AG2004/1375, Transcript of Proceedings [2004] AIRCTrans 1716 (7 May 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 10845
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT O'CALLAGHAN
COMMISSIONER BACON

AG2004/1375

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LC of the Act
by the Media, Entertainment and Arts Alliance
and Another for certification of the Journalists
(Country Non-Daily Newspapers) Agreement 2003

SYDNEY

2.00 PM, TUESDAY, 27 APRIL 2004

PN1

SENIOR DEPUTY PRESIDENT WATSON: I'll take appearances.

PN2

MR M. RYAN: If the Commission pleases, I appear for the Media, Entertainment and Arts Alliance.

PN3

MR D. BRAND: If the Commission pleases, I seek leave to appear on behalf of the members of Country Press Australia. Appearing with me is MS J. RAY, who is the Chief Executive Officer of Country Press Australia.

PN4

SENIOR DEPUTY PRESIDENT WATSON: There is no objection to leave being granted?

PN5

MR RYAN: No, your Honour.

PN6

SENIOR DEPUTY PRESIDENT WATSON: Who would like to lead off? I should indicate we had some issues which may arise for consideration of the parties, and that was to avoid potentially raising matters and having to get the parties to go away and come back. Yes, Mr Ryan.

PN7

MR RYAN: Thank you for your memorandum of 21 April. You set out some issues raised in relation to this matter. I think it's probably best to try and address them in dot point form to the extent that some of those are relevant to my organisation's knowledge and others more appropriate for Mr Brand to speak to. But in relation to the first dot point concerning the application of section 170LC(4)(a) and (b), can I say that the statutory declarations attached to the application in clauses 7.2 of both the Alliance's and my statutory declaration is raised. There are set out four grounds that we rely upon for certification of the agreement.

PN8

Can I say that this is the second time we've sought the certification of the multi-business agreement. The current one was certified following a hearing on 29 January 2002 before a Full Court, and to the extent that the grounds relied upon today are identical to the grounds relied upon previously in relation to the current certified agreement, it's obvious when looking at the attachment (a) setting out the employers sought to be bound subject to the other dot points later, that this agreement relates to small country newspapers throughout the six states and the Northern Territory of Australia.

PN9

The size range is between one journalist, and I think the largest boundary respondent is the Geraldton Guardian, north of Perth, which has an editorial staff of about 10, but in the main these papers come out either once or week or in some cases twice a week. I think the Geraldton Guardian is the most popular so it comes out four times a week, and that's an historical distinction in award and agreement coverage. There is an award covering regional newspapers which comes out daily, five days a week, which is subject to a different agreement and different award.

PN10

As I said, in all six states and in the Northern Territory, with staff ranging from one up to a maximum of 10, it is just not appropriate, we believe, to seek to have stand-alone enterprise agreements, particularly when the employers themselves had sought to have their industrial affairs negotiated through Country Press as an organising body, and they have freely chosen, the employers, to seek to have their industrial conditions of journalists negotiated in this way. This is the fourth time we've had an agreement concerning Country Press and ourselves. The first two were unregistered but the third was certified and we seek, in relation to this one, to have this agreement certified as well.

PN11

SENIOR DEPUTY PRESIDENT WATSON: Is there a consistency between the members of CPA and therefore those employers proposed to be bound by the award? You mentioned the 2002, or certified in 2002 agreement. Is the list of employers the same as now before us?

PN12

MR RYAN: No. Until about 1998, I suspect, all those respondents bar a handful, a very small, independent people, were members of Country Press Australia. Around 1998 two groups withdrew from Country Press, one being a small number of newspapers owned by News Limited in northern Queensland, and a large group owned by APN, which has 14 daily newspapers in northern New South Wales and in regional Queensland and a number of named respondents to this award, and there's still that small handful of independents who in the main would employ in some cases no journalists or in other cases one or two. But the vast bulk of respondents are bound by the award and are represented by CPA.

PN13

SENIOR DEPUTY PRESIDENT WATSON: You mentioned numbers earlier, entities such as Regional Publishers Pty Limited, a large number of particular newspapers and locations. Are they capable of being regarded as one employer or not?

PN14

MR RYAN: Ultimately they are owned by Rural Press, and in that regard we have different arrangements with other arms of Rural Press. For example they publish specialist agricultural publications in each of the states, like The Land in New South Wales, and they have a separate certified agreement by themselves. They own the Canberra Times, there's a separate certified agreement for the Canberra Times. They also own five regional daily newspapers in New South Wales where we have again separate certified agreements for those particular places. But in relation to how they organise themselves, they are stand-alone publications. You will see that although it's a particular company, when it comes to day-to-day operations those papers stand alone in an editorial sense, and you'll note the broad geographic locations of those again in most of the states of the Commonwealth.

PN15

But I can't emphasise enough that we believe, and pardon me if I speak for employers for the first time, but if the employers have chosen to seek to have their affairs regulated in a particular way, we would say that should have some great deal of weight to be placed on it in relation to an option available to those employers in relation to having their industrial affairs certified by way of a multi-business agreement.

