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Fair Work Act 2009                                                    






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Graphic Arts, Printing and Publishing Award 2010




10.05 AM, MONDAY, 29 MAY 2017


DEPUTY PRESIDENT GOSTENCNIK:  Yes, good morning.  We might take the appearances commencing with the AMWU.


MR M NGUYEN:  Your Honours, Commissioner, my name is Nguyen, initial M.  I also appear with my colleague, Ms Devasia, initial A in Sydney and Ms Hogan, initial M, in Melbourne.




MR L IZZO:  Your Honour, Izzo, initial L, together with Thomson, initial K, seeking permission to appear on behalf of New South Wales Business Chamber and ABI.




MR S CRILLY:  Your Honour's, Commissioner, Crilly, initial S, appearing for Fairfax Media Limited.  I have appeared previously in relation to the review of this award with permission, but to the extent necessary, seek that again.


DEPUTY PRESIDENT GOSTENCNIK:  Yes, all right.  I'll come back to the permission question and Mr Crilly.  Mr Thomson.


MS THOMSON:  Ms Thomson, initial K, with Mr Izzo.


DEPUTY PRESIDENT GOSTENCNIK:  Sorry, yes, okay, thank you.  Any other appearances?  Is there any objection to the application by Fairfax for it to be represented by a lawyer?


MR NGUYEN:  No, your Honour.


DEPUTY PRESIDENT GOSTENCNIK:  Yes, all right.  We're satisfied in regard to the complexity of the matter.  The matter will be dealt with more efficiently if we were to grant permission and we do so, Mr Crilly.


As we apprehend matters, the issue of coverage, albeit for different reasons, appears either uncontested, agreed or not opposed.  Unless the parties desperately want to say something about that, you need not trouble us with that.  The issue of the annual leave amendment also appears at least as between Fairfax and the AMWU to be agreed, is that so Mr Crilly?


MR CRILLY:  Yes, your Honour.


DEPUTY PRESIDENT GOSTENCNIK:  Does any other party wish to be heard on that issue?


MR IZZO:  We don't wish to be heard on that matter.


DEPUTY PRESIDENT GOSTENCNIK:  The parties don't need to trouble us with that issue either.  Mr Nguyen?


MR NGUYEN:  Your Honour's and Commissioner, I'll just be very brief, so there really are only the three issues.  We provided an additional paper which should have hopefully narrowed the issues even further.  The most recent submissions detail the AMWU's position on these three issues, so I only just have some very brief comments in relation to each and would seek an opportunity to respond to the employer party's submissions today, once they're present their views, if any.


Firstly, in relation to the jury service make-up pay, we have a difference of opinion in relation to the interpretation of the award modernisation priority industry's decision, which is [2008] AIRCFB 1000.  We say it can't be interpreted to mean that there's a blanket ban on jury service make-up pay and we outline that in detail in our written paper which we've provided.  They key point though is that in the same decision, an award was made in which jury service make-up pay was provided.


Secondly, in relation to the redundancy entitlements, it's apparent from the enterprise agreements which currently apply, that there is a standard of at least four weeks per year of service for the first 10 years followed by three weeks for each year of service, beyond 10 years at the annualised salary rate.


Some of the enterprise agreements contain more generous redundancy entitlement which applies at four weeks per year of service for the entirety of their service, but as a minimum, we say we've identified that it's four weeks for the four 10 years and then three weeks for each year of service beyond the 10 years.  That's the minimum that currently applies in the industry from an analysis of the enterprise agreement.


COMMISSIONER ROE:  What's the situation Mr Nguyen in respect of the awards that apply or applied to the newspaper printing industry?


MR NGUYEN:  In relation to the awards which applied, this is pre-2010, the pre-modern award system come into operation.  We provided a table which is attached to the end of our submission, which we lodged - - -


COMMISSIONER ROE:  In your original submission?


MR NGUYEN:  No, this is the most recent - -


COMMISSIONER ROE:  Your most recent one?


MR NGUYEN:  The most recent one.


COMMISSIONER ROE:  Submission in reply, yes.


MR NGUYEN:  The submission in reply.


DEPUTY PRESIDENT GOSTENCNIK:  This is the analysis of redundancy clause is what was exhibit 1, Mr Nguyen?


MR NGUYEN:  Attachment 1, yes and we've also said there's a table which is a summary of our analysis and then we also provided a document which copied the actual terms from those agreements and from those awards.








MR NGUYEN:  In terms of for efficiency, there's also a summary document which we've provided which is a table at the end of our reply submission which summarises what existed in the various - - -


COMMISSIONER ROE:  I'm sorry – I see, so it's in that table.  The awards are listed in the right-hand columns.


MR NGUYEN:  Yes, that's right.  The final – so the instruments after News Corp Australia Agreement 2014 are the pre-modern award, or the pre-reform awards which were all enterprise awards, except for – sorry, they were all enterprise awards, yes.  They were all enterprise awards.


The situation, we say, which existed in those enterprise awards.  I have to – I don't want to mislead the Commission, but I do have to just raise, we've listed there the Regional Daily Newspaper Printing Award.  That award was considered in the modernisation of the regional daily newspapers and so we've only just listed it there, just for reference for the Commission's information.  But it shouldn't be included in the analysis of awards applying to metropolitan daily newspapers, because that award applied to regional daily newspapers, not to metropolitan daily newspapers.


But this is a standard which also existed for regional dailies, just for reference, for the Commission's benefit.  But for the other awards there, it's also important to note that the Metropolitan Daily Newspapers Redundancy Award 1999 applied to all of the sites where News Corp Enterprise awards have application.  That includes in Queensland, in New South Wales, in Victoria, Tasmania and South Australia and also the Northern Territory.


That's where the bulk of the metropolitan daily newspaper industry exists.  The NT News, the publication in South Australia, the one in Tasmania, the Herald Weekly Times in Victoria, the Daily Telegraph in New South Wales and the Queensland News Corp publication in Queensland.  That's where the bulk of metropolitan daily newspapers exist and then we have the Fairfax Printers Award which applied to the Sydney Morning Herald and the Printing West Australian Newspapers Ltd Guaranteed Employment and Voluntary Retirement Award which applied to West Australian newspapers.


That leaves two metropolitan daily newspapers which didn't have an enterprise award prior to award modernisation and that's the site which printed the Age in Victoria, didn't have an award instrument applicable to it and also the – sorry, I'll retract that.  Only the Age didn't have an award applying to it.


There's another award that I've just realised we haven't included, which is the Canberra Times Award.  In terms of our analysis of the awards which applied to metropolitan daily newspapers prior to award modernisation, the majority of those sites contained superior redundancy entitlement of four weeks.  So that would be all of the News Corp sites as well as the West Australian.


In every state in Australia, there was an enterprise award applying to a metropolitan daily newspaper printer which had the superior redundancy entitlement, which we say existed.  We acknowledge that the Fairfax Award didn't contain that entitlement, but excluding that award, and I'll just have to check, one moment, the Canberra Times Award.


