Landmark ruling entitles digital journalists to penalty rates and overtime under previously print-only Award

Digital journalists will now be entitled to the same penalty rates, overtime and other key conditions as their print counterparts, after a landmark ruling from the Fair Work Commission.

The decision was handed down yesterday and announced today, with the full bench of the Fair Work Commission agreeing with the Media, Entertainment and Arts Alliance’s (MEAA) argument that digital media workers should receive full access to the Journalists Published Media Award.

The award is the benchmark in the industry and covers news titles and magazines.

Up until yesterday’s decision, digital journalists doing the same role as print journalists were denied access to the award, meaning they didn’t have minimum standards for wages, penalty rates, overtime and other conditions of employment, such as hours of work and breaks.

The decision comes as part of the four-yearly review of modern awards and is the result of a case which union the MEAA first put to the Commission in 2015. Primarily, the union sought to address the exclusion of online-only publications from the Award, the exclusion of employees of country non-daily newspapers from weekend penalty rates, the exemption of ‘specialist publications’, and the exemption of certain positions.

MEAA media director Neill Jones said: “The Fair Work ruling means that if you work for a digital media start-up or a digital-only publication you are no longer treated as a second-class journalist.

“This decision removes the award’s outdated focus solely on print journalists which placed digital workers at a disadvantage. The decision to modernise the award brings those journalists together under one standard, in recognition of their shared roles and responsibilities as media professionals, regardless of whether they work online or in print.”

The Daily Mail Australia, Nine Entertainment and Rural Press – the holding company for Australian Community Media (ACM) – spoke out in opposition to the case.

The Daily Mail said that the MEAA’s submission didn’t make a clear point that the changes were needed to satisfy the modern Award objectives, which is the reason Fair Work conducts regular reviews, and that the changes would negatively impact the Daily Mail, including through the need to introduce a time and attendance system, changes to roster practices and the hiring of specialist personnel to assist in the implementation of the changes.

At the bare minimum, the Daily Mail Australia asked that, if the changes were made, they take at least 12 months to come into effect and phase in over a number of years. The Daily Mail Australia has never previously had to operate under the print journalist part of the Award.

Calling on assistant managing editor Kimberley Brunt and head of finance Bernadette Serhal as witnesses, the Daily Mail made the case that early morning work is key to the role of a journalist, and that early starts and late finishes are no longer considered to be unsociable, but rather, offer journalists increased flexibility. The Daily Mail provides journalists who work weekends two consecutive days off each week, although it is not obliged to, it argued.

Nine, which publishes a number of online-only publications including the Brisbane Times, alongside its digital properties and Pedestrian Group, argued that the MEAA had not been clear about why the changes were necessary and that the increase of readers on digital platforms did not necessarily mean modern Awards need to changed.

More witnesses were called, including The Age editor Alex Lavelle, who said his journalists are primarily ‘platform agnostic’ and that some consider shift work better for their lifestyles. Pedestrian Group CEO Matt Rowley was called and gave evidence about the Pedestrian model, including saying that, in the event the changes were put into place, he would be forced to consider if they were financially sustainable for the business or if the hours would need to be cut or outsourced.

Rowley raised the concern that the ruling could hamper the launch and growth of new players in the digital space, and would ‘negatively affect the opportunities for digital journalists in the industry’.

Digital editorial director Kerri Elstub also spoke, and said a lack of budget surplus would mean the changes would have an impact on staffing.

In 2009, a review conducted by the Australian Industrial Relations Commission (AIRC) found that digital journalists should have an Award to cover them, but a decision was not made in relation to that fact. The current review found that some of the factors considered in 2009, including that ‘online-only publications are a “new area of employment created by technological change”’ clearly needed to be readdressed, and that the fact that publications including The Guardian and the Daily Mail didn’t even exist in 2009 meant the current ruling was outdated.

The Award that will now be relevant to digital journalists includes provisions around ordinary hours, breaks, shift work and weekend penalties, and the ruling said it was clear from the evidence provided that ‘work on early morning, afternoon, night and weekend shifts, and at unsocial hours generally, is an entrenched and fundamental feature of the employment of journalists at online-only publications, so that the consequences of their exclusion from [the Award] entitlements identified above are real and not merely hypothetical’.

“We are satisfied, on the evidence before us, that the work of journalists of print publications, print/online publications and online-only publications is fundamentally the same,” read the ruling.

Rural Press opposed the variation sought by the MEAA that country non-daily newspaper employees be entitled to the weekend penalty rate, but the Commission decided that the Press failed to give any ‘justifiable rationale’ for the exclusion to continue. It also found the 10% penalty rate was ‘very low’ and it was unlikely to significantly impact costs.

The provisional ruling allows for a 12-month transition period before the changes come into play, and parties to submit written submissions to the ruling within 21 days.

“Digital is the reality of all newsrooms today. It’s about time the award caught up with the working lives of our members,” MEAA media federal president Marcus Strom said.

“Congratulations to the MEAA Digital Media Committee, made up of working journalists at a range of online publications. Now, more than ever, journalists working in digital media need to join the union so we can collectively enforce these new entitlements.”

Mumbrella has approached the companies which provided evidence for comment. The full ruling can be found here.


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