Would you mind?  Your Honour, would you mind if I ‑ ‑ ‑




MS MCINERNEY:  I just want to make a small point.  In clause 4.9, where we're talking about exemptions again, there is a possibility of a national metropolitan daily newspaper.  The imposition is there.  So it's not that it doesn't grapple with it, per se, in the Award already, it just doesn't grapple with it in that particular section pertaining penalties.


VICE PRESIDENT HATCHER:  Well, I mean, 21.2 doesn't even deal with a national daily newspaper, does it?


MS MCINERNEY:  Well, I think if you're talking about a metropolitan paper, you are talking about where it's based, and the Guardian is based in Sydney and Melbourne.  I mean, that's the only definition of national we have.


MR CHESHER:  I do agree there would be work to do to ensure harmony throughout the Award, your Honour, in that, yes, we'd rather crudely ‑ ‑ ‑


VICE PRESIDENT HATCHER:  So the definitions, your point is it's based on distribution rather than location?






MR CHESHER:  So there is some functional ‑ ‑ ‑


VICE PRESIDENT HATCHER:  But even talking about distribution is not a term that's apt to describe online publication.




VICE PRESIDENT HATCHER:  I mean – yes, all right.


MR CHESHER:  Thank you.


VICE PRESIDENT HATCHER:  Mr Crilly, you first?


MR CRILLY:  Yes, your Honour.  As I said in opening, we have filed reasonably comprehensive written submissions.  We rely on those and I don't propose to take the Bench through all of that in any detail.  I would simply raise a number of issues about each matter in respect of which we've heard evidence and arguments today.


As I took your Honours and Commissioner through this morning, the first issue which concerns both of my clients is the push to introduce a new criterion which would be mandatory before a person can be regarded as exempt, in toto, from coverage of the Award.  That is, that they be – words to the effect that they be in a senior managerial role on an ongoing basis and that they be classified and paid at at least the grade 11 range – or the Level 11 range, rather.


The submissions on that are relatively brief, in addition to the matters that I've raised this morning, including in response to questions from your Honour, the Presiding Member.  No basis has really been advanced on which this is necessary in order for the Award to achieve the modern Awards objective.  There's no evidence whatsoever of any issue in practice with how these provisions operate.


VICE PRESIDENT HATCHER:  You're talking about 4.9?




VICE PRESIDENT HATCHER:  Well, I mean, with respect, on its face, it's plainly not only inappropriate but doesn't ‑ ‑ ‑


MR CRILLY:  Sorry, your Honour.


VICE PRESIDENT HATCHER:  ‑ ‑ ‑ comply with the Act.


MR CRILLY:  I may have said yes too swiftly, your Honour.  I'm speaking of exemptions chiefly with regard to metropolitan daily newspapers.  Are you speaking of that or ‑ ‑ ‑


VICE PRESIDENT HATCHER:  Sorry, I thought you were raising the issue of the formulated exemption from the Award by reference to senior – I can't remember the formulation ‑ ‑ ‑








VICE PRESIDENT HATCHER:  Well, that's – with respect to the current Award, that's a modification to 4.9, is it not?




VICE PRESIDENT HATCHER:  So my point is, with respect, is that 4.9, on its face – regardless of what the change should be, on its face is plainly a provision which could not meet the modern Awards objective and probably breaches the prohibition on interstate differentials.


MR CRILLY:  One ‑ ‑ ‑


VICE PRESIDENT HATCHER:  That is, if something needs to be changed ‑ ‑ ‑




VICE PRESIDENT HATCHER:  ‑ ‑ ‑ whether it's the one proposed by me or something else is a different question, but on its face, it's plainly inappropriate.


MR CRILLY:  Well, to the extent that the need is for clarity in how it operates - and I accept what your Honour says about that - one might need to impose some kind of criterion on how this is intended to operate, whether it's the X most senior positions within a newsroom, whether it is a monetary amount, as has been the case in the Broadcasting And Recorded Entertainment Award, to which my learned friend took the Bench earlier today.