PN16

SENIOR DEPUTY PRESIDENT WATSON: Have any of those newspapers previously been governed by stand-alone agreements?

PN17

MR RYAN: No, never, your Honour. As I said, the first two agreements since the end of centralised wage fixing were Alliance/CPA agreements. The third one was then CPA members and the Alliance but none of the people before you today have sought to have the affairs of their country non-daily newspapers governed by stand-alone agreements.

PN18

SENIOR DEPUTY PRESIDENT WATSON: I see. For example, there is an agreement, the Journalists Regional Publishers Pty Limited Certified Agreement 2001. That applies to?

PN19

MR RYAN: To a daily newspaper. And you will find there are five of those which are in identical terms. They were negotiated at similar sorts of meetings with all five representatives from the Alliance membership and one representative from Rural Press, and the outcomes are identical.

PN20

SENIOR DEPUTY PRESIDENT WATSON: Is that the similar situation with western Victoria, Regional Publishing western Victoria, they have a current agreement which expires I think in November 2006 in relation to 110 Creswell Road, Ballarat, that's a daily is it?

PN21

MR RYAN: That's a daily and it was also a recent purchase by Rural Press. It was previously owned by the New Zealand arm of News Limited and they recently sold their New Zealand publications to the Fairfax group. They had no intention of selling their Victorian paper to News Limited, it was picked up by Rural Press.

PN22

SENIOR DEPUTY PRESIDENT WATSON: Okay and the schedule A Ballarat, Ararat and Stawell, they are non-daily papers?

PN23

MR RYAN: That's a non-daily, yes. There is a long standing distinction between daily newspapers and non-daily newspapers which goes back to I think about 1927 your Honour. So we would say for those reasons we have met the requirements concerning 170LC(4)(a) and (b) as to why there should be a multi-business agreement.

PN24

Can I say in relation to the second dot point, yes, it was the intention obviously that schedule A be part of the agreement. It was an oversight. I think what we have done we have just picked up the form that we went through with the first multi-business agreement in relation to the second dot point and the second last dot point and we've just compounded the error which should have been identified firstly by the parties when we sought the current agreement to be certified that what we were doing - - -

PN25

SENIOR DEPUTY PRESIDENT WATSON: I note the 2001 agreement doesn't contain any schedule or response. It's technically a reply to nobody.

PN26

MR RYAN: We have just compounded the problem by just - that one got through so we'll do the same, you know, the second time round and obviously I don't wish to cast doubts on those remaining members of the first Bench but somewhat different scrutiny has been applied to the paperwork this time, much to our concern so that should be part of the agreement. In relation to the third dot point I think it's best left to Mr Brand to address the bench on, your Honour.

PN27

SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you.

PN28

MR RYAN: In relation to the second last dot point, yes, you are correct in that the effect of clause 4 is that it's a members only underpinning award.

PN29

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN30

MR RYAN: That was because, historically, the old AJA now part of the Alliance has in the vast majority of cases, particularly within the print area, served and lodged a claim restricted to members only and you will notice that the underpinning award is a members only award in the sense determined by a Full Bench headed by the President in print S1192; if I could hand up a copy of that decision.

PN31

SENIOR DEPUTY PRESIDENT WATSON: Thank you.

PN32

MR RYAN: I will again be referring to that decision in relation to the last dot point.

PN33

SENIOR DEPUTY PRESIDENT WATSON: The agreement is made pursuant to the disputes settlement division of the Act?

PN34

MR RYAN: Yes. The reason that the last Full Bench pointed out that there is a handful of employees who are not constitutional corporations; there are some partnerships and some sole traders hence we couldn't rely on that part of the Act for certification which is a 1990 dispute finding. I can honestly say to the bench I drafted that log of claims and I can assure the bench that there is still sufficient ambit in relation to conditions and wage rates that this would still be a further partial settlement of that underlying industrial dispute.

PN35

SENIOR DEPUTY PRESIDENT WATSON: The dispute number cited in 1990 appears to be in fact a second 113 application. The original dispute as I understand it is 3720 of '82.

PN36

MR RYAN: I don't think so, your Honour, but I'm not a hundred per cent certain. This arose out of structural efficiency, the early award, which gave effect to the agreement between the parties which also consisted of, I'm pretty sure, I can check back at the office - - -

PN37

SENIOR DEPUTY PRESIDENT WATSON: But there is a dispute, it's a members only dispute.

PN38

MR RYAN: Yes.

PN39

SENIOR DEPUTY PRESIDENT WATSON: And you say it's within ambit.

PN40

MR RYAN: Yes.

PN41

SENIOR DEPUTY PRESIDENT WATSON: Very well.

PN42

MR RYAN: So obviously in relation to the second dot point and the second last dot point an agreement has to have two parties to it, in this case the various employers and on the other side the Alliance. It was always the intention that schedule A be part of the agreement and the employers who were sought to be bound to the agreement are those listed in schedule A. CPA as an unregistered organisation cannot be party to an industrial dispute and wasn't party to the industrial dispute. The error is compounded when you look at the wording of the agreement as to the coverage because I think we tried to use the words in the award and it's not, to our shame, effective enough as pointed out by yourselves.

