Industrial law - award - interpretation of employee performing voice recording" of television programme. Conciliation and Arbitration Act 1904 s. CATCHWORDS over work Public Service Arbitration Act 1920 "engaged in the original Conciliation and Arbitration Amendment Act (No. 2) 1983 Actor's etc. (A.B.C. Master Builders' Association of Victoria v. Australian Radio and Television) Award 1985 award - whether Building Construction Employees' and Builders Labourers' Federation (1981) 54 F.L.R. 358 Seamen's Union of Australia v. Adelaide Steamship Co. Ltd. (1976) 46 F.L.R. 444 ACTORS' EQUITY OF AUSTRALIA NV. CORPORATION N.S.W. No. 6 of 1986 Gray J. 19th December 1986 Melbourne. AUSTRALIAN "BROADCASTING a a maa apes A ta <- om IN THE FEDERAL -I0UFT OF AUSTRALIA NEV SOUTH WALES DISTRICT REGISTRY ) ) } INDUSTRIAL DIVISION } PETWEEN: ACTURS' EGUITY OF AUSTRALIA Applicant AND AUSTRALTAN BROADCASTING CORPORATION Respondent JUDGE: GRAY J. DATE: 13TH DECEMBER 1986 WHERE MADE: MELBOURNE MINUTE OF ORDER THE COURT URDERS AND DECLARES that, on its true construction, clause 50 of the Actor s etc. 1A.B.C. Radic and Television) Award 1385 applies to an employee of the respondent who 15 a member of the applicant and whose voice 1s recorded by way of narrative on the sound track of a television programme, but whose visual image does not appear in that programme. Note: Settlement and entry of orders 15 dealt with by Urder 36 of the Federal Court Rules. IN THE FEDERAL OKT up MISTRAL IA + NEW SOUTH WALES DISTRICT REGISTRY ; N.S.W. No. 6 of 1286 INDUSTRIAL DIVISION ) BETWEEN: ACTORS' EQUITY OF AUSTRALIA Applicant AND AUSTRALIAN BROADCASTING CORFORATION Resvondent JUDGE: GRAY J. DATE: 13TH DECEMBER 1586 REASONS FOR JUDGMENT The applicant, Actors Equity of Australia, is an organization of employees, registered pursuant to the Conciliation and Arbitration Bck 1904 ("the Act"). By application f1led on 29th May 1986, 1t seeks an interpretation, pursuant to s. 110 of the Act, of cl. 50 of the Actor's etc. (A.B.C. Radio and Television) Award 1985 ("the Award"). The Award was made by the Australian Conciliation and Arbitration Commision. By virtue of cl. S, it came ints operation on 29th November 1995. By cl. 3, the parties bound are the Minister for Communications, the respondent to Ehis proceeding and the applicant in this preceeding. Clause 50 of t) the Award provides as fo pe hr a z ia) "S50 - PROGRAMS SOLD OVERSEAS When the Corporation sells toa an Overseas organisation, a program made by the Corporation, thers Shall be disbursea among those emplovees engaged in the Original recording of the programme as sum equal ta 1s or tha sale of the 2/2 per centum otf the gross revenu programme." wo By its application, the applicant sought the following orders: "Ll. An order or declaration that, on uts true construction, Clause 50 of the Actors Etc (ABC Radio and Television) Award 15985 applies to an employee who has performed "voice over" work on a documentary television programme which is sold by the Australian Broadcasting Corporation to an overseas organisation. Z. An order or declaration that, on 21¢ts true construction, Clause 50 of the Actors Etc (ABC Radio and Television) Award 1335 15 not restricted to "televised performances" and applies to any emplovee engaged in the original recording of a programme intended for screening on television which 1s sceld by the Austrailan Broadcasting Corporation to an overseas organisation." Some controversy has arisen between the parties as a result of work done by one John Larking, a member of the applicant, in relation to a television documentary entitled "Douglas Mawson - The Survivor", on 13th July 1982. That television documentary has subsequently been sold overseas. The applicant contends, and the respondent denies, that Mr. lLarking 1s entitled to receive some of the gross revenue from the sale of the documentary. Mr. Peterson 9.C., who appeared with Mr. Kite for the respondent contended that the Court should not aive an interpretation in this proceeding, 'Secause the Court will not dacide under s. 110 cases which arise on disputed facts or hypothetical circumstances. He pointed out that Mr. Larking 5 work was performed before the Award came into existence. He argued that, 1f Mr. Larking has any entitlement, it 15 pursuant to cl. 47 of the Public Service Arbitrator 3 Determination No. 114 of 1974, a determination made under the Fubliz S3ervice Arbitration Act 1329, and which bound the respondent and its predecessor, the Australian Broadcasting Commission. FPursuant to s. £3(2)(a) of tne Conciliation and Arbitration Amendment Act (No. 2) 1983, which abolished the office of Public Service Arbitrator and transferred the powers of that office to the Australian Conciliation and Arbitration Commission, the determination continues in effect. It was argued that anv rights which Mr. Larking may have arise from that determination, and are not touched by cl. 50 of the Award. An interpretation of the Award would therefore be fruitless. It should be understood clearly that, in this proceeding, the Court 1s not called