We say that what they have proposed specifically doesn't work, because it's uncertain, because it's unclear who exactly it is meant to apply to, what a senior managerial role is.  Whether it – I mean, there's not much I can say to supplement our written submissions on that point.  It's just ‑ ‑ ‑


VICE PRESIDENT HATCHER:  Well, what I'm really inviting is, perhaps you might want to consider it as an alternative proposition which would tidy up ‑ ‑ ‑






MR CRILLY:  Yes.  I think I would need to take instructions, your Honour ‑ ‑ ‑




MR CRILLY:  ‑ ‑ ‑ in relation to an alternative position which I'd put to you.  If that is the Bench's preference, certainly we can do that.




MR CRILLY:  What there is not, and we don't show it from this submission, is any evidence which establishes that what the MEAA has sought is necessary.  To the extent that there is evidence about this issue, it's given by Mr Label in his first statement, which is exhibit 12, by Mr Watson in his statement, which is exhibit 8.


There is one comment I should touch on.  My friend, this morning, said something to the effect that the formulation which the union seeks to introduce is going back to old language, which has worked in the past.  With respect, we say that's not accurate.  When one looks at the history of these exemption provisions in the extracts which are provided from paragraph 126 and onwards of the MEAA submissions - I don't need to take your Honours to that in detail, but ‑ ‑ ‑


VICE PRESIDENT HATCHER:  Sorry, paragraph 126 of what?


MR CRILLY:  The MEAA written submissions, your Honour.




MR CRILLY:  And it's perhaps clearest from around paragraph 140 onwards.  The Bench, in the 1984 exemptions case, and previous members of the Industrial Tribunal of the day, have made various comments about the nature of positions which might be exempt.  At the end of the day, however, when those matters had been reduced to enforceable Award terms, they have been expressed much more certainly in terms of positions which are exempt, which are made, or positions which are equivalent by either agreement between the parties, as they then were, or by order of the Commission.


VICE PRESIDENT HATCHER:  So where did the current position come from?


MR CRILLY:  It appears, as best we can tell, your Honour – and there's no written decision about it as best we can ascertain – that it first came about in the 1991 Journalist Metropolitan Daily Newspapers Award.




MR CRILLY:  There are extracts from that at paragraph 46 onward of the MEAA submission.  Here, you are still dealing with an Award which delineates exceptions by the proprietor, but it simply refers to a number of positions within each masthead.


Thank you.  That's all I propose to say about exceptions.  The rest of submission we have reduced to writing.  The second variation which is proposed, to which I referred this morning, is one which affects all the press uniquely, as amongst my clients.  And it is the proposal that the current clause 13.7 of the Award not apply.  13.7 has the effect that an employee at a regional daily newspaper can be classified only at Level 10 and Level 9, in the case of country non‑daily newspaper.


There simply hasn't been a case made for the removal of that.  What has happened, as we said in the submissions, is that the modern Award is an amalgamation of Awards which applied separately to newspapers of the various characters, based on location and publication schedule.  Metropolitan newspapers had larger grading structures and higher maximum rates of pay.  And when they've been accommodated within a single 13‑level structure within the established three bands, the same relativity – there has been an intent made, in any event, to maintain those relativities.


The only submission which is really advanced by MEAA about that matter is that it's some fetter on the ability to classify a journalist higher than Level 9 or 10, as relevant.  That may be so, but it has no practical consequence.  This is a safety net Award.  Employers and their employees are free to agree that they be paid more.


The third matter is what we have called the news publications variation, which is a matter to which Commissioner Booth and yourself referred in the course of my friend's closing remarks.  We make precisely the point that your Honour, the Vice President, raised with my friend, which is that this Award does distinguish the various rates and other conditions which apply, in some instances, by reference to the type of newspaper on which one works.


And those newspapers are defined by reference to two things, (1) the principal location of distribution, and (2) the frequency of publication.  And neither of those is apt to capture an online publication, which deals with a website that may be updated continuously and in any event, it's very difficult to say how often it is published and could be distributed anywhere that it's accessed.  That raises, perhaps, a more fundamental issue, if the Bench accepts my friend's submission, that point 5 ought be extended to online‑only operations.