PN43

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN44

MR RYAN: That then leaves I suppose objectively the biggest of the issues raised in those dot points concerning section 170LU(8). Could I say that in relation to the companies being sought to be parties to the agreement if one looks at the issues raised in that particular section, if we go to (8)(a)(ii) we submit that the editorial workers, in this case reporters, sub-editors and photographers, are a distinct operational unit within the single business. If you look at newspapers being divided properly into four distinct operations; there are the editorial people, there are the sale people, there are the printing people and then the various administrative staff but they are distinct operational units and no doubt you have noticed a large number of agreements being certified by this Commission concerning journalists (a particular place) and the scope of those agreements are journalists, reporters, sub-editors, photographers and, in some other cases, editorial artists and we say that we admit that part of the requirement. We then come to the situation where the question asked in (b) is:

PN45

Is the agreement defined that that part in a way that results in employment of employees not being subject to the agreement ...(reads)... nature of the work.

PN46

Obviously, non-members will not be bound by the agreement and that is subject then (ii):

PN47

The organisational operation between that part and the rest of the single business -

PN48

We say that's not relevant in this context. Then (c):

PN49

The Commission considers it unfair that employment of those employees is not subject to the agreement.

PN50

Well, this is in partial settlement of an industrial dispute where the Alliance only served the log of claims on behalf of members. In relation to the Full Bench decision I tendered earlier there was an appeal concerning the fact that the award in question, the Railway and Salaried Officers Interim Award 1995 was a members only award as well. There's a discussion whether that breached the freedom of association provisions, whether an award restricted only to members could be found to be in breach of that.

PN51

The bench held that it wasn't and if one looks at from paragraph 9 onwards there is a discussion by the Full Bench as to what was meant by that and also a brief but not potted history of the right of all employee awards to be made in relation to logs served by unions in this case and a decision that when a claim was made to also force an employer to offer the same terms and conditions to non-members; it was done for the protection of members but it couldn't be otherwise.

PN52

Normally the organisation could only make a demand on behalf of its members to protect those members and to say there was something wrong with that was held to be a serious attack on the jurisdiction of this Commission to settle industrial disputes and on that basis it was held that it wasn't the case and that members only awards didn't offend the freedom of association provisions of the legislation.

PN53

We would say that in that case if it's good enough for an award then we say it's good enough for an agreement because both the agreement and the awards are minimum rates in that sense; they're just paid rates they're just minimums. There is nothing to stop and I don't believe it has stopped employers regardless of membership or non-membership offering the same minimum terms in relation to the wages and the working conditions of their editorial staff at the various places.

PN54

As you point out the largest employer is Regional Publishers and through it its parent company Rural Press and I know as a fact that they do not offer differential terms and conditions to their journalistic employees in any arm of their operations concerning the newspapers and magazines. So, the question is whether the arrangement or the test under that section of the Act, is whether the Commission, in its discretion, considers it unfair that the employment is not subject to - the terms and conditions of non-members in this case is not subject to the agreement. We say it can't be otherwise in partial settlement of an industrial dispute where the underlying dispute concerns the terms and conditions to be offered to employers, or members, or members only, of the Alliance.

PN55

So, on that basis, your Honour, unless there are further questions to be asked by the bench, we would say that we have met the requirements of the Act for certification of a multi-business agreement.

PN56

SENIOR DEPUTY PRESIDENT WATSON: The final question, the valid majority was obtained by your members only?

PN57

MR RYAN: Yes, I can hand up what was out to make sure that those voting were members, and members only, and members employed by the Alliance.

PN58

SENIOR DEPUTY PRESIDENT WATSON: Thank you. I will mark the - what is it?

PN59

MR RYAN: It is a bulletin with an attached ballot paper.

PN60

SENIOR DEPUTY PRESIDENT WATSON: Yes, I will mark the bulletin MEAA1.

EXHIBIT #MEAA1 BULLETIN WITH AN ATTACHED BALLOT PAPER

PN61

MR RYAN: Can I say, Mr Grunhard, G-r-u-n-h-a-r-d, who was the officer of the Alliance responsible for the mechanics of the vote, I spoke to him this morning in the office before he went home sick, and I said that one of the issues that will be raised has been raised by the Full Bench as to who voted, and was there a valid majority, and were they eligible to vote in that sort of sense. He said, "Yes. As you can see on the ballot paper, there are three methods or three lines there. One is for a name, one is for their union membership number, and one is for the newspaper on which they work".

PN62

Mr Grunhard co-ordinated the collection of ballot papers from the various state branches and he informed me this morning that all of those who voted, and it was unanimous in favour of the agreement, were financial members, because even though they had a membership number, it was checked to make sure they were financial, because pursuant to our rules a non-financial member is not entitled to any benefits of membership, and then check that the newspaper was one of those set out in schedule A to the agreement.