Excluding, potentially those two awards, in every state in Australia, there was an award applicable which had the superior entitlement.  What we have done in addition to that, is do an analysis of the current agreements of those sites which didn't have the award applying to them and those agreements currently do have what we say is the industry standard.


We also just provide a quick rebuttal of the employer's analysis of the West Australian Newspaper Redundancy Enterprise Award.  The employer has indicated that this award only applied to voluntary redundancies.  A careful reading of that instrument would reveal that that's not the case.  We provided the reference and analysis in our reply submission, which we say demonstrates that that award did not just apply to voluntary redundancies.


On the basis of the currently existing industry standard, we respectfully submit that the Commission should supplement the NES redundancy standard for metropolitan daily newspapers.  The power exists for the Commission to supplement the NES under section 55(4)(b).  The explanatory memorandum also identifies specifically that in addition to industry specific schemes dealt with by section 141, a modern award, may also deal with redundancy by including terms that supplement the NES.  That's at paragraph 558 page 92 of the explanatory memorandum.


It's necessary to vary the modern award to include the redundancy entitlement which we say is the industry standard, because it's a standard that does exist currently and employers should be very careful, particularly in this industry about exhausting all options before considering terminating employees or shutting down their operations, because of the very important function which this particular industry plays in our democracy.


In relation to personal leave, the union relies on its previously filed written submissions and has nothing further to add to that.  Unless there's any questions, that concludes my submissions.


COMMISSIONER ROE:  Mr Nguyen, I just wanted to clarify, so you're saying that in terms of awards, there were two newspapers that were not covered by an award which provided for the enhanced redundancy entitlements, and they were the Age and the Canberra Times.  Is that what you were - - -


MR NGUYEN:  And Fairfax.




MR NGUYEN:  The Age didn't have an award applicable to it.  There was no award applicable to the Age or the site which printed the Age.




MR NGUYEN:  The Canberra Times and Fairfax Awards didn't include the superior entitlement.  However, all of the News Corp sites did include the four weeks per year entitlement and the Western Australian News, on our analysis, included an entitlement to four weeks, which is not restricted to voluntary redundancy, as contended by the employers.


COMMISSIONER ROE:  But the Fairfax papers are a significant proportion of the daily newspaper industry, aren't they?


MR NGUYEN:  In terms of circulation, we would say that the News Corp publications would be more than the majority of the metropolitan daily newspaper industry, including the West Australian as well.  Would be significantly more than the majority.


COMMISSIONER ROE:  I don't doubt that for one moment.  News Corp are the dominant players, no doubt about that.  But the industry is essentially News Corp and Fairfax, isn't it?  I mean, there are some exceptions, but that's essentially the industry in Australia and so how can you say it's an industry standard if one of the two major players their awards didn't include this standard?


MR NGUYEN:  Whilst the award didn't include the standard, that's why we've also provided an analysis of the enterprise agreements which demonstrate that.  Fairfax has respected this industry standard for its employers printing the metropolitan daily newspapers in reaching agreements and their agreements have included the superior four weeks per year of service standard.


COMMISSIONER ROE:  But you see the problem I have with that argument is that if you took the oil industry as an example, all of the players in the industry pretty much, would have enterprise agreements which provide for redundancy significantly higher than the NES.  But the fact that there's a bargain standard that's higher than the award standard, that in itself doesn't mean that the award should reflect that standard


I suppose my point is that it's a different argument, isn't it, when you're looking at the standard as established by enterprise agreements, as opposed to the standard that's established by pre-reform awards because in respect of looking at award establishment, we were required to have some regard to the standard that was established in the prevailing awards prior to the establishment of the modern awards.  So, they're two different things, aren't they?


MR NGUYEN:  I think that was potentially – that would have been correct during the award modernisation process where the Commission was exclusively looking at what pre-reform awards were being modernised and specifically looking at those terms and conditions which should be included in the modern award at that time.


However, we submit in this current review that the Commission should take into account in the establishment of a fair and relevant safety net what was in the pre-reform awards, but also what is currently the prevailing industry standard and whether that industry standard is something that should be included in a fair and relevant safety net where enterprise bargaining has been ongoing for close to and over 20 years since these pre-reform awards were last looked at.


DEPUTY PRESIDENT CLANCY:  What's changed though, since the award modernisation process to now?


MR NGUYEN:  In terms of the industry, or in terms of the legislative criteria?


DEPUTY PRESIDENT CLANCY:  I presume that argument could have been put during award modernisation, if the enterprise agreements had been in existence for that period of time.


MR NGUYEN:  With respect, I can only speak for myself, for the main task of parties involved at that time was specifically an analysis of pre-reform instruments which were the subject of termination subsequent to the award modernisation process and the Commission's own research department did analysis of the pre-reform enterprise awards and industry awards and didn't look at enterprise agreements at that time.


It may have been possible, but I think the general view of parties involved in that process was that this was about consolidating thousands of awards into what is now just over a hundred, and so the task, because of the size of it, would have been to focus on those thousands of awards which were being modernised at that time.


DEPUTY PRESIDENT GOSTENCNIK:  Yes, thank you Mr Nguyen.  Mr Izzo, Mr Crilly, who wants to go first?


MR IZZO:  Thank you, your Honour.  Your Honours just before I commence, just as a matter of housekeeping, there was a statement filed by our office in relation to these proceedings of Mr Daryl Makins from News Limited.  That statement should have come with our submissions.  I believe, on the website, it's actually attached to the back of the submissions.  I don't know if that wants to be separately marked or tendered because it is intended to be given as evidence in the proceedings.


DEPUTY PRESIDENT GOSTENCNIK:  Mr Nguyen, is there any objection to the tender?


MR NGUYEN:  We don't object.


DEPUTY PRESIDENT GOSTENCNIK:  This is the statement dated 19 May, Mr Izzo?


MR IZZO:  Yes, your Honour.


DEPUTY PRESIDENT GOSTENCNIK:  We'll mark the witness statement of Mr Daryl Makins comprising 20 paragraphs dated 19 May 2017.  Is it just the one annexure?


MR IZZO:  Yes, annexure A.


DEPUTY PRESIDENT GOSTENCNIK:  With the one annexure marked A thereto, as exhibit 1.



MR IZZO:  Thank you, your Honour.  Your Honour, I'm mindful of the comment that was made at the beginning of the proceedings about there being no issue as to coverage.  I think that's right in the sense that no party is saying that the award should not cover daily metropolitan newspapers.  But there is an issue that I do think warrants some focus, which is what is the current coverage.


Because the AMWU is advancing a position in these proceedings that the award presently does not cover employees of daily metropolitan newspapers and the employer parties are making a submission, unanimously, that the award does cover employees of daily metropolitan newspapers.  That is an important issue for this reason, because you're being asked by the AMWU to make some variations to coverage that broadly are consented to.  But the AMWU then makes the following submission, because these employees weren't previously covered, you should bring with them, all of these other entitlements that aren't currently in the award.


What we say, is no, these employees have always been covered by the award and that means that they have enjoyed the existing award provisions since 2010.  That is a critical consideration, because if the AMWU is seeking to change the substantive entitlements of these employees under the Graphic Arts Award, then as your Honours would be aware, the preliminary issues decision talks about leading to establish a substantive merit case with probative in evidence et cetera, which has not been done here.


