C2003/4536, Transcript of Proceedings [2003] AIRCTrans 5102 (18 November 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

C2003/4536

SCREEN PRODUCERS ASSOCIATION
OF AUSTRALIA

and

MEDIA, ENTERTAINMENT AND ARTS ALLIANCE

Notification pursuant to section 99 of the Act
of a dispute re industrial action - performers
and their terms and conditions of employment

SYDNEY

10.36 AM, TUESDAY, 4 NOVEMBER 2003

Continued from 25.7.03

PN17

THE COMMISSIONER: Yes, could I have appearances please.

PN18

MR A. BAUMGARTNER: If the Commission pleases I appear for the Screen Producers Association of Australia and with me is MS A. PECOTIC who is one of our television counsellors.

PN19

THE COMMISSIONER: Thank you, Mr Baumgartner. I note, for the record, there is no appearance on behalf of the MEAA. Mr Baumgartner, can you enlighten me at all?

PN20

MR BAUMGARTNER: I am not sure, they knew about today and we spoke yesterday about it. So I am not sure why they are not here yet. Has the Commission received any word from them.

PN21

THE COMMISSIONER: I haven't received any formal advice from the MEAA. I believe my associate received a phone call in regards to some meeting that was organised this morning. I have no idea why they are not here. But the matter is listed, Mr Baumgartner, following a request from your - - -

PN22

MR BAUMGARTNER: Yes, well I can put my submissions but I think it would have been better for them to be here when I made my submissions.

PN23

THE COMMISSIONER: One would think so, Mr Baumgartner.

PN24

MR BAUMGARTNER: Is it possible for the Commission to make some inquiries as to their non-attendance.

PN25

THE COMMISSIONER: Well, first of, I will hear your submissions. You sought the re-listing of the matter. On my understanding, because the parties have been discussing an agreement and you wish to put certain things on the record. A transcript will be available to yourself and me, at the end of proceedings.

PN26

MR BAUMGARTNER: Very well, Commissioner. Well let me put my submissions then. Commissioner, the parties were last before you on 25 July 2003 following a conciliation conference on 16 July. At that time - I am sure you recall - there was a one day stoppage the next day on 17 July.

PN27

THE COMMISSIONER: Yes, I might hold you there for a moment, Mr Baumgartner. Do I have another appearance?

PN28

MR S. WHIPP: Yes, I appear for the Media, Entertainment and Arts Alliance. Commissioner, I apologise for my late arrival.

PN29

THE COMMISSIONER: Thank you, Mr Whipp.

PN30

MR BAUMGARTNER: I was just saying, for the benefit of Mr Whipp, the parties were last before you on 25 July 2003 following a conciliation conference on 16 July, and a one day stoppage on 17 July. Since then there has been many meetings before the parties, pretty much on a weekly basis I guess, seeking to resolve the outstanding issues on the Actors' Television Program Agreement which was the options issues and the major role performer issue. And I believe you recall our discussions back in July generally centred around those two issues. We are pleased to indicate that there has been no further industrial action since that date. However, SPAA has received an email from Mr Whipp on 21 October detailing a campaign of industrial action commencing from this week. It hasn't commenced this week, yet, but I would like to tender that email.

PN31

THE SENIOR DEPUTY PRESIDENT: I don't think there has been any material tendered on this file, Mr Baumgartner.

PN32

MR BAUMGARTNER: I don't believe so.

PN33

THE SENIOR DEPUTY PRESIDENT: We will mark that document B1 thank you.

EXHIBIT #B1 EMAIL FROM MR WHIPP RECEIVED 21/10/2003

PN34

MR BAUMGARTNER: Commissioner, that document is a referral of an email to myself from Geoff Brown our Executive Director and it is an email from Mr Whipp to Mr Brown on 21 October. It attests - and I won't go through it all - it attests to a campaign of industrial action following a further telephone hook-up with cast representatives on 30 October; including a ban on non-contractive overtime, a ban on weekend work, a minimum one day stoppage on the week commencing 3 November, two day stoppages in nominated following weeks and other actions nominated from time-to-time.

PN35

On the second page of that email it also refers to the issue of the major role performer which was, at that time, one of the issues between the parties which remained unresolved. And the MEAA also - or Mr Whipp - included a reference to repeats and residuals which is a reference to another group which is between the parties, which is the Australian Television Repeats and Residuals Agreement which is a separate agreement applicable in the industry to performers. And I will come back to that in a moment.

PN36

From SPAA's position it was clear that the MEAA was intending to link the Actors' Television Program Agreement with the Australian Television Repeats and Residuals Agreement. As you would recall from the conferences in July, the Australian Television Programs Agreement is a common law agreement between the parties. And the difference between that agreement and the Australian Television Repeats and Residuals is that the Australian Television Programs Agreement deals with rates of pay and conditions of employment, while the Australian Television Repeats and Residuals Agreement provides for royalty payments to performers.