PN63

That was sent out to the branches, the lists accompanying the agreement to say, here are the places only which you have got to send ballot papers to. Those that came back and said were scrutineered by Mr Grunhard to ensure that two things; they were financial members and they were employed on a paper which was set out in schedule A and from our point of view, since the ballot was unanimous and all of those who did vote were financial members, the checking didn't cause any outcome, which would be suspect.

PN64

I hope that satisfies the bench, your Honour.

PN65

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. Thank you Mr Ryan.

PN66

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Mr Ryan, can you confirm to me that the Alliance has membership within each of the organisations set out in the elusive schedule A?

PN67

MR RYAN: I don't think I could do that, your Honour.

PN68

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Is it conceivable that you would not have membership in that area?

PN69

MR RYAN: It is more than likely that in some of the very small papers, with one journalist only set out in schedule A, that person would not be an Alliance member.

PN70

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: I see. And secondly, you talked of the distinction between daily and non-daily newspapers.

PN71

MR RYAN: Yes.

PN72

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: In the case of a group, such as, Regional Publishers, or Rural Press, can you advise me of whether there is any interchangeability of journalistic staff? That is, is it conceivable that the one journalist might write something for both a daily newspaper and a non-daily newspaper?

PN73

MR RYAN: It is possible and the Regional Dailies Award makes scope for that, and they are actually bound by the Regional Award. It talks about associated publications, and there was a Federal Court case about this some years ago, not all that long ago, and what happens there is if they are working for the regional paper, and something which is non-regional, they are paid pursuant to the Regional Dailies Award or agreement. But can I just - - -

PN74

SENIOR DEPUTY PRESIDENT WATSON: Mr Ryan, is there any interchange between a person - a journalist employed by the various non-daily newspapers, for example, between Forbes and Bathurst, and the Regional Publishers Group?

PN75

MR RYAN: Only by way of people seeking to move by way of a vacancy arising. There is no transfer, as such. So, you might have somebody who is currently on a non-daily and they will than seek to move to a daily, because they have got higher rates of pay and obviously a larger newspaper, better prospects of promotion. But there is no forced transfer between country towns.

PN76

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. Yes, Mr Brand?

PN77

MR BRAND: Thank you, your Honour. I think it will be appropriate if I address the points of order as well that was forwarded to the parties and like Mr Ryan, I would like to thank the Commission for sending that. It was very useful and helpful in advance for today's hearing. It has also raised some issues, which we need to address you on, and some errors that have appeared in the notification.

PN78

Firstly, your Honours, with regard to the application, it is a multi-business agreement. The application is made pursuant to section 170LC(1) and, in particular, the points that need to be met under LC(4)(a) and (b). Now, it provides, in that provision that the Commission must not certify an agreement unless it is satisfied that it is in the public interest to do so, and it also goes on to say that it must have regard to whether or not the matter is dealt with by agreement could be more conveniently or appropriately dealt with by an agreement other than a multi-business agreement.

PN79

Your Honour, I can confirm for the benefit of the Commission, that as set out in the statutory declaration, on behalf of both parties, but on behalf of the members of Country Press Australia by Mrs Ray, who is in attendance here this afternoon, paragraph 7.2 of her statutory declaration notes that Country Press Australia which is an unregistered organisation. It is an association incorporated under the Associations Incorporation Act. It has never been a registered organisation under the Federal Industrial Relation Legislation.

PN80

However, notwithstanding that it has been the representative employer body since approximately about 1920 representing the interests of the non-daily newspapers, and it has been the body that has negotiated awards over that time and, as Mr Ryan indicated to you, four agreements covering non-daily newspapers in recent years, including the last agreement that was certified in early 2002. It has had a long history of representing the organisation and representing the members.

PN81

Now, within the award and the proposed coverage of this agreement there are hundreds almost of non-daily newspapers throughout Australia in six States and Territories that are, firstly, covered by the 1998 Award; also covered by the 2002 agreement, which has expired and proposed to be covered by this agreement.

PN82

We would submit that it has not been practicable for any other form of agreement to be put forward on behalf of those employers, who are members of Country Press Australia and wish to be regulated in this way. As has been put to you, the size varies, and it can vary from one journalist up to, I think, Mr Ryan put to you the maximum was - the largest number was 10 at Geraldton. The average would be probably more like about three or four journalists at various newspapers.

PN83

From a cost point of view it would not be practicable, from an administration point of view it would not be practicable and it could lead to different terms and conditions applying to the work carried out by non-daily journalists throughout Australia, if there were multiple individual agreements put before the Commission.

PN84

We noted a decision of a Full Bench of this Commission in a matter involving McDonald's Restaurants and the SDA, a decision given 30 January 2004 in print PR943252, if I could hand up a copy of that decision. You will note that that was an application pursuant to section 170LC in relation to multiple businesses, they being McDonald's franchises or shops owned by the McDonald's Corporation.

PN85

On page 2 at paragraph 7 of the decision the Commission will note a number of points put forward by the parties as to why it was appropriate in those circumstances that there be a multi-business agreement, as opposed to any form of an agreement. This was, as I note, in relation to McDonald stores in Western Australia, so the numbers are set out in the first dot point at paragraph 7 indicate that there were 58 outlets, 41 of which were franchisees and 17 were food establishments owned by McDonald's.