If I can – having made that point, if I can just briefly deal with the existing coverage of the award, do your Honour's have a copy of the Graphic Arts Award?




MR IZZO:  If I could just take you to paragraph 4.9.  4.9 is the current coverage clause and it should be uncontroversial that in determining the coverage of the award, one has regard to natural and ordinary meaning of the terms used.  We say, and the other employer parties say, that there are elements in clause 4.9 that clearly cover daily metropolitan newspapers, specifically clause 4.9(a) which talks about printing of all classes.


It talks about the following industries and occupations are covered.  It talks about printing generally.  Then 4.9(e) talks about publishing.  Now we say that the activities of both the employers in this industry, they are in the industry of publishing and of printing.  But, moreover, the employees are in the occupations of attending to those matters as well.  So, you have both an industry based coverage and an occupational based coverage for the employees.


If you then move further down the coverage clause, you will see the clause that's relied upon by the AMWU which is 4.9(n) which talks about production of non-daily and regional daily newspapers.  We readily concede that in that clause, there is no reference to metropolitan daily newspapers, but that does not mean that an employer or an employee cannot otherwise be covered by any of the other limbs in clause 4.9.


In many awards, there might be limbs that overlap.  There might be – particularly, when you have industry and occupational coverage, you might have employers that are not caught by the industry but their employees are caught by the occupation.  Now a classic example of that is the manufacturing award.  It has a set of industries that are covered, but a large number of people are also covered by virtue of its occupational coverage and that is very much the same case here.


What we say is that at the outset, the Commission needs to understand that the employees that we are talking about and the organisations we are talking about largely are covered by this award, when we talk about daily metropolitan newspapers, even if they're not specifically referred to in clause 4.9(n).


In response to that contention, the AMWU has relied on a Full Bench decision that was made in 2014 regarding the modernisation of certain News Limited awards. I've just got a couple of awards and a decision that I'm going to take you to, your Honours.  I've got a little folder that I'll hand up, if that's convenient.




MR IZZO:  If I could take you to tab 5 of this folder.  This is the Full Bench decision that the AMWU relies upon to assert that the award does not currently cover employees in daily metropolitan newspapers.  Now, the critical paragraphs are paragraphs 9 and 10.  If I can take you to paragraph 9, the Full Bench in this case, and this was a case about modernising the News Limited Enterprise Awards, so there was about four or five enterprise awards that were modernised into modern enterprise awards.


At paragraph 9, the Full Bench states that the graphic arts, printing and publishing award applies generally to the printing and publishing industries.  It expressly includes the production of non-daily and regional daily newspapers, but conspicuously does not expressly apply to the production of metropolitan dailies.


The AMWU makes much of that sentence, but we say that the highest that that sentence can be taken is this, that the furthest inference you can draw from this in support of the AMWU's case, is that the award does not expressly apply to daily metropolitan newspapers.  And that's right.  It doesn't expressly refer to them in any way.  It doesn't expressly refer to them in any way.  That doesn't mean that they're not otherwise covered by other limbs of the coverage clause.  It just says that they're not expressly referred to.  We readily accede to that proposition.


The next statement that's relevant that's relied upon by the AMWU, is paragraph 10.  Given its history, the Graphic Arts Award does not address conditions applicable to metropolitan daily newspapers.  Again, they rely on that to support a view that this Full Bench is saying that the Graphic Arts Award doesn't cover metropolitan daily newspapers.  We again say that takes the statement one step too far.


The highest inference you can draw from this statement, is that the award itself does not include conditions specifically to metropolitan daily newspapers and that is correct as well.  If we go through the award, it has some specific provisions for regional daily newspapers, but not specific conditions for daily metropolitan.  We don't cavil with those two statements, because we say that if you read them, and just give them directly their plain meaning, they are correct.  But what those statements don't say is that the award doesn't actually otherwise cover them and for the reasons I've already explained, we say it does.


We're really in a situation where we have an award that covers daily metropolitan newspapers and their employees, but the award provides specific conditions for regional papers and not for daily metropolitan newspapers with respect to hours of work and junior rates and things like that, and that does seem incongruous, I think is the word that's been used before.  And perhaps, that's something that can be addressed and that's why the parties have proposed to expand the definition of regional daily to just cover all daily newspapers.  That's what we say about the coverage.


To bring that coverage into the real context, if I can take you to the Makins' statement which is exhibit 1, at paragraph 12 Mr Makins refers to some News Limited employees who he says that award currently applies to.  He talks about 200 pre-press employees.  Now these pre-press employees create layouts for advertising products, they attend to looking at the output of the pages, making sure that client requirements are met by the design, paginations and other related things.  These pre-press employees, we say, would naturally fall within the coverage of the Graphic Arts Award.  They're not covered by any other enterprise agreement or enterprise award.


Mr Makins then goes on at paragraph 17 overleaf, and talks about graphic designs, and there's approximately 25 of them in sales and marketing functions.  We say they would also fall within either the occupation or industry coverage of the award.  Then he finally talks at paragraph 18 about distribution and warehouse employees.


Now the Graphic Arts Award includes coverage for occupations that relate to dispatching – I think the precise language is "Dispatching which is incidental to the industries or parts of industries covered by the award".  We say these employees would fall within that coverage and indeed, the classifications of the award talk about distribution and warehouse and storage services type roles.


We do have employees that are presently employed by daily metropolitan news entities that are employed where they're safety net is the award, the Graphic Art Award and no other instrument.  As I've said before, the reason that's important is because what we're hearing today is a proposal to change the existing safety net entitlements of these employees.


If I can now move on to the actual substance of the AMWU's claim, their position is essentially this.  You should make the redundancy changes, the jury service changes and the personal leave changes the AMWU proposes because it reflects industry standards.  That's effectively their position.  We contest that on two bases.  First, we don't say it reflects industry standards and secondly, we say extreme caution should be adopted for just introducing into a modern award, provisions which are industry standards, because that is not the test that the Commission is required to undertake when varying modern awards as part of this review.


If I can deal firstly what the industry standard is.  Perhaps I'll borrow Mr Nguyen's table, which he's provided as a reference point.  This is at page – it says page 1.  It's attached to the reply submissions.  I see, it's the first annexure.  It's at the conclusion of the reply submissions.


There's some important things to say about this table.  The first, which Commissioner Roe has already identified is that the Fairfax award, actually only provides for redundancy pay up to eight weeks, so we have a large group of employees that, as an industry standard were only getting eight weeks' redundancy pay.


The second is that the Canberra Times Award is not referenced.  Now the Canberra Times Award is in the folder that I have handed up to the Bench and I won't take you to it, but the Canberra Times Award, we say, it is uncontroversial that the award did provide for long true redundancy payments, but it did not permit involuntary redundancies at all.  Just for you reference, the clause number is clause 12.  Now, if that view is contested by the AMWU, then I'd seek to be heard on it, but we say that's uncontroversial.