PN37

The view we take is that they are two separate agreements. And, historically, the negotiation of those agreements have been conducted separately and quite distinctly. At the outset of discussions following the conferences before yourself in July, the parties agreed to deal with the Actors' Television Program Agreement first and then move on to the Actors' Television Repeats and Residual Agreements.

PN38

Upon receipt of the email on 21 October regarding the strike action - and throughout this process on my submission - SPAA has been doing its level best to resolve all of the issues between the parties. But following receipt of that email every effort was made in the next week to resolve the major role issue, which was the major outstanding issue on the Actors' Television Programs Agreement, whilst maintaining the stated position that the Australian Television Repeats and Residuals Agreement had to be the subject of separate negotiations. On 30 October SPAA sent an email to MEAA and I will provide that to the Commission.

PN39

THE COMMISSIONER: I will mark that document B2.

EXHIBIT #B2 EMAIL FROM SPAA TO MEAA DATED 30/10/2003

PN40

MR BAUMGARTNER: Commissioner, B2 is an email from myself to Mr Whipp dated 30 October. It is headed "Without Prejudice" and it states:

PN41

In line with our discussion on Tuesday, 28 October, SPAA is prepared to put the attached document in relation ...(reads)... in line with this SPAA will be seeking a listing of ATPA to confirm the terms of settlement.

PN42

And that ends the email. The clear intention of SPAA was to settle ATPA with this offer and then to move on as we would say the parties had agreed, move on then to ATRRA.

PN43

So essentially we are trying to bring the matter here today to bring about the situation where we can resolve our ATPA and then use the Commission and your resources to try to resolve the remaining issues between us and that's why we listed the matter. We thank the Commission for its quick listing today.

PN44

Yesterday SPAA met with its members - I'm sorry. Before I say that I should indicate that MEAA responded in writing to our email of 30 October and I'll hand up a copy.

PN45

THE COMMISSIONER: We'll note that document as B3, thank you.

EXHIBIT #B3 WRITTEN RESPONSE FROM MEAA

PN46

MR WHIPP: Can I indicate, Commissioner, at this point of time that that's a without prejudice correspondence between the parties and I don't know whether it's appropriate. I haven't had a chance to review it but I don't know whether it's appropriate at this point in time that it's considered by the Commission. The intention of without prejudice correspondence is that it is between the parties and it's not something which the Commission takes into account in terms of its deliberation on the matters. While it's open to Mr Baumgartner to present to the Commission without correspondence which SPAA has provided to the union it's not open for the Screen Producers Association to present without prejudice correspondence which we have provided to them for the purposes of resolution of the agreements between the parties. It would be our view that it's a matter which we are entitled to relinquish privilege in relation to but it's not a matter which SPAA is entitled to take a unilateral action in relation to it although the intention of the correspondence is to resolve the matter between the parties in a full, frank, and fair way and then the indication of the without prejudice is that they are documents which are not supposed to be considered by any Tribunal in relation to any determination of the matter which might occur between the parties.

PN47

THE COMMISSIONER: First of all, Mr Whipp, I am not determining anything. The parties have been before me in conference and I presume that from Mr Baumgartner's submissions that a conference after the parties put their position on the record is something that is being sought.

PN48

The second point is I haven't even read the document. I presume it would be a document that may be put before me in conference on any account.

PN49

MR WHIPP: Commissioner, I have no difficulty with it being marked for identification purposes. In terms of it being tendered into evidence I suppose I would have a problem but if it's just being marked for identification purposes we have no difficulty with that.

PN50

THE COMMISSIONER: Do I need it, Mr Baumgartner?

PN51

MR BAUMGARTNER: I am happy to have it marked for information purposes at this point in time.

PN52

THE COMMISSIONER: I mark the document for information purposes 1.

PN53

MR WHIPP: If I can just interpolate it on then that it indicated to SPAA that MEAA were firm in its position that as far as they were concerned the issues in relation to ATPA would not be resolved unless we also dealt at the same time with issues in relation to ATRRA. It did indicate however which is a good thing that MEAA would not be taking any industrial action prior to 13 November, 2003.

PN54

Yesterday SPAA met with its members and discussed the response. Members made it clear to SPAA that the parties needed outside intervention to bring this matter to a resolution. As far as SPAA was concerned and its members we did not feel that we could bring this matter to resolution given the stated position of MEAA of the linking of the two agreements.

PN55

Commissioner, SPAA has prepared and provided to MEAA yesterday a draft terms of settlement for ATPA and it's accepted by us that the draft is our draft and it was provided to MEAA yesterday and it would be accepted that MEAA has not had an opportunity to fully look at it. We would like to put it forward as a reflection of our understanding of the position reached in relation to the Australian Television Programmes Agreement 2003.