PN86

The points are set out there very similar to what applies in relation to this matter, the second point notes that the limited financial resources and limited business capacity of many of the proposed respondents to that agreement, the vast majority having no industrial relations experience nor have sufficient resources. As I've indicated, Country Press Australia has represented the industrial interests of non-daily newspapers in this Commission for near on 70 or 80 years notwithstanding that they are not a registered organisation, however, they've been recognised by the union for that period of time - the AJA as a predecessor to the MEAA as the body to negotiate with and to co-ordinate the industrial relations activity in the industry.

PN87

They have been recognised by this Commission in terms of being an unregistered organisation but notwithstanding that issue, the appearances being on behalf of the members of that organisation that they represent the interests. The fourth dot point notes that it may, if it was not done in this way having a multi-business agreement, it may lead to inconsistent wages and working conditions between the various stores covered by this agreement.

PN88

We would indicate that that agreement I think, is supportive of the approach taken by the parties in proceeding to have a multi-business agreement and we would also submit that the requirements of section 170LC(4)(a), that the parties would meet the public interest requirements of having such an agreement certified. In relation to the second dot point, yes, it was certainly the intention of the parties that schedule A listing out what would be the respondents to the certified agreement would be included, it was originally part of that document, it was included in the statutory declaration and unfortunately, the parties didn't re-include it back into a copy of the agreement.

PN89

There are issues though that I have to address you on as to the content of that schedule but notwithstanding that, if the Commission does make and certify this agreement, schedule A should be included to show the respondents to the agreement. The third dot point deals with two issues, those respondent employers and, as Mr Ryan has indicated to you, it was necessary to go down the dispute settling arm not the corporations arm of making an agreement because a number of the proposed respondents aren't corporations.

PN90

But in respect of those employers to be included in schedule A, we firstly note that the document that has been provided to you does contain a number of errors and I won't go to the detail but I'll explain why there is an error there. We can answer the second part, are they members of Country Press Australia? The answer to that is, yes. Any of the names of the respondent employers set out in the current schedule A are members of Country Press Australia.

PN91

A difficulty has arisen though in that a number of newspapers are members of Country Press Australia but don't employ journalists in this sector and never have and the reason for that is that they are so small, they essentially owned individually-owned proprietor operated newspapers where the proprietor is also the journalist and is usually the printer and also, the salesperson as well. So they are fairly small organisations but the don't and haven't employed journalists.

PN92

Now, the current award, the 1998 Award made by Senior Deputy President Marsh of this Commission on 30 June 1998 has a list of respondents as part of the award. There was considerable work undertaken by Country Press Australia and the MEAA in up-dating that respondence list from the preceding award which I seem to recall was the 1991 Award I think or thereabouts. If the Commission has a copy of the award and you note the schedule to that award, like most awards it sets out the name of the employer, in most cases being a corporation.

PN93

By way of example, note schedule A of the award set out by State, first one being New South Wales, sets out the first respondent to be Absana Pty Limited, Tamworth, showing the post code and then a second column under the heading, Newspaper says Tamworth City Times. Prior to the 1998 Award the respondency list for the awards simply set out the name of the employer, in most cases a corporate entity, in this case it would have said Absana Pty Limited and that was probably all it said.

PN94

The parties decided that that was very confusing because simply having employer names that are corporations gave no indication as to what was the publication or where it was, it also didn't assist in the transmission of business matters to determine who was respondent to the award, if there was a sale of business. So it was set out in that form thereafter. Some of them speak for themselves because the name of the publication is also the name of the employer, such as the Bega Times Pty Limited at Bega with the Bega District News.

PN95

Now, an error that has occurred in this matter, we would submit, would not under mine it, is that in accordance with the requirements of the Act in the certifying process, once the agreement had been negotiated between the union and CPA it was necessary to go through the steps to meet the requirements of the Act, such as the provision of the agreement to each of the employees to be covered by the agreement, explanation as to the terms of the agreement, allowing 14 days to lapse prior to any vote being conducted on the adoption of the agreement.

PN96

Now, when the agreement was forwarded to members of Country Press Australia, it was forwarded with a circular which I will tender.

PN97

SENIOR DEPUTY PRESIDENT WATSON: We'll mark this circular CPA1.

EXHIBIT #CPA1 CIRCULAR

PN98

MR BRAND: Thank you, your Honour. CPA1 was the circular that was issued by Mrs Janice Ray, the Executive Director on 22 January 2004. You will note that it's a circular to CPA members. It refers to the proposed agreement and gives directions to the members in relation to the steps they need to take as part of the certification process. These are set out in the numbered paragraphs in the centre on the page.

PN99

Firstly to provide a copy of the draft agreement to all employees covered by the terms of the Journalists Country Non-Daily Newspapers Award 1998, give an explanation of the terms of the proposed agreement to the journalists as necessary, note the date that the agreement was given to the employees and advise CPA of that date and complete the attached form.