The last award that I'd like to address in this table is the West Australian newspapers – sorry, I'll withdraw that.  It's the Printing (West Australian Newspapers Limited, Guaranteed Employment and Voluntary Retirement) Award.  It's the fourth last column.  Mr Nguyen submits that this entitled employees to four weeks' pay per year of service by way of redundancy.  That's not quite right.  Our submission, and for reasons I will take you to, this award does not provide any capacity to make involuntary redundancies at all.  It is purely about voluntary redundancies.


If I can take your Honours to the actual award, it's in the folder I handed up, the third tab of the folder I've handed up.  The first clause that's relevant – well in fact, the first thing I'd say that's relevant is the title.  The title of the award is the guaranteed employment and voluntary retirement award and regard should be had to the title because it forms part of the context and indeed, is a substantive clause of the award.  That already starts to indicate we're talking about voluntary redundancies only.


We then get to clause 6.  Clause 6 provides a guarantee of employment and states that no permanent employee shall be compulsorily retrenched or regressed because of technological changes to production processes of the company.  It then has a second subclause that says that the company guarantees that no employee shall be compulsorily transferred to other group companies.  They are absolute guarantees subject to there's a caveat about employees needing to be willing to be retrained et cetera.


This is saying that you cannot make people redundant against their will.  That's what clause 6 is directed towards.  We then get to clause 11.  Clause 11 talks about the ability for employees to elect to have their employment terminated.  So, 11.1 says "That if your duties are declared redundant and you're not offered suitable terms of employment within three months, you may elect to terminate your employment."  We say that is at the election of the employee; that should be uncontroversial and so we're talking there about voluntary redundancies.


Clause 2, goes on to talk about how you determine whose applications will be acceded to.  Subclause 3 is then very important because this is relevant to what the AMWU argument later relies upon.  Subclause 3 says "An employee who's been retrained for an alternative position, may apply to terminate his employment within a period of 12 months from his transfer to the new duties should the new duties impose undue mental stress or physical demands.  Applications for termination on medical grounds shall be supported by satisfactory evidence and the company refers the right to refer these to a medical practitioner."


What that is saying is, if you have been transferred and within a period of 12 months you just – the job is not right for you because of either the mental stress it has caused you or physical demands, you have an ability to still opt out and get a voluntary redundancy, but you need to satisfy certain medical grounds.  That's what that clause is talking about.


Then we get to clause 4, which is the clause the AMWU relies on.  This says "Where alternative satisfactory employment cannot be found within three months, the company will terminate employees referred to in subclause 3 by providing the termination payments."  What this is saying, is that once someone has transferred and they're not able to do that role for mental or physical reasons and if the company cannot find alternative employment, it may terminate within three months.  But that's where they've elected to be terminated.


Clause 3 is very clear that it requires an application to be made for termination and it also talks about in the first line, an employee may apply to terminate his employment.  So, clause 3 and 4 are dealing entirely with situations where employees have applied to be terminated.


COMMISSIONER ROE:  But what's the relevance of this?  If all you're saying is that the standard for redundancy for Western Australian Newspapers to the extent to which redundancy was allowed, is the four weeks for each completed year.  So, I mean, in terms of the argument about standard this award provides a higher standard because it says you'll get four weeks per year of service if you're ever made redundant, but there are limited circumstances in which you can be made redundant.  So, surely in terms of the standard argument, this helps the AMWU's case; it doesn't hinder it.


MR IZZO:  We say it doesn't for two reasons.  The first is – the reason I've taken you to these provisions is that the standard here is four weeks for voluntary redundancies and the reality is that you couldn't make people involuntarily redundant.  That was the standard under this award.  Now, your question Commissioner - - -


COMMISSIONER ROE:  Have you ever heard of an agreement or an award which provides a lesser standard for compulsory redundancy than for voluntary redundancy?  How could that be conceivable?


MR IZZO:  No, Commissioner, and that's not the point that I was trying to get to.  The point that I'd like to make about that is, so we have an industry standard which just didn't allow you to make people compulsorily redundant.  We say that's not a standard that's appropriate for a modern award and as a result, the regard that should be had is quite low.  I mean, we're talking about an industry standard which is clearly impracticable, which we say clearly doesn't align with the modern award's objective, so we shouldn't be having regard to it at all because it doesn't even allow you to take people redundant, and that's not something that we say the Commission should be entertaining.


So, where we get to, is that we say, when you look at this table, you have a number that talk about four weeks per year of service.  You have Fairfax at eight weeks and then you have two awards that just simply didn't talk about – you just couldn't make people redundant.  The regard that you should have to that, we say, it just doesn't have significant utility.  So, then what is the merit of looking at these industry practices?  They're clearly inconsistent with the modern award's objective.


No modern award prohibits forced redundancies under the current regime, and nor should it.  That's where we're getting to with that, that it's not just a case of saying all awards said four weeks' pay per year of service.  It's not that simply and there was a framework in place, we say, that's just misaligned to the modern award's objective.


Commissioner, that really leads to my second point about all of this, which is, we have to be very careful about the relevance and the merit behind adopting an industry standard.  We are no longer in the award modernisation process.  I think it is broadly accepted that due to the magnitude of the task undertaken by the Australian Industrial Relations Commission in 2009, there was an attempt at efficiency by trying to get the common, the average position or the most common position across a broad number of states and territories when the Commission made the awards.


They were conflating thousands and thousands of awards into 122, that was their task.  That was the approach that they adopted then.  That is not the approach that this Commission in 2017 though, is asked to adopt.  You are asked, or you're required by the legislation to consider whether what's proposed meets the modern award's objective.  That requires you to consider the needs of the low paid, productivity, impact on business, need to encourage collective bargaining, all of those sub-elements of section 134.  Industry practice before 1 January 2010 is not a limb of the modern award's objective.


Now, it could be indirectly relevant.  For instance, the AMWU could say well, this won't have a huge impact on business because it's what they've already done.  Well, that's a feasible argument that could be put forward, but that's the only way you can indirectly start to bring industry standard in.  You can't just say industry standard equals it must go into the modern award, and this is the fundamental problem I have with the analysis of the modern award's objective by the AMWU.


Their first point is that section 134(1)(a), the needs of the low paid, is to – they say that this meets the needs of the low paid, their proposal, because it meets the historical, and historically bargained industry standards.  That's got nothing to do with the needs of the low paid, what historically applied or what has been bargained in the past, that's not what's relevant.  I'm going to come to the needs of the low paid in a moment, and what really you should be considering in relation to that matter.


We have actually a significant problem with the entire approach because it elevates the industry standard to a status it does not have under the Act.  It may have had more influence in 2009, but it certainly shouldn't today.  Before I turn to the modern award's objective, I did just want to hand up a document which identifies the magnitude of what's being proposed by the AMWU with respect to redundancy.


This is a table in a simple manner, which attempts to summarise the provisions of all modern awards, with respect to redundancy.  It should be readily apparent that the vast majority simply adopt the NES.  There are a small number that extend beyond the NES and they are black coal mining which is capped at 30 weeks' redundancy pay.  Building and construction which actually has a regime which it only gets to eight weeks, but it moves faster to that eight-week point and I think that might be the small business employers as well, but that departs.