PN56

I formally tender that, Commissioner.

PN57

THE COMMISSIONER: We will mark that document B3.

EXHIBIT #B3 DRAFT TERMS OF SETTLEMENT

PN58

THE COMMISSIONER: You don't expect me to read this in one minute, Mr Baumgartner?

PN59

MR BAUMGARTNER: No, I don't and I won't be reading it either.

PN60

THE COMMISSIONER: So what you are saying is that this is SPAAs position.

PN61

MR WHIPP: Yes it is.

PN62

THE COMMISSIONER: And when was this put to MEAA, Mr Baumgartner?

PN63

MR BAUMGARTNER: It was put to MEAA late yesterday and it's our view of the settlement of all of the outstanding issues on ATPA and as far as concerned these are the matters that have been agreed in relation to that agreement.

PN64

Commissioner, SPAA seeks the assistance of the Commission to conclude the ATPA negotiations and proposes that under the auspices of the Commission in conciliation conferences the parties meet to negotiate any final matters on ATPA that MEAA may assert remain between the parties.

PN65

On settlement of ATPA SPAA will seek the assistance of the Commission in conciliation meetings relating to ATRRA and will attend any such meetings as may be determined and sought or proposed by the Commission in relation to that matter.

PN66

THE COMMISSIONER: Thank you. Mr Whipp?

PN67

MR WHIPP: Commissioner, may I again take an opportunity to apologise for my late arrival this morning. We find, the Alliance finds the position taken by the Screen Producers Association in this matter curios. Since the parties have entered into the practice of, or the spirit of the Workplace Relations Act and prior to that the Industrial Relations Act of enterprise bargaining the Australian Television Programs Agreement and the Australian Television Repeats and Residuals Agreement have been negotiated or changes to those agreements have been negotiated together. There was an agreement entered into in 1996 and there was substantial changes to both the Australian Television Programs Agreement and the Australian Television Repeats and Residuals Agreement. There was a further agreement entered into in the year 2000 and again there were changes to the Australian Television Programs Agreement and to the Australian Television Repeats and Residuals Agreement.

PN68

Indeed, in the Australian Television Programs Agreement to which Mr Baumgartner has referred and has indicated there is complete agreement, in clause 4(d) there is an incorporation reference to the Australian Television Repeats and Residuals Agreement. I apologise that you won't have a copy of this before you, Commissioner, but I was unaware that this was the argument that was going to be put today. There is a reference in 4(g) to the basic negotiated fee which is a term which is drawn from the Australian Television Repeats and Residuals Agreement.

PN69

There is a definition to free television which is a reference to something which only applies in the Australian Television Repeats and Residuals Agreement. There's also a definition to pay television. There is an incorporation of a number of - there's a definition of a play which is you know - there is a definition of a residual fee, a repeat fee. All of these terms - there is a definition of total fee. All of these terms draw in and incorporate the terms of the Australian Television Repeats and Residuals Agreement into the Australian Television Programs Agreement.

PN70

The Australian Television Repeats and Residuals Agreement in fact provides the standard form of engagement under which performers engaged under the Australian Television Repeats and Residuals Agreement are to be engaged. The two agreements are integrally linked. In fact when a performer works 50 per cent, at least 50 per cent of the rate of pay which they are paid under the Australian Television Programs Agreement is set by repeat and residual fees in the Australian Television Repeats and Residuals Agreement. The contract integrates the two. The agreements integrate the two. The two cannot exist one without the other.

PN71

I might just correct Mr Baumgartner on one point that he asserted. That is, that the Australian Television Repeats and Residuals Agreement is an agreement about royalty payments. It is not. It is an agreement about repeat and residual fees and there is a distinction and it's an important distinction for the Commission to be aware of and it's an important distinction for all of us to remember. A royalty payment is a payment which arises as a result of a right held by a copyright holder. So, for example, an author or a composer might enter into an agreement with a third party to produce or publish the work which they have written themselves.

PN72

Under the Copyright Act both of those people have a right, a copyright and the royalty payment which they negotiate and receive is a right arising out of the copyright which they have. Under the Repeat and Residuals Agreement this is a right arising out of the contract of employment which the performer has with the producer. It does not arise any other way other than by out of the contract of employment which the performer has with the producer. That is the way in which that right arises and it is identical to the way in which that right arises in Canada, England and every other English speaking country around the world. It does not arise as a result of a right which the performer has under the Copyright Act.

PN73

I have indicated before that historically the negotiations have been conducted at the same time between the Australian Television Repeats and Residuals Agreement and the Australian Television Programs Agreement and I have indicated that it has occurred that way to the extent that when the parties have settled terms the terms have been contained within the one heads of agreement for both the Actors Television Programs Agreements and the Australian Television Repeats and Residuals Agreement. If I had known I would need to refer to those documents and provide the Commission with copies of those I would have and I'm happy to provide the Commission with copies of those documents from the settlement terms in 1996 and 2000.