PN100

It then goes on to talk about the steps needed in terms of timing for the application of the certification. It attached the agreement which was negotiated between the parties and has been signed as part of this application. If I could ask you to turn to the last page of that CPA1 document which was essentially a questionnaire but it also provided other information.

PN101

Firstly, the date that it was given to the employees at each place, the name of the respondent and the name of the publication and then the information required to be included in the statutory declaration of both parties in relation to the number of women who are journalists and the number of disabled persons, the number of casual employees etcetera and then for that document to be referred back to Country Press Australia.

PN102

What occurred, if the Commission pleases, was that the document was forwarded to all members of Country Press Australia on their data base, not just those who are respondent to the 1998 award who we would submit are the only ones who can be covered by this agreement unless there's been anybody roped in to the 1998 award since that point which we don't think there have been.

PN103

So essentially the document has been sent to a wider group than it was necessary. In some cases those that never employed a journalist such as the owner proprietors. In those cases, I'm instructed by Mrs Ray that there was no action taken, the document was received but it couldn't be acted upon and it was irrelevant to those persons.

PN104

The document was received back though and a list was kept but it was received back from all of those respondent employers to the 1998 award who are members of Country Press Australia os it could be acted upon but schedule A to that extent then is incorrect. If I could just draw your attention once again very quickly to an example of that. On page 10 of the statutory declaration of Mrs Ray which was is schedule A or headed schedule A to the agreement, under the New South Wales halfway down, respondents, the first entry there is Bloomfield Enterprises Pty Limited of Molong, the publishers of the Molong Express.

PN105

If you go to the award and the respondency just under the award you won't find any reference to Bloomfield Enterprises which in fact has been sold and there's a new name but notwithstanding that, no reference to the Molong Express for the simple reason it's always been a single proprietor operated newspaper. So there are errors in schedule A that need correcting to remove from that list those papers that aren't respondent to the 1998 award, but notwithstanding that, it has been sent to all of those who were and responses have been received from those organisations.

PN106

Now, I submit that that schedule can be corrected and can be resubmitted to the Commission, if the Commission is so minded to certify the agreement that the correct schedule to the agreement setting out those parties who are respondent which I emphasise again can only be those who are linked back to the 1998 award. Notwithstanding also that if a further analysis is undertaken, bearing in mind it's a 1998 award, there have been transmissions of business since that time and it's for that reason that the parties started having this respondency list that showed not only the respondent but the name of the publication and its city location.

PN107

So there are obviously a number of transmissions that have occurred and that will be the reason why the name, the corporate name or it might even be a partnership name as shown in the award respondency list may vary slightly to the respondency list to the agreement.

PN108

In answer to the fourth question, Mr Ryan has submitted that clause 4 of the agreement is in identical terms to its equivalent clause in the 2002 agreement and on a correct reading of it, the employers in schedule A aren't bound by this agreement. It simply leaves out that sentence that says that the employers set out in schedule A are respondent to the agreement. In the same style of clause 6, I think it is of the award that makes it abundantly clear as to which parties the award applies to and that being the employers set out in the schedule in respect of the members of the Alliance of that employ, the Alliance itself as a registered organisation and thirdly the members of the Alliance employed by the employers.

PN109

That goes to then the issue raised in the fifth dot point under section 170LU(8) in relation to essentially the nature of journalists awards which in my experience have always been as made by this Commission members only awards and that practice has continued on in relation to the making of any agreements between the parties whereby we say that that has been a practice that has been accepted by this Commission and Mr Ryan has referred you to a decision of the Full Bench in the Railway Salaried Officers Award that also deals with having a members only award and the basis upon which that can be made under the Act.

PN110

Without going into great detail about it, we'd certainly support the submissions made on behalf of the MEAA in relation to section 170LU(8). It provides there in that section that despite section 170LT which deals with the no disadvantage requirement where the Commission is required to certify the agreement, it says that the Commission must refuse to certify the agreement if the agreement applies only to part of a single business that is neither of or it could be interpreted is not.

PN111

Roman I we say does not apply, is not a geographically distinct part of a single business. Roman II does touch upon this issue of a members only award but as has been submitted to the Commission, there are four distinct parts of a newspaper operation one of which quite distinctly is the journalists section as opposed to the production or sales or administration.

PN112

In relation to subparagraph (b), if the Commission was to form a view that it was in appropriate that there were certain persons being separated out - the non coverage of an agreement, we submit that that's not the situation here. There's been a long standing practice as to who the award applies to, that being members of the union and we say that it is not unfair in its practice that that is what occurs.

PN113

I can say from the employers point of view, notwithstanding the approach taken by the union over very many, many years, there is no discrimination within the operations of the members of Country Press Australia in relation to the application of the award terms and conditions or the agreement terms and conditions. In most instances, there isn't a knowledge as to who is a member of the union and who is not a member of the union. There is very little taking out of dues by the employer. They are paid generally directly by the member to the union.

PN114

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Mr Brand, if there in most instances isn't a knowledge of who is or isn't a member of the union, then how is it that the circular that Senior Deputy President Watson has marked as CPA1 could have been given only to employees covered by the terms of that Journalists Country Non-Daily Newspapers Award of 1998?