Dredging industry is very unique, because redundancy kicks in after the engagement of each contract because people are engaged broadly on fixed term contracts for each dredging project, so we say it's a very type of industry to the publishing industry where you'd have long term employees over decades.  That's not really the case with dredging.


We then have higher education, has some slight variations but the scale is the same as the NES.  The manufacturing award has a small exemption for small businesses in furnishing industry, they get up to eight weeks' pay.  You then have mobile crane hiring which does go up to 27 weeks.  The Plumbing and Fire Sprinklers Award has its own scale up to eight weeks and I think that's it.  No, there's one more, the Textile Clothing and Footwear Industry Award, that extends the redundancy provisions in the NES to small businesses, up to eight weeks.


When we talk about what is currently in place within the modern award framework, nothing has uncapped redundancy, which is what the AMWU is proposing.  There is very few industries that provide anything up to even 20 weeks.  It's really just two or three, and we say the industries that are very unique, and particularly in the case of dredging, wouldn't really have the type of length of service that you'd see in this particular industry.


We hand that document up to point out that it should be self-evidence that industry specific redundancy schemes are very rare and it should also be clear that the magnitude of what's being proposed here goes far beyond what is in any of the other modern awards.


They're the matters I want to deal with before just briefly touching on the modern award's objective.  I'm not going to deal with all the limbs, but I just want to respond to a couple of the limbs that are addressed in the AMWU's submissions.  The first is this point about the needs of the low paid.  The AMWU, and I'll quote the submission, it's paragraph 34 of their original submissions.


It's symptomatic of the whole approach.  They say that "Ensuring the history of entitlements which were won by employees working in that industry over its history are not lost.  That this is a matter that meets the relative living standards and needs of the low paid."  That is important and that addresses the needs of the low paid and it's necessary to protect to the relevant employees.  This feeds into the point I was making earlier.  The needs of the low paid, and I'll quote from a Full Bench decision; this is the latest Annual Wage Review (2016) FWCFB 3500.  At paragraph 352, this is what the Full Bench said about the needs of the low paid –


The assessment of the needs of the low paid requires an examination of the extent to which low-paid workers are able to purchase the essentials for a "decent standard of living" and to engage in community life, assessed in the context of contemporary norms.


That has nothing to do with ensuring that historical bargains achieved, are preserved.  If this Commission was to form a view that newspaper printing industry employees are for some reason particularly uniquely subject to some consideration that means that they need additional protection above and beyond the protections that the low paid get in all other awards, then that is a matter that would be relevant, but not just simply adopting a historical standard.  We say that approach relates to all of the limbs.


There really would need to be some probity specific evidence which demonstrates why these employees are in a particular position of detriment that is far greater than that of other employees in comparable awards, in order to have a specifically more beneficial redundancy scheme in place.


The next limb that the AMWU addresses is the need to encourage collective bargaining and at paragraph 37 of their submissions, the AMWU says that "These entitlement that they propose, create an environment of collective engagement that are likely to facilitate enterprise bargaining instead of the individual rights based in the NES."  Well, we just the opposite has to be the case.


If you include in a modern award extremely substantial redundancy and personal leave entitlements, we say it is extraordinarily unlikely that an employer will be in a position to bargain above.  That is, to try and reach an EA with employees that's better off overall by offering more generous entitlements at least in relation to redundancy or personal leave.  It would be highly unlikely that an employer would be in that position because of what's being proposed is already so generous.  We say, it in fact has the opposite effect.  It's not going to encourage collective bargaining, because it will be very difficult to negotiate above these entitlements.


The next limb that I'd like to specifically address is section 134(1)(f), impact on business, including on productivity employment costs and the regulatory burden.  The AMWU has submitted that this is a neutral factor in the present case and that's, I think, largely because they say that all the EAs currently in place have these provisions.


Well, that's not right for personal leave and in relation to redundancy, we have filed evidence from Mr Makins which demonstrates that there's a large number of employees that actually don't have the benefit of the entitlements being pursued by the AMWU and so to bring these in, would have an adverse impact on – the one example we've got here is News Limited, but certainly could be the case in other employers as well that there are employees currently covered by the award who aren't covered by EAs or enterprise awards and in relation to those employees, there would be an impact on the employer businesses.  There's also an indirect impact even if you've got an EA, because the award sets the safety net.  It sets the BOOT and so employers would be required to bargain above that.


Finally, and this is more of a drafting matter than anything else, section 134(1)(g), the need to ensure a simply easy to understand and sustainable modern award system.  The proposal of the AMWU for these more generous entitlements talks about people engaged in a daily newspaper office.  In fact, to be more specific, it doesn't say – their proposal, their draft – it doesn't actually say who's entitled to these extra payments, it just has a heading.  It says "Metropolitan daily newspaper employees".


That term is defined as – well, it's not defined, but there's another term that's defined which is "Daily metropolitan newspaper office" and that says "An office where a newspaper is a metropolitan masthead".  We say that this drafting is quite confusing.  Mr Makins has given evidence at paragraph 20 of his statement that news operates out of a variety of premises.  It might have printing out of one establishment, journalists in another.


Determining which is the office, could itself be a matter that gives rise to some argument.  Some might argue it's where the journalists are based.  Some might argue it's something else, but the way this is proposed, it simply doesn't work and it's going to give rise to more ambiguity as to who actually gets these entitlements.


That's primarily the matter that I wanted to raise.  If you'll just bear with me, there was one – there's just a couple of things I wanted to respond to which Mr Nguyen said this morning.  In relation to jury service, Mr Nguyen correctly, in my view, said that the decision that the employer parties have cited which dealt with jury service, Mr Nguyen said that decision, and I'll – that was in the Award Modernisation Decision in 2008 and that's referred to at paragraph 7.1 of our submissions.


Mr Nguyen said that wasn't a blanket ban on putting more beneficial jury service entitlements in awards.  I agree.  The decision wasn't a blanket ban, but there was a determined – sorry, there was a conclusion reached that as a matter of general application, the modern awards would not include more beneficial jury service.  What the award modernisation bench then went on to do, was to make specific awards for each of the specific industries and they did not, include more beneficial jury service when they made the Graphic Arts Award.


So, what this case shows, the 2008 Modernisation Decision, is that more beneficial jury service leave was a matter considered by the Full Bench in 2009.  It was considered as generally being undesirable, but in specific industries, something actually could be included.  The Bench elected not to include it in the Graphics Arts Award.


Having gone through that process in 2009, and again, following the authority in the 2014 preliminary issues decisions, what that means is that this Bench would now need to see a probative case directed towards a merit basis as to why jury service leave should be made more beneficial and that should be supported by probative evidence.  Again, no evidence has been filed in these proceedings.  So, there is no reason to overturn something that was done in 2009 with respect to the Graphic Arts Award.  That's what we would say in relation to the jury service point.