As regards associated online publications of newspapers, it creates the problem that when one amalgamates for the purposes of Award conditions, for example, the Wimmera Mail-Times and its website, it becomes difficult to say whether it is now distributed in a country location or whether it is still published three times a day.  It might have unintended consequences.  And we say it's a more significant matter than it's being presented by the union.  And that, I think, is the difference between my friend and I as to the disagreement of whether we say they are amalgamating the two.


Then there is the issue of weekend penalty rates, which applies, again, currently to regional daily newspapers, metropolitan daily newspapers but not country non‑daily newspapers.  The position, effectively, is that that is a result of the Award modernisation process.  That 10 per cent penalty did not appear in the pre‑modernisation Award covering country non‑daily newspapers, which is accepted by my friends in their submissions.


And we say no case has been made to change that, effectively.  There has been a significant jurisprudence, in particular in this review, on the issue of how one goes about approaching an application to vary penalty rates in an Award.  And there's a great deal involved.  Now, the evidence, such as it is, on this point, from which it's been led by the union is the statement of Ms Camarri, who gave some evidence of the disutility of weekend work for herself, but didn't purport to speak to anyone else, as best I can ascertain.


And further, she sought to draw comparison between the work that she does, and the work done on regional daily newspapers and say that there's effectively no difference.  In cross-examination, of course, Ms Camarri accepted she'd never worked on a regional daily newspaper or had any first‑hand experience of how that work is done.  So one could not rely on that comparison, we say.


We say instead one would rely on the evidence of Mr Eales, who gives evidence in his statement, at various points, about the differences that exist and continue to exist between the daily and non‑daily newspapers in the regional areas.


VICE PRESIDENT HATCHER:  What difference are they as relevant to weekend work?


MR CRILLY:  Firstly, the frequency with which it's required.  He gives evidence as to there being a much higher incidence of weekend work in those newspapers.  The other difference ‑ ‑ ‑


VICE PRESIDENT HATCHER:  Which newspapers?


MR CRILLY:  I apologise, your Honour.


VICE PRESIDENT HATCHER:  A higher incidence in which newspapers?


MR CRILLY:  Regional daily newspapers.


VICE PRESIDENT HATCHER:  Than for country ‑ ‑ ‑




VICE PRESIDENT HATCHER:  ‑ ‑ ‑ country non‑daily newspapers.




VICE PRESIDENT HATCHER:  So how does that justify the existing provision?


MR CRILLY:  Well, we say first, it's not a matter of us needing to justify the existing provision.  We frankly say we could have (indistinct) no evidence and the union's case simply doesn't get them there.  But as to our positive case in the defence of this, it is put against us that increased weekend work is a justification for inserting the penalty.  We say the level of weekend work is still different to the extent that that's relevant.


There are other matters, of course, which are relevant to the setting of the safety net which is fair to both employers and employees, and that would include the nature of the business and ability of these companies to bear the cost.  When one is speaking of country non‑dailies axiomatically, they're smaller companies, smaller employers.


VICE PRESIDENT HATCHER:  Well, in this case, Rural Press is one large employer which has a variety of titles that fall within either definition.  It's not a case of a small employer, it's a case of fairly arbitrary distinctions being made between publications within a single employer.


MR CRILLY:  There are two points I'd make in relation to that, your Honour.  The first is, with respect, we don't necessarily accept the distinction is arbitrary.  It's one that's been maintained for some time in Awards of the Commission reflected in industrial arrangements which have been agreed with the union, and one which simply reflects the realities that expectations and levels of work are different in a paper that publishes daily as opposed to thrice, twice or once a week.


The other is that, of course, my client, as a growing concern, needs to consider each element of its enterprise and ensure that each product is viable.  And so the fact that it's one large company doesn't need to detract attention from the necessity of ensuring that the conditions are appropriate to each newsroom.  Those are the submissions, your Honour, for Rural Press.  There is one ‑ ‑ ‑


COMMISSIONER BOOTH:  I've just got one question ‑ ‑ ‑


MR CRILLY:  Yes, Commissioner.