PN115

MR BRAND: As I understand it was provided to all employees and there's no distinction between whether they were members of the union or not. It's the voting process that the union control that when the vote occurred, they had to check their records to ensure that the person was in fact a member of the union and in fact a financial member of the union at the time of the vote and I'm assured that only those persons who are members of the union voted on the process, notwithstanding that the document may have been provided to others.

PN116

I've essentially dealt with section 170LR where on the submissions of the union it was a valid majority of the employees who voted and those to be covered by the agreement, they being members of the union. So we would submit that there is compliance with that requirement. If the Commission pleases, in relation to the actual certifying process of the agreement, we submit that all requirements under the Act have been met.

PN117

The original agreement expired in 2002. There was a negotiation in 2003. The agreement is for a period where it will expire in 2006. At least it was intended to be for three years from the date of agreement between the parties. It will run if certified by this Commission to that point and will be less than three years. The no disadvantage test requirement which is important to consider is dealt with in the statutory declaration at paragraph 6.3 of the statutory declaration.

PN118

You'll note that essentially the terms of the certified or proposed certified agreement are matters that are not dealt with in the award and they are set out there in a table. The majority are not dealt with in the award such as the higher duties allowance, motor vehicle allowance, mobile phone allowance etcetera. They're provisions or terms that have been negotiated between the parties to provide an additional benefit to those employees covered by the agreement.

PN119

Where the term does appear in the award and obviously the most important one is rates of pay, these rates of pay are certainly in excess of those provided by the safety net provision of the award. It is an 8.5 per cent increase over the three years and those increases over each of the three years are set out in the body of the agreement.

PN120

The other requirements that have been met under the requirement to certify the agreement, there's a dispute settling clause at clause 19 of the agreement and we would submit that the steps have been appropriately taken by the parties in having the agreement properly dealt with and brought before the Commission in the appropriate time requirements, that it is open for the Commission to certify the agreement as a multi-business agreement, subject only to the matter that I put to you, that there needs to be an amendment or an adjustment to schedule A to form part of the agreement, so that it only covers those respondents who are respondent to the 1998 award. I can undertake, certainly in conjunction with Mr Ryan to have that document updated and re-submitted to the Commission, if the Commission pleases.

PN121

SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Ray.

PN122

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Mr Brand, you referred us to the McDonald's decision, the issue that concerns me relative to section 170LC(4) goes in part to how I can characterise the businesses that are proposed to be parties to this agreement as having some commonality of purpose or function. It certainly appears that they all have in common membership of the Country Press Association but unlike the McDonald's operation, they don't appear to be franchisees in the main, they don't appear in the case of groups, such as Rural Press to be capable of being characterised by the words, "limited financial resources" and "limited business capacity" and that takes me back to the third of the issues addressed in paragraph 7 of the McDonald's decision, such that the Commission is being asked to certify the agreement fundamentally on the basis of the cost and the time involved in negotiating individual agreements.

PN123

Senior Deputy President Watson referred you to a couple of other agreements involving parties to this proposed agreement, there are in fact a whole suite of other agreements which the parties to this agreement have entered into in relation to either journalistic staff or other staff. So I must say, I'm wrestling with why it is that cost and time factors relative to journalists are such a critical driver of a multiple business agreement in this instance, when they don't appear to have been in other cases.

PN124

MR BRAND: If I could approach it this way, historically this sector of the newspaper industry being the non-daily newspaper sector has been a clear and distinct sector, as was explained, the definition of a non-daily country newspaper, as opposed to a regional daily newspaper, goes to the extent of frequency of publication, it's less than five times per week, anything five or above is a regional daily newspaper. Now, probably the majority within that group would be weekly publications, there are some that might be two or three times a week and there are a couple that are four times a week but they are very much a minority.

PN125

The vast majority of the newspaper publications covered both by the award, the 1998 award and the 2001 agreement and proposed to be covered by this agreement, are small weekly publications. Now, notwithstanding that some of them are owned by larger groups, the issue of the cost may not be as relevant to those but it's certainly very relevant to those that are stand alone, independently owned and there has been a long historical approach by this Commission in dealing with that group of non-daily newspapers as a separate and distinct group of newspapers where there isn't interaction with other newspaper groups or of a higher frequency of publication, that they have been dealt with separately.

PN126

We draw your attention only to that decision and the example there because it is another example of a 170LC agreement. The reasons for that are partially relevant to, I'd say, the majority of the proposed respondents to this agreement but not necessarily all of them. But it's not the only reason, there are other reasons put forward as to why historically there has been one award covering this area of non-daily newspapers, there have been a range of agreements under the various provisions of the Act since about 1989 with structural efficiency and thereon, in terms of moving away from the centralised wage-fixing to having agreements that the first of these agreements weren't certified but the parties desired that it is appropriate that they be certified and that was from the last time onwards.

PN127

But it would be impracticable to co-ordinate in a logical way the industrial regulation of this very large number of newspapers. Now, they are like in the sense that notwithstanding the ones that are shown there in the list that are owned by Regional Publishers which is owned by Rural Press, each one of those publications is in a relevantly small country town. Those that are in the bigger country towns have daily newspapers; Bathurst, Armidale, etcetera.