The final point, and I think this is symptomatic of what I had said earlier about just adopting the industry standard.  We haven't heard any other reason, really, why these more beneficial redundancy and personal leave provisions should be brought in, whatsoever, until really today.  Mr Nguyen said final in closing, that one of the reasons you should consider redundancy provisions is because this is a very important industry that plays a critical role in our democracy.


All of a sudden, it's because of the role that this industry plays in our democracy, that that's why we should give them more beneficial redundancy entitlements, because employers should think twice before making these employees redundant.  I think this just underlines the lack of any merit basis for what's being proposed.  Rather than actually saying there is a specific reason in this industry, all that's been adopted is this catch-cry of industry standard and now some throw-away line about democracy.  Well, there's been no evidence about it.


Obviously, news organisations do play an important role, but the extent to which that role needs to be linked to redundancy entitlements and the extent to which that role is now also being supplemented by others in the online space – there's all sorts of matters you'd need to consider if you were going to have regard to that point.  And again, there's been no evidence; there's been no contest in relation to these matters.  So, it would be impossible to simply make that deduction.


They are the submissions that we would like to make, unless there are any questions.


DEPUTY PRESIDENT GOSTENCNIK:  Thank you Mr Izzo.  Mr Crilly.


MR CRILLY:  Thank you, your Honour.  Fairfax has already filed an outline of submissions in this matter which is reasonably comprehensive and which I don't propose to take the Bench through.  We simply note a number of important matters which bear on the consideration of the claims that have been made by the union and a few things that Mr Nguyen has said this morning.


In essence, your Honours, Commissioner, this is a misconceived case.  The AMWU has made a claim which essentially says this was an industry standard, therefore it should go in the award, and that, when it comes down to it, is all their argument is.  That's not really what it does, because these were not industry standards for the reasons that we've set out in the outline.  In any case, it misunderstands the nature of these proceedings.


I don't propose to hand up cases on this unless it would assist the Bench, but as the penalty rates Full Bench recently said -


The Commission's task in this review is to make a finding about whether a particular modern award achieves the modern award's objective and if it is not achieving the modern award's objective, then it is to be varied so that it only includes terms that are necessary to achieve the modern award's objective.


That's at paragraph number 141, Full Bench decision (2017) FWCFB 1001.  Not a controversial proposition, but one that nonetheless, seems to escape the AMWU.


There's a previous Full Bench again, in a widely cited decision relating to the security services industry award that you sat on Commissioner Roe, said at paragraph 8, (2015) FWCFB 620 -


Variations to awards have rarely been made merely on the basis of bare requests or strongly contested submissions. In order to found a case for an award variation it is usually necessary to advance detailed 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.


That is the first proposition that is routinely put against employers who have sought changes to awards in this process, but it is one which the union appears largely to have disregarded.  There is no evidence whatsoever from the union in these proceedings.  The submissions that have been advanced are cursory and the case simply does not meet the standard which is required.


Turning then to the specifics of three matters with which we're dealing today.  I will take them in the order that Mr Nguyen addressed them this morning.  The first is the claim for a jury service leave clause, applicable to employees of metropolitan daily newspapers.  We have put our primary case in relation to that in our written submissions.  In short, the award modernisation Full Bench said that well, all of the awards that are before us have uncapped jury service, but the parliament has done something different and so it would undermine the NES to supplement the entitlement in all cases, and we're not going to do that, and it didn't.


I agree with Mr Nguyen and Mr Izzo that there is no bar to the insertion of a term into a modern award that would supplement the NES in that respect, but importantly, you would need to demonstrate why the industry or occupations which are covered by the award, require that supplementation.  That of course, would require evidence.  That is entirely lacking here.


Going to then, severance pay.  This claim is based on a supposed industry standard, and our analysis in the submissions at paragraphs 32 to 33, demonstrates why that isn't the case.  As Commissioner Roe raised with Mr Nguyen most notably, my client and its subsidiaries, for the most part, except in relation to the Canberra Times, have never been subject to a regime which provided for four weeks paid per year of service, and then three weeks after the first 10 years.  To assert that you can have an industry standard which doesn't include the bulk of Fairfax's operations is indeed a curious submission.


Mr Izzo has taken your Honours and the Commissioner through many of the matters which relate more specifically to the News Corp awards and the Western Australian Voluntary Redundancy Award, but I would note in passing it's well that there are aspects of these awards that are not reflected in the AMWU's proposed determinations.  Those are two-fold.


One, in the case of the Canberra Times and the West Australian awards, possibly also the News Corporation Awards, but I'm not as across that issue.  Redundancy was capped at the length of service, which would have been attained by the employee if they worked to the normal retirement age, which is not a clause which can be included in a modern award anymore, as a Full Bench found in relation to the Black Coal Industry Award, a number of years ago.


Second, in the case of the News Corporation Award which we say is irrelevant, but in any case, for employees who are employed after around 1970, the pay is in fact capped at 112 weeks pay.  A substantial cap, but one which is not reflected in the proposed variation.  We also say that reliance on the News Corporation awards, to make out the case that there was an industry standard, is misplaced, because those entities for the most part, aren't subject to the Graphic Arts Award.


They have their own enterprise awards and to make an award which says well News Corp are the largest part of this industry, which is certainly true by circulation, but I'm not sure that the same can be so readily inferred at employment levels.  It would be a very strange thing to do in circumstances where those people won't be subject to this instrument.  The industry for present purposes, really is Fairfax and West Australian newspapers, and a limited number of News Limited pre-press employees.  Without the News Corporation Awards, the case that this industry standard existed is rather weaker.


We say that that weaker case is why the AMWU has been required to rely on other instruments, notably, enterprise agreements which operate in the sector, and the Regional Daily Newspaper Printing Award 2001 which is reflected in the entitlement summary provided with the reply submissions.


Taking the award first, as Mr Nguyen rightly conceded, that award was considered in the modernisation process in relation to regional daily newspapers, which are uncontroversially covered by this award and have terms which are tailored to their operation.  That standard is not reflected in the current award, so it would in fact, be a departure from past practice to conclude that there was some standard in relation to metro newspapers which should be reflected when the previous standard for regional dailies was not.


More significantly, Mr Nguyen also relies on enterprise agreements in the sector and we say that is a fraught area for the Commission to enter into.  It's been noted on a number of occasions and I refer primarily to the annual leave case in this review, which was (2015) FWCFB 3406 where the Bench went through some of the clauses that are common in enterprise agreements to conclude that there was a level of demand for cashing out clauses in awards.


But what it went on to say at paragraph 252 is –


However, we are conscious of the need to exercise care when assessing the provisions in enterprise agreements in the context of a review of modern awards. Enterprise agreements are negotiated by the parties and approved by the Commission against various statutory criteria. The legislative context relevant to the review of modern awards is quite different. As the Full Bench in the Modern Awards Review 2012 Penalty Rates decision observed:


.. in approving agreements, the Commission is not making an assessment as to whether the instrument meets the modern awards objective or would be appropriate in circumstances other than those applying at the enterprise concerned.