PN74

In relation to this document we'd make two points - this is the document marked B3. The first is it was provided after close of business yesterday and at this point in time due to commitments this morning we haven't had a chance to review it. So we're not able to comment on it at all. But secondly we would say as the contract of a performer is made up or the fee that is paid or the rate of pay the performer is paid at the time they do their work is made up 50 per cent by the rates in the Actors Television Programs Agreement and roughly 50 per cent by the Australian Television Repeats and Residuals Agreement.

PN75

To say that we've entered into an agreement or we've settled terms on 50 per cent without discussing what is happening with the other 50 per cent is a ludicrous scenario. We cannot and will not say that the terms are in relation to whatever the SPAA has put in these documents are settled, until the balance of the 50 per cent is settled. There is no sense in saying we have locked off this 50 per cent until the other 50 per cent is discussed and agreed and we would be doing our members a tremendous disservice by saying that this 50 per cent over here is agreed and restricting their rights to seek an improvement in this 50 per cent if the SPAA proposal in relation to the other 50 per cent is inadequate.

PN76

So, at this point in time as I say we haven't had a chance to review B3 but we say there is little point in agreeing on those terms and we're not prepared to say we agree to those terms until the whole package is agreed. It's not just a position that we'd put in these negotiations. It's the position which any union and indeed I would have thought any employer would put in any negotiations that we can't agree that these things are finally agreed until we can see the entire package. So that is our position as this time. We have no objection to the involvement and assistance of the Commission in the negotiations.

PN77

I note that we have reached an agreement with other parties without the assistance of the Commission on these issues and we would have hoped that the assistance of the Commission was not necessary. We had hoped that the Commission might be able to devote its resources elsewhere but if the producers are seeking the assistance of the Commissioner we have no objection to the involvement of the Commission and hopefully that will lead to a speedy resolution.

PN78

I can say that we commenced these negotiations some 12 months ago now and performers are anxious to have them finalised to the extent that you will have seen in the e-mail which Mr Baumgartner provided to you, B1, that performers are - it's indicated there the e-mail I sent to Mr Brown of SPAA that the performers are very keen to have these matters finalised to the extent that a campaign of industrial action is contemplated, proposed and if agreement is not reached will be entered into in accordance with the provisions of the Workplace Relations Act. We have nothing further to say at this point in time unless the Commission has any questions.

PN79

THE COMMISSIONER: No, thank you, Mr Whipp.

PN80

MR BAUMGARTNER: Commissioner, I'll just respond.

PN81

THE COMMISSIONER: Very briefly, Mr Baumgartner, I'm not arbitrating the matter as well the parties know. My powers are very limited in regards in regards to this. The reason that we are on the record is at SPAAs request and that was simply to record the status of the discussions between the parties. So it's not a full blown arbitration and you know very well I don't have power.

PN82

MR BAUMGARTNER: Yes, I only want to make very brief comments. We'd say that the discussions in '96 and in 2000 may have been to some extent contemporaneous but our view of those discussions is that they were separately negotiated in relation to each of those agreements and even if some of the terms were in the one set of terms of settlement our view is that they were still in relation to two separate instruments. The references to aspects of ATPA where there are references to ATRRA is I say not relevant other than to the extent that it indicates that they are interconnected to the extent that one part forms a part of the wages and the other part is really we say the purchase of rights and the right to exploit performers work.

PN83

THE COMMISSIONER: It's still connected to earnings though, Mr Baumgartner.

PN84

MR BAUMGARTNER: In terms of the total fee that they are paid but we have always maintained that they are clearly distinct. One is rates and terms and conditions of employment, the other is really a purchase of rights to exploit the performance in relation to repeats and residuals of that performance. Probably that is all we would need to say. The view that is taken is they need to be separate.

PN85

The suggestion that we are getting from there is that if they don't like the negotiations in relation to ATRRA they will want to go back and review their position in relation to ATRRA and that is a difficult position for SPAA to accept. We have worked very hard to try to resolve the issue in relation to ATRRA. That was the process the parties agreed to embark upon in July. We have concluded the process in relation to ATRRA. We are happy to move on to ATRRA. We should be able to put to bed the issues on ATRRA and then deal with ATRRA.

PN86

THE COMMISSIONER: All right. If there is nothing further that you require to have recorded we will go off the record, thank you.

NO FURTHER PROCEEDINGS RECORDED [11.07am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #B1 EMAIL FROM MR WHIPP RECEIVED 21/10/2003 PN34
EXHIBIT #B2 EMAIL FROM SPAA TO MEAA DATED 30/10/2003 PN40
EXHIBIT #B3 WRITTEN RESPONSE FROM MEAA PN46
EXHIBIT #B3 DRAFT TERMS OF SETTLEMENT PN58