COMMISSIONER BOOTH:  ‑ ‑ ‑ Mr Crilly.  I understand you say it's not your obligation, but the union's to bring a change.  But we've got the obligation, obviously, to apply 134.  Now, I know you've made some general submissions about that, but in relation to weekends and public holidays, the Act's pretty explicit.




COMMISSIONER BOOTH:  What do you say that – why should we obviously not apply it in these cases?


MR CRILLY:  Certainly.  And this bleeds over into the issue I'm about to come to with online‑only publications, but it's an issue that will come up, so I'll just deal with them both.  I'm not sure anything I'm about to say is controversial, I can hand up extracts from the Full Bench's decision in the penalty rates case if need be, and I believe Mr Dudley may hand up some excerpts, in any event.


The Bench, in that case, considered what the then "new" section 134(1)(d)(a) means, and what its effect is in proceedings of this kind.  Its headline conclusion, if one likes, is it does not oblige onto include in modern Awards a provision that provides additional remuneration for work of the relevant kinds.  And in that respect, the Full Bench indeed observed that about half of modern Awards at the time didn't contain weekend penalty rates.


And it would have been a curious outcome if the section had required that that change in every instance without that being made explicit.  And that aspect of the case was not challenged on judicial appeal when the matter went to the full Federal Court.


The second is the Bench made some observations about what one should consider in determining – in considering that factor.  Amongst them is the level of disutility associated with the work, which goes both to the effects on employees, of which beyond Ms Camarri, there's no evidence, and of employee preference, of which, in relation to online‑only publications, there is some evidence.  We accept that it's general from Ms Elstub and Ms Raleigh to the effect that some of their employees do prefer to work at those times, and it affords them flexibility to work from home, et cetera.


General, as I say, but uncontradicted and not subject to cross-examination.  The third point is that the introduction of subsection 1(d)(a) did not change the overall exercise which the court – which the Commission, I apologise, is required to undergo.  It is still required, at the end of the day, to determine whether the Award is a fair and relevant minimum safety net of terms and conditions, when taken together with the National Employment Standards.


What has been introduced, effectively, is one additional mandatory consideration.  It's something to which the Commission properly should, and indeed must, have regard, but it's not determinative.  That's what I would say in response to your question, Commissioner.  Coming to, then, the remainder of what I wish to say about online‑only matters, I won't speak at any great length, because that is a matter which is peculiarly the subject of Mr Dudley's case.


But Nine had filed written submissions dealing, principally, with this issue, its further submissions.  It has filed evidence from Mr Rowley which is uncontradicted.  It's not subject to cross-examination.  In relation to the issues that advertising revenues are very stressed, that it's been eaten into by Facebook and Google, which are matters which my friend accepts, Ms Elstub has given evidence that there are slim margins that were subject to some challenge, and she was provided with Nine's most recent results, as she said in re-examination.


However, that page is not for the online‑only parts of the business with which my submission is concerned alone.  It included a range of other things.  And a cursory look through the MEAA's submissions is enough to demonstrate that revenues in this area are challenging, at the very least.


So against that backdrop, you have these workplaces that, because of the nature of their operations, do require flexibility and perhaps, in some respect, Nine and Daily Mail are not the best poster children for them.  Because the same considerations and the same effects will be felt in relation to any variation by any number of smaller newsrooms, potentially.  We say the case hasn't been made out.  I repeat what I've said in relation to the particular element of the modern Awards objective, on which my friends most heavily rely.


As a closing observation on the entirety of the case, I don't foreclose that these are serious issues, and they might be issue which warrant further examination.  But making a finding of that kind has not, in the past, in this review, dissuaded the Commission from, nonetheless, finding a case has not been made out and, in effect, inviting the parties to come back and build that case properly under another section of the legislation.


We say that that must follow here because whatever the issues that have been canvassed today, that your Honour's have put to me and my friend, the union's case comes nowhere close.  Those are the submissions.




Mr Dudley?