That really is the core of the issue.  The enterprise agreements on one hand and modern awards on the other are very different instruments.  Modern awards provide, in conjunction with the NES, a fair and relevant minimum safety net of terms and conditions for employees in particular industries or occupations.  Enterprise agreements conversely, are negotiated instruments.  They are bargains struck between the parties which have nothing to do with whether it's an appropriate safety net.  It's simply an industrial outcome in the circumstances of a given enterprise.


To conclude somehow, that because something is an enterprise – I'll withdraw that.  To conclude that because a matter is an industry standard in enterprise agreements, and should therefore go into a modern award, would, in my submissions, be a significant departure from past practice and lead simply to a ratchetting up of the safety net, constantly to meet whatever becomes the new bargain standard and that is antithetical to the role of these instruments to provide a safety net, which amongst other things is intended to facilitate bargaining.


In conclusion on the severance issue, no relevant industry standard is being addressed.  In any case, the test which the AMWU is required to meet to establish a variation to this award as sought should be made, has not been made.  There's no evidence.  The submissions are cursory.  As we said in our written submissions, the appropriate means to attain different redundancy provisions in awards really was the mechanism in the act for an industry specific redundancy scheme which is not available to the Commission in these circumstances.


I don't put that as high a submission that the Commission could not do - what Mr Nguyen asked it to.  What we say is that these awards were all part of broader schemes which had other features such as prohibiting compulsory redundancies, but other aspects as well, and that if you're not going to take that wholesale, all you're really doing, is trying to cherry pick the most beneficial part of various instruments.


I think we can deal more briefly with the claim in relation to sick leave.  There are some comments in the reply submissions at 34 and 35 from the AMWU that don't really take this matter any further.  The case, to be very blunt, is based on bald assertions about things like the need to find additional leave for people who work continuous shift work, which if it were to be seriously pressed with the appropriate evidence, would be a much larger test case, than the matters before the Commission today.


In any case, the scheme which is proposed, one is needlessly complex; two, doesn't really work in the context where we have personal and carer's leave under the national employment standards which accrues from year to year, carries over.  Here, you're asked to make a variation which provides for a much greater entitlement on a sliding scale of how much pay you get for your first 20 days, second 20 days, some of which carries over, but it has to be used within a particular number of years, and it is pitched explicitly as sick leave, which leaves the question of carer's leave ambiguous.  In short, no case whatsoever has been established for it and the Commission ought reject the proposed variation.


Those are the matters we wish to address this morning.  In short, the union is simply trying to get the best parts of some award which it initially sought to modernise and then discontinued its applications to modernise, into the industry and occupational award, and the Commission ought not entertain that attempt.  The fact that these provisions terminated was within the AMWU's control and that is all in the past now.


Unless I can assist the Bench further, those are the matters.


DEPUTY PRESIDENT GOSTENCNIK:  Yes, thank you, Mr Crilly.


Anything in reply, Mr Nguyen?


MR NGUYEN:  Yes, your Honour.  Just a few brief comments.


There was significant submissions made by Mr Izzo about the coverage of the award.  They were essentially what we say are legal arguments about the fact that the metropolitan daily newspapers on the reading of the text of the award were covered by other sections, but we would respond to that with the general principle which is that the specific overrides the general.  There was a specific clause in there about regional daily newspapers and so we would consider that the metropolitan daily newspapers were not covered.


There is also one statement which the union hasn't relied upon in support of our proposition which is the statement made by the ABL.  In that statement, he clearly demonstrates that practically, putting aside whatever legal arguments that News Corp itself considered the Graphic Arts Award not to be applicable to metropolitan daily newspapers.


I take the Commission to the statement and its attachment.  The first annexure A to this statement in the letter from Andrew Biocca to the Registrar of the AIRC in 2009.


COMMISSIONER ROE:  This is attached to what document?


MR NGUYEN:  To Mr Daryl Makins' statement which is exhibit 1.




MR NGUYEN:  There's two letters there from Andrew Biocca and it's apparent from the letters that the position of News Corp was that the Graphic Arts Award would not be applicable to metropolitan daily newspapers.


COMMISSIONER ROE:  Where's he say this?


MR NGUYEN:  At paragraph – sorry, the heading is 3 Proposed Award.


The PIAA, AIG and AMWU propose an award for the Graphic Arts Group in the stage 2 proceeding which would cover non-daily and regional daily newspapers.  This wording was subsequently incorporated in the draft award prepared by the AIRC.  As such, it appears that neither the industry groups the AMWU or the AIRC are seeking to cover metropolitan newspapers.


Nevertheless, in our submission, the exclusion of metropolitan newspapers from the draft award, could be clearer.  That follows, the News Corp's position which it advanced during the modernisation of its enterprise awards, where it put forward the submission in the Commission that the graphic arts did not have application to metropolitan daily newspapers.


Whilst Mr Izzo might put forward specific legal or hypothetical arguments, the practicality is that parties utilising or looking at the award, didn't consider that the Graphic Arts Award had application to metropolitan daily newspapers.


In relation to the redundancy issue, I think we said all that we can in relation to our interpretation of those clauses, but we say that there is an ability for employers to make employees redundant.  I'll take it a step further by referring to the text of that West Australian award, where clause 12 actually just refers to 12.1 which is at tab 3 of the folder that Mr Izzo handed up.  It simply refers to "Redundant employees referred to in this award shall be paid in (indistinct) that are separate and distinct from any payment to which the employee is entitled under the provisions of the Printing and Newspaper Award, as varied" et cetera.


2 says "An employee referred to in subclause 1 of this clause shall be paid compensation."  So, on a strict reading of that any employee who is declared redundant is entitled to these entitlements for redundancy if they're terminated in any manner which is available under the award.


I just quickly correct a statement that I made earlier.  We didn't do in our table, the analysis of the Canberra Times Award, and so I didn't want to mislead the Commission by relying on that award.  I had indicated earlier that that award didn't contain the superior four-week entitlement.  But looking at the folder which Mr Izzo has handed up, and my colleague representing Fairfax acknowledges, that the Canberra Times Award which is at tab 1, does include the superior four-week industry standard.


That leaves, in all of the metropolitan daily newspaper industry, only the Fairfax award which did not include the standard and a site which did not have an award, which is the Age.  We just say in relation to a site which did not have an award, it is relevant in those circumstances to consider what is actually applicable at that site and the enterprise agreements shows that they are applying the superior industry standard.


That really leaves only one newspaper which is the Sydney Morning Herald looking at the award safety net which existed pre-award modernisation which did not include the industry standard.


Mr Izzo has made submissions about the relevance of other industries and provided a table which shows that a lot of industries refer specifically to the NES for their redundancy entitlement.  We say the only relevant industry to consider is what is currently existing in the metropolitan daily newspapers industry and that relationship that exists between the industry award applicable to metropolitan daily newspapers and to the awards that existed previously and the agreements that existed at those sites, is the only relationship that is relevant in these proceedings.


We agree with Mr Izzo's statement that there is significant length of service in the industry, but we say that's an important characteristic going to why there should be a superior redundancy standard.  These employees are working for a long period of time in the industry with very specific training on specific machinery.  In an industry, as we said earlier, that's important to our democracy, and so that needs to be taken into consideration in setting what should be the redundancy standard for those employees should they have to go and look for other employment after a significant period of time in an industry working on very specific machinery.