upon to decide any question as to the rights of Mr. Larking. In points of defence filed prior to the hearirg, the respondent raised the contention that "the contract the subject of the proceedings was not a contract of employment". This contention was based on the misapprehension that Mr. Larking's rights would be determined in the proceeding. At the hearing, Mr. Peterson agreed that the question whether Mr. Larking was or was not an employee was not in issue in this case. A proceeding under s. 110 would not be appropriate for a - 2 - determination of the aissue of the entitlements of a particular person, See Master Builders Association af Victoria an Tt Australian Building Construction Employees and Builders Labourers Federation (1981) S4 F.L.R. 358, especially at bages 360-362. There can be no doubt that a real controversy exists between the sarties as to the proper construction of cl. 50 of the Award. It 15 conceded that that clause andcl. 47 of Determination No. 114 of 1974 are in identical terms in all material respects. The coposing contentions which have been raised in relation to Mr. Larking are therefore likely to he raised in relation to other members of the applicant. Such members may wish to know where they stand before accepting offers to perform work of various kinds in relation to television programmes. There would be littie point in seeking an interpretation of the Determination, even if there were power in the Court to give such an interpretation, because, for future purposes at least, the Award supersedes the Determination (see cl. 4 of the Award). In addition, 1t 15 at least arguable that the rights of persons in Mr. Larking's position may depend upon the Award, and not upon the Determination. On one view of cl. 50 of the Award, no yvright arises until a sale to an overseas organisation has been effected; a right 1s then accorded to each person falling within the clause, as having been engaged as an employee in the original recording of the programme concerned. Mr. Peterson informed the Court that sales of "Douglas Mawson = - The Survivor" have been made to overseas buyers, both before and after the Award came into effect. This fact may give rise toa - & - rights under cl. 50 of the Award, for those employees engaged in the original recording of that programme. It 15 unnecessary to reach a final determination on this question in the present case. It 15 enough that the question 1s arguable. For these reasons it seems to me to be entirely appropriate for the Court to exercise its jurisdiction under 3s. 110 of the Act, to give an interpretation of cl. 50 af the Award in the present case. The aunterpretation was sought in relation to the performance of "voice over" work. The parties differed somewhat as to the meaning to be attributed to this phrase. In an affidavit filed with the application, the Federal Secretary of the applicant described "voice over" as work performed by an actor or actress, by vecording a spoxen narrative to sychronize with visual images, where the marrative 15 recorded at a different point in time to the visual images and the narrator does not necessarily appear ain the visual images. Mr. Paterson pointed out that voice over work may be done by a person who is not an actor or an actress, but who may be, for instance, an announcer. He also stated that voice over work is often performed by recording on tape, entirely independently of the visual images; the volce tape is then edited as part of the sound track, and svchronized with the visual images to make the completed programme. Mr. Feterson also stated that 1t 15 usual that the narrator is not seen in a television programme. Accepting these differences of view, for the purposes of this case, it can be taken that "voice over" work includes the recording of a narrative by a person who does not appear in a television programme, but which narrative forms part of the sound track of that programma. The Award 15 divided into three parts. The first" part contains clauses of general application. Part <2 is headed "Performances in Radio Only", and applies to employees engaged for performances and/or rehearsals for such programmes made by the respondent for transmission inits radic division. Part 3 1s headed "Television Only". With respect to part 3 the Award provides: "This part appliés to employees engaged for perrormances and/or rehearsals for such performances which will be televised and/or filmed, tele-recorded or recorded by any other means." Clause 50, which has already been set out, appears in part 3. It must therefore be read in conjunction with the opening words of part 3. Clause 6 of the Award contains some definitions of general application. The following are relevant: (a) "Association" means the claimant organisation. (f£) "Employees" means a member of the Association employed by the Australian Broadcasting Corporation in accordance with the provisions of this Award. (h) "Performer" means an employee who takes part ino or who 1S engaged to take part ain the rehearsal and/or performance of a radio or television programme. (i) "