PN128

What we are talking about is the country towns that aren't regional centres and looking at New South Wales we are talking about Coonamble, Mudgee, Kiama, etcetera, these are smaller country towns that have a non-daily newspaper, an individual non-daily newspaper tending only usually to have one in the town because it wouldn't support more than one - - -

PN129

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Bathurst?

PN130

MR BRAND: Bathurst does have a daily but they also have non-dailies and this is the non-daily shown there. The daily, I'm not sure who owns the daily in Bathurst but it's probably Rural Press, is covered by the Regional Daily Award and separate agreements and they are dealt with as much larger organisations. You do find a mixture of these non-daily newspapers where they are the only newspaper in town being a small town, in the larger of the regional centres that has a daily newspaper there will also on some occasions, also be a non-daily that comes out once or so a week but they are separate and they are dealt with separately and they always have been by this Commission.

PN131

So it is for those reasons that we would submit that it is appropriate in the public interest that the continuation of that industrial regulation occur within this Commission.

PN132

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Can I take you to the agreement itself, in particular, the clause 8 of the agreement, what obligation does hat establish on any of the employers proposed to be respondent to this agreement?

PN133

MR BRAND: Within clause 8 dealing, Allowance Adjustment?

PN134

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Yes. You see, clause 8 puts an obligation on the Country Press Association, I don't see where it puts any obligation on the employers.

PN135

MR BRAND: The way in which I think the agreement was applied is that clause 8 links into clauses 9 and 10 which are the allowances and I think clause 8 was intended to be an adjustment process by which, as it says there, clause 9 dealing with motor vehicles allowance and spectacle allowance in clause 10 will be adjusted. Certainly clauses 9 and 10 provide an obligation on the employers to pay certain conditions in relation to motor vehicles, etcetera.

PN136

Clause 8 I think, was a facilitative provision in relation to how those allowances are adjusted over the life of the agreement based on movements in the particular parts of the CPI that are relevant to those allowances. What it is, is a facilitive provision between CPA and the Alliance as to determining when and how much those allowances under the CPI have changed and accordingly, how the motor vehicle or the spectacle allowance, etcetera, would need to be adjusted within the life of the agreement.

PN137

SENIOR DEPUTY PRESIDENT WATSON: Mr Ryan, anything further?

PN138

MR RYAN: Could I respond to two points raised by his Honour, the first one was a question addressed to myself, I think I didn't give as full an explanation as I should have as to the effect, if any, of an employer set out in the schedule A doesn't employ a member of the Alliance. Could I say that if one looks at the requirements as to validity of balloting, as set out in section 170LR it requires that:

PN139

It must be approved by a valid majority of the persons employed at the time whose employment will be subject to the agreement.

PN140

In this case we say that means the totality of journalists who are members of the Alliance and all those listed work places and one goes then to section 170LE which defines what is a valid majority. In the case of section 170LE(d)(2) it is the majority of persons who cast a valid vote which was done here. So we say that the fact that a listed employer may not at this present point of time employ a member of the Alliance as a journalist doesn't have an impact.

PN141

In relation to the McDonald's decision and agreement I think if one was to look at what was said in paragraph 7 by the Bench one notes two things. That the agreement was a multi-business agreement consisting of 41 franchisees and 17 directly owned McDonald's companies. Now we say you can make a valid point that if you substituted Rural Press for McDonald's and all the others as being the franchisees it is on all fours because they are separately geographically. McDonald's is in a much better financial state, unfortunately for my membership, than Rural Press and they were still bound in relation to that multi-business agreement. I say it is on all fours if you wanted to substitute Rural Press for McDonald's and the franchisees for all the others then those dot points raised as giving effect to the public interest are just as valid for the application before you as it was in relation to the McDonald's decision. If the Commission pleases.

PN142

SENIOR DEPUTY PRESIDENT WATSON: Other than the final point presumably.

PN143

MR RYAN: Yes, even there those restaurants are separate geographically just as newspapers are separate geographically.

PN144

SENIOR DEPUTY PRESIDENT WATSON: But th CPA for example doesn't propose any common editorial policy on - - -

PN145

MR RYAN: Well they do have a code just like the Alliance has a code. Different to ours but I think you've got to sign up for their code, you've got to sign up for our code. I don't think there is any position as such. If the Commission pleases.

PN146

SENIOR DEPUTY PRESIDENT WATSON: Thank you. Very well we will reserve our decision in respect of the application and hope to determine the matter as quickly as possible. We would ask the parties if they could provide a copy of the agreement amended to reflect the issue of respondency incorporation with a correct list of employers intended to be bound by the agreement and also editorial change to the application clause to reflect the binding of the relevant employers in similar terms, I suppose, to the relevant award. Very well we will adjourn on that note.

ADJOURNED ACCORDINGLY [3.05pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #MEAA1 BULLETIN WITH AN ATTACHED BALLOT PAPER PN61
EXHIBIT #CPA1 CIRCULAR PN98