Employment Lawyer Michael Byrnes reveals what staff need to know about Nine’s new workplace conditions.
There is a lot of unrest at Channel 9 at the moment.
Not only are production staff learning a whole new system as part of the ‘Future News’ initiative, but they have also been told new contracts will come into force on October 18 – whether they sign them or not.
Last week I spoke to Employment Lawyer Michael Byrnes from Swaab about the issue on McKnight Tonight.
It’s important to note neither I nor Michael have seen the new contracts. The conversation was based on reports by sources and conversations with executives at Nine.
You can see the entire interview in the YouTube player below.
Nine staff facing “sign by showing up” contract push. Here’s what the law says
Nine staff have been told new contracts are coming, and that if they keep turning up to work after October 18, they’ll be taken to have accepted the terms. Signed or not.
It’s one of the most contentious parts of the changes rolling out under the Future News project, and staff are now holding secret meetings with unions to find out where they stand.
Is it legal? Sometimes.
Byrnes says it can be, if staff say nothing.
“Where an employee has not signed the employment contract, where they’ve not raised any positive objection to the contract, and they continue working consistent with the new contract, then their agreement to the contract can be inferred by their conduct.”
If there’s a dispute later, he says, the employer can argue, “even though the employee didn’t sign the new contract, they didn’t object to it, they continued working.”
But objection is the key, and it has to be maintained. Byrnes says if staff “raise an objection and they maintain that objection and say, ‘We do not agree to these new contracts,’ then it will be difficult for an employer to say that they’ve genuinely agreed.”
What does an objection look like? Byrnes says it’s something like:
“We do not accept the new contract. We do not agree with its terms. Our position is that our employment remains governed by the old employment contract.” Then you turn up to work on that basis.
And you can’t have it both ways. If there’s a pay rise attached to the new contract, taking the money can undo your objection.
“An inference can be drawn from your conduct in accepting that pay increase that you’ve agreed to the terms of the new employment contract.”
His advice is to say you’re not accepting the rise either, which he admits is “a counterintuitive approach.” The principle, he says: “The old contract applies, you’ve got to be consistent.”
For employers, he’s blunt:
“You can’t force new contracts or revised contracts on employees. Employees have to agree to them… It’s like any other contract. Both parties have to agree.”
The overtime fight
There’s a dispute over whether Nine wants staff to agree to 35 hours a month of unpaid overtime. Nine denies it. The network told me the 35 hours is to cover major events like Bondi, and that staff called in on a rostered day off will be paid or given a day in lieu. Some staff left their HR meetings believing otherwise.
Byrnes says the Fair Work Act bars employers from requiring unreasonable hours, but the case law is “very much underdeveloped.” What’s reasonable depends on the role and the pay. The real risk, he says, is underpayment.
“The salary they’re getting doesn’t cover it all.”
He says it hits staff on “80, 90, $100,000 a year” who are required to work very long hours under an award. The salary looks generous, but once you add overtime at the award rate, it doesn’t cover what they’re owed. Nine says it regularly reconciles rosters against pay. Byrnes says that’s what employers must do, because that’s where “a lot of employers have come unstuck in recent years.”
Rostered days off and 3am starts
Can Nine force a camera operator in on a day off when someone’s sick? Byrnes says no, not usually.
“The usual situation would be that an employee cannot be directed to work on a rostered day off… Generally speaking, that’s not going to be a lawful and reasonable direction. Even with a compelling reason, generally that’s not enough to override that principle.”
The exception is where the employee has agreed in their contract that they can be called in under exceptional circumstances. On-call is different, and Byrnes notes it’s “often compensated” with an allowance because of its “incursion into your non-work time.”
What about a staffer on an 8am start being told it’s now 3am? It depends on the contract. It might let the employer allocate shifts at its “absolute discretion,” or require the employee’s agreement, or consultation. And if you’ve got kids to get to daycare by 7am, Byrnes says, that’s a carer’s responsibility worth raising.
He says Nine is likely obliged to consult under the award, on both rostering and major workplace change like new technology. Nine insists the contracts and Future News are separate issues. Byrnes agrees they may be “two separate streams of consultation” but concedes staff could see them as “inextricably linked in reality.” So do I.
“Treat them with respect”
Asked for his biggest advice to any employer making changes like these, Byrnes didn’t hesitate.
“Treat them with respect. Respect is really important in these circumstances. With a television network, a media outlet, your people are fundamental. Without them, you cannot produce content, let alone quality content.”
He says media people are driven by passion, and employers should tap into it, not undermine it. And he had a warning for any employer tempted by a harder line.
“An employer saying to an employee, ‘You’re gonna get a new contract. We expect you to sign it. If you continue working, we’re just gonna assume you’ve accepted it, our way or the highway.’ That’s small business employer stuff where you just roll your eyes and you say, no wonder your staff don’t like you.”
He made clear he wasn’t saying Nine had done that.
To be fair to Nine, free-to-air ratings are strong, but the ad dollars are flowing to big tech, and networks do have to change to survive. Sometimes there’s no good way to do it. But morale at Nine is reportedly at an all-time low, and a contract that treats silence as consent won’t help.