There was a lot of submissions about our original submissions about the modern award's objective.  I just make the comment that our original submissions addressing the modern award's objective were specifically directed at the issue of coverage.  That's the context in which those submission were made.


That's all I have to say in relation to those submissions, is that those submissions were specifically directed at coverage and the issues arising and flowing from that.  Perhaps some of those submissions may have been misinterpreted.


There was further, submission made about the AIRC's consideration of jury service make-up pay and that the issue was considered for the graphic arts and I think this does go back to that central issue which Mr Izzo outlined earlier, which is whether or not the graphic arts was intended by the Commission or not, to apply to metropolitan daily newspapers.


We say there was not consideration by the Commission about metropolitan daily newspaper conditions and also coverage of metropolitan daily newspapers and therefore, the jury service make-up pay which applied to that specific industry of metropolitan daily newspapers was not taken into consideration by the Full Bench at that time.  The reason why the graphic arts doesn't have it, is because they didn't consider the metropolitan daily newspapers at all.


What we are proposing is not general application of jury service make-up pay to everyone in the graphic arts industry.  It's only in relation to the metropolitan daily newspapers.  As the advocate from Fairfax has acknowledged, jury service make-up pay was a standard in all of the relevant metropolitan daily newspaper award-based instruments which applied.


COMMISSIONER ROE:  It also applied in the Graphic Arts Award, the pre-modern Graphic Arts Award, didn't it?


MR NGUYEN:  I don't have that off the top of my head, but I can take the question on notice, if the Commission pleases.  I don't know if you can check that, just quickly.  Perhaps Ms Hogan might be able to assist with that, the 2000 Graphic Arts Award.


MS HOGAN:  I'd have to take that on notice too, not off the top of my head, Commissioner.


MR NGUYEN:  I'll just address some of the submissions that have been made by my friend representing Fairfax.  There were submissions made about the modern award's objective.  I just draw attention to what we say is the most critical part of the modern award's objective which is often overlooked by lawyers looking at the specific issues included in the modern award's objective.  We say the most important part of the modern award's objective is the first criteria, which is that the Fair Work Commission must ensure that modern awards, together with the National Employment Standards provide a fair and relevant minimum safety net of terms and conditions, taking into account the - - -


DEPUTY PRESIDENT CLANCY:  How can you say that when there's that list of criteria that one's more important than the other?


MR NGUYEN:  Because the criteria are looked at in the context of ensuring that awards are a fair and relevant safety net.


DEPUTY PRESIDENT CLANCY:  I know what the section says, but how do you escalate that to be higher than the others?


MR NGUYEN:  Because the issues listed are taken into account in achieving that objective of providing a fair and relevant safety net.  So, that is I think an essential characteristic.


DEPUTY PRESIDENT CLANCY:  They're all joined by and.


MR NGUYEN:  If I can just clarify, I'm not making the submission that any of A, B, C, D or any of those subsections are more important than each other.  Only that they are taken into account on a reading of that section in establishing a fair and relevant safety net.  In terms of the Commission's task, and the public confidence that the Commission has in the public, in the establishment and maintenance of an award safety net system, certainly we would say that the idea that the award provides a fair and relevant safety net should be paramount in its task.


We acknowledge that the metropolitan daily newspapers redundancy award which applied to News Corp, did have a cap of 112 weeks.  I'll just address the decision of the Full Bench in the annual leave common issue.  My friend quoted a paragraph from that decision in support of his submissions that enterprise agreements should not be taken into account.  However, our interpretation of that decision, is that the Commission did analyse enterprise agreements, informing a view about that particular claim.


That decision, if I can give the full context, is a decision which looked at whether or not the cashing out of annual leave should be included in modern awards and the decision says in its analysis at paragraph 251 –


It is apparent that provisions permitting the cashing out of annual leave are a relatively common feature of enterprise agreements approved by the Commission.  Further, while most of these terms simply reflect the minimum requirements in section 9(3), a significant proportion contain addition limitations, the most common being that employees cannot cash out more than two weeks accrued annual leave in any 12-month period."


Then following that analysis, is the paragraph which was quoted by my friend which says –


The provisions in enterprise agreements show that there is some demand for provisions of this type and illustrate the range of safeguards which may be provided.


Then the Commission goes on to say –


However, we are conscious of the need to exercise care when assessing the provisions in enterprise agreements in the context of a review of modern awards.


And so on.  So, the Commission didn't say that it would not assess enterprise agreements.  In fact, it did assess the enterprise agreements and looked at them and provided in its decision, its analysis of those enterprise agreements in relation to the cashing out of annual leave.  Of course, we know that the decision as to create a cashing out of annual leave clause for the modern award system and that model clause is now existing in most of the modern awards that exist.


In relation to personal leave, we say that our assertions are self-evidence and not requiring evidence before the Commission, but we leave our submission there.  Thank you, your Honours and Commissioner.


DEPUTY PRESIDENT GOSTENCNIK:  Yes, all right, thank you very much Mr Nguyen.


Mr Izzo, I neglected to mark the document that you handed up earlier with redundancy entitlements.  Do you want that marked?


MR IZZO:  Yes, if it pleases.


DEPUTY PRESIDENT GOSTENCNIK:  If for no other reason, than for identification.


MR IZZO:  Certainly, your Honour.


DEPUTY PRESIDENT GOSTENCNIK:  I'll mark it for that purpose.


MR IZZO:  Your Honour, may I very very briefly, there's just a comment made about the annexure to the Makin statement, and I just wanted, with the Commission's leave just to clarify something about that annexure.  It was raised in reply by Mr Nguyen, so I haven't really – didn't have the opportunity to deal with it.




MR IZZO:  I just want to make this point, the annexure that Mr Nguyen refers to, was prepared as a submission to the Full Bench of the AIRC when it was conducting the award modernisation process.  Now, I think it's probably apparent from the nature of the submission, that there was either an intentional desire to have daily metropolitan newspapers excluded from the award by News Limited in that submission, but that doesn't necessarily stand for the proposition that News considers that the award, once made, excludes the daily metropolitan newspapers.


Indeed, I think the view of – the subjective view of one employer anyway, I don't know how far we can take that.  But, in any event, I just think that it should be understood in that context, because they were seeking to have the award further clarified to ensure it didn't apply to daily metropolitan newspapers and the Full Bench declined to make the variation proposed by News Limited, so I just wanted to put it in that context.


DEPUTY PRESIDENT GOSTENCNIK:  Yes, thank you.  Mr Nguyen, anything arising out of that?


MR NGUYEN:  No, your Honour.


DEPUTY PRESIDENT GOSTENCNIK:  Yes, all right.  I'll mark the document that was earlier handed up by Mr Izzo, entitled Redundancy Entitlements in Modern Awards as MFI1.



DEPUTY PRESIDENT GOSTENCNIK:  We will reserve our decision and we thank the parties for both their written submissions and their oral presentations today.


We are adjourned.

ADJOURNED INDEFINITELY                                                        [11.36 AM]