MR DUDLEY:  Thank you, your Honour.  I don't propose to take up very much time.  In some ways, Mr Crilly has said our submissions are set out in writing in detail.  The short story from our perspective is that nothing that has come out of the evidence today has changed anything that we say in the submissions that we've put in writing.  I do just want to hand up one case to your Honour's, just to emphasise the point that Mr Crilly was just talking about, which is the necessity for a case to be made out that the relevant amendment proposed is necessary for the Award to meet the modern Awards objective.


Now, I hand up to you the Stevedoring Industry Award case from 2015.  I've given you the whole case, but I want to take you only to paragraph 144 on page 27.  So this is in the decision of Deputy President Kovacic and Commissioner Roe.  In the preceding paragraphs, from 141 on, they consider the preliminary issues decisions by the Full Bench in 2014, emphasising the need for a party seeking a change to advance a merit argument in support of the variation.


Paragraph 142, they make reference to the Security Services Industry Award decision, again emphasising the need for parties seeking a change to advance detailed evidence of the operation of the Award.  And in 144, draw those principles together to say two things.  One is that there's an assumption that the Award achieved the modern Awards objective at the time it was made, and I take the point that was made earlier today, that the modern Award's objective has changed since the time that this award was made.  But nevertheless, the assumption must be that the Award did achieve that objective at the time it was made.


Secondly, though, and most importantly, an application seeking a significant change will need to be supported by submissions addressing the relevant legislative provisions and by probative evidence, which will usually include evidence of the operation of the Award, the impact of the current provisions on employers and employees covered by it, and the likely impact of the proposed changes.  And we say, as Mr Crilly has said, that the union's application in this regard doesn't pass muster, as far as that's concerned.


VICE PRESIDENT HATCHER:  Sorry, what's missing?


MR DUDLEY:  Well, as I said in opening, your Honour, what we say is there's no linkage between the facts that Mr Chesher has put to you, the decline in the industry, the use of social media and so forth, job losses in the industry.  There's no linkage between that – those facts don't justify the application of part 5 of the Award to online‑only publications.


For example, Mr Chesher, I think, handed up earlier today exhibit 2, which is an article:


Working for less, the aftermath for journalists made redundant.


Now, the highest one can take that article – Mr Chesher took us to it, a number of parts of it – is to say that journalists who were working prior to 2012 and were made redundant during that period now are paid less.  That's as far as the article goes.  It doesn't say that that's a result of anyone moving from the print media to online‑only publications.  It can't possibly be used as a justification for the application of part 5 of the Award to online‑only publications.


VICE PRESIDENT HATCHER:  Well, it demonstrates at least this.  That there are people who used to work in print, who have lost their jobs, moved to online publications doing journalism as they did before, and previously they got weekend penalty rates and other penalty rates, and now they don't.  It might be a statement of the obvious, but that's ‑ ‑ ‑


MR DUDLEY:  With respect, your Honour, I don't think the article does that.  I don't think – it doesn't address the job to which the person went after they left the print media industry.  It looks at their income following the redundancy between 2012 and 2014.  It doesn't say that those people went to an online‑only publication.  They could have gone to any number of places.  They could have left journalism, they could have remained in journalism, but in a different print media publication.


VICE PRESIDENT HATCHER:  Sure.  And I'm putting aside for the time being what it says about their earnings.




VICE PRESIDENT HATCHER:  Well, it's a simple fact that some people have moved from print to online, and we pick up the Award and we say that they're still journalists, but suddenly they're not getting all these penalty rates.


MR DUDLEY:  I will accept, your Honour, some people have moved from print to online.  There's very, very limited, if any, evidence other than assertion in the union's submissions in that regard.  We don't cavil with the proposition that some people have moved, yes.  But simply saying that some people have moved does not justify such a significant change.  I think the position ‑ ‑ ‑


VICE PRESIDENT HATCHER:  Some of these things are just questions that are being by the terms of the Award.  If you have someone who's working on the online arm of the Sydney Morning Herald and they're getting penalty rates, and you've got someone working for the Daily Mail and they're not, what's the rationale for that?  These Awards are meant to be, sort of, neutral and regulatory terms and not favour one form over the other.


MR DUDLEY:  The answer I would give to that is akin to Mr Crilly's answer.  It's not for us to say what that rationale is.  That is for the union to undertake that analysis and make the submissions as to why they should be treated the same.  That's the union's case, as we apprehend it.  We say they haven't got there because they haven't provided sufficient probative evidence of that.


VICE PRESIDENT HATCHER:  Evidence of what?  What would they need to provide?


MR DUDLEY:  Well, they haven't provided any work value comparison.  We have one statement from Mr Nous who says, "I work at the Guardian at the moment and I used to work in print media".


VICE PRESIDENT HATCHER:  So why is that about work value?  We already know they're assessed the same as work value, because we have the same pay grades for people whether they work in papers or online.  So the work value is treated by the Award as the same, but their disabilities are treated differently.


MR DUDLEY:  They are, your Honour.  And what we say is the union hasn't demonstrated that there is a particular disutility as a result of the fact that penalties aren't paid.  Yes, the Award does not provide penalties for online‑only publications, but there is no evidence to suggest that that has played out in any particular way.  That is the case on the face of the Award only, and we say the evidence doesn't demonstrate that that has led to a particular disadvantage for people employed in online‑only publications.


VICE PRESIDENT HATCHER:  Well, your own witness said that was not a reasonable situation.


MR DUDLEY:  Well, that's correct, yes, your Honour.  That's that witness's perspective on things, I accept that.  So what we say is the union – I mean, I repeat myself, and I don't wish to take up more of your time.  All we say is that the union hasn't made its case.  We've had lots of gratuitous comments by Mr Chesher this afternoon about the apparent inadequacy of the Daily Mail's workforce management systems.


I pick up your Honour's comments that to‑date, the Daily Mail has not had to comply with those provisions in the Award.  I say that the lack of systems means that this is a justification, in some way, for the imposition of these provisions is, you know, a step too far.  I mean, Mr Chesher also said the Daily Mail doesn't know when people come to work.  That's clearly not the evidence that was given today.


So we say there are a number of flaws in the union's position.  In terms of the transitional arrangements, we've addressed that in writing.  We say we do need a period of time before any of these provisions would apply to Daily Mail in order to adapt to any of those provisions, if your Honour's were minded to implement them.  But not only that, there does need to be a transitional phasing‑in in the same way as was done with the modern Awards so that the significant additional cost that is going to be borne by my client and others in the online‑only publication industry can come to terms with the impact of those provisions.


The rest we have in writing, unless your Honour's had any questions, that's the closing submissions.




Anything in reply, Mr Chesher?


MR CHESHER:  I refer to the fact that people who say they're going to speak briefly speak for a long time, but ‑ ‑ ‑


VICE PRESIDENT HATCHER:  I'd regard that as brief, myself.


MR CHESHER:  Yes.  Except for your Honour.  With respect to Mr Dudley, I don't believe that we attached the – falls to the article, MEAA exhibit 2, but he says that we did to make our point.  I'd secondly like to point out that we don't – this absence of evidence about people relocating from print to online, people haven't relocated from print to online.  Digital has overwhelmed all operating systems.


There are instances where people work to both platforms.  And the essence of MEAA's submission – and your Honour touched on this with the expression, "Platform neutrality" – that is what we seek – there are no submissions that what we've entitled the legacy providers should be relieved of part 5 obligations.  Our contention is that the inequality is best resolved certainly within the framework of the Fair Work Act by the extension of part 5 obligations to what the workforce is.  And that is a digital operation by and large.


And as every day goes by, more people are operating in accordance with digital operating systems and getting their information out online and, as I said before, being monitored.  So there's a reference to gratuitous remarks.  I think there's been a little bit of gratuity in return.  Finally, your Honour, have we dealt with the confidentiality order?


VICE PRESIDENT HATCHER:  Yes, well, that's ‑ ‑ ‑


MR CHESHER:  We did.


VICE PRESIDENT HATCHER:  That order will be made and will be issued from my Chambers fairly soon.


MR CHESHER:  Thank you, your Honour.  I have nothing more.  Thank you to the Full Bench.


VICE PRESIDENT HATCHER:  Well, Mr Chesher, so in seven days, can you provide a draft termination by reference to the current Award, spelling out the precise changes that you want?  And can you also advise whether you want to cross‑examine Ms Serhal any further on the confidential exhibit?


MR CHESHER:  I don't have a very good record of requesting extensions from your Honour, but could I have – I have another matter before you next week concerning the cinema employees.  It's only scheduled for a day, but I do have testimony to give to one or two Senate committees next week, as well, on completely different matters.  Might I ask for Tuesday week?


VICE PRESIDENT HATCHER:  All right, Tuesday week.


MR CHESHER:  Thank you.


VICE PRESIDENT HATCHER:  And then if there's anything new in the draft determination that needs to be responded to, that is, that wasn't foreshadowed or understood to be contemplated in the existing submissions, or if employers want to, in the alternative, put up some alternative proposals, would a further seven days be sufficient?


MR CRILLY:  That's fine for us.




MR CHESHER:  If I could just clarify, your Honour, the draft determination you seek is covering the entire Award?


VICE PRESIDENT HATCHER:  Yes, everything that you seek by reference to the current Award, and perhaps having regard to some of the things that have been said this afternoon.


MR CHESHER:  Indeed.


VICE PRESIDENT HATCHER:  Yes.  All right.  If there's nothing further, we thank the parties for their submissions and we'll now adjourn.

ADJOURNED TO A DATE TO BE FIXED                                        [4.08 PM]



EXHIBIT #1 MEAA DOCUMENT BUNDLE.................................................... PN31



EXHIBIT #4 WITNESS STATEMENT OF CHRISTOPHER KNAUSS DATED 04/06/2019................................................................................................................................. PN151

SAMANTHA ELLEN CAMARRI, SWORN.................................................... PN166

EXAMINATION-IN-CHIEF BY MR CHESHER............................................ PN166


CROSS-EXAMINATION BY MR CRILLY..................................................... PN199

THE WITNESS WITHDREW............................................................................ PN216

ANDREW EALES, AFFIRMED........................................................................ PN286

EXAMINATION-IN-CHIEF BY MR CRILLY................................................ PN286

EXHIBIT #6 WITNESS STATEMENT OF ANDREW PAUL EALES DATED 26/07/2019................................................................................................................................. PN296

CROSS-EXAMINATION BY MR CHESHER................................................. PN298

RE-EXAMINATION BY MR CRILLY............................................................. PN379

THE WITNESS WITHDREW............................................................................ PN385

EXHIBIT #7 SECOND MEAA BUNDLE......................................................... PN389


KERRI ELSTUB, SWORN................................................................................. PN395

EXAMINATION-IN-CHIEF BY MR CRILLY................................................ PN395


CROSS-EXAMINATION BY MR CHESHER................................................. PN405

RE-EXAMINATION BY MR CRILLY............................................................. PN487

THE WITNESS WITHDREW............................................................................ PN494

EXHIBIT #10 AUDIENCE RATINGS.............................................................. PN497

EXHIBIT #11 NINE ENTERTAINMENT FIRST HALF FINANCIAL YEAR 2019 RESULTS................................................................................................................................. PN501


EXHIBIT #13 SECOND WITNESS STATEMENT OF ALEX LABELLE DATED 26/07/2019................................................................................................................................. PN507


BERNADETTE SERHAL, SWORN.................................................................. PN680

EXAMINATION-IN-CHIEF BY MR DUDLEY.............................................. PN680

EXHIBIT #15 THE STATEMENT OF BERNADETTE SERHAL, INCLUDING THE CONFIDENTIAL EXHIBIT B1.......................................................................... PN700

THE WITNESS WITHDREW............................................................................ PN867

KIMBERLEY BRUNT, SWORN....................................................................... PN870

EXAMINATION-IN-CHIEF BY MR DUDLEY.............................................. PN870


CROSS-EXAMINATION BY MR CHESHER................................................. PN884

THE WITNESS WITHDREW............................................................................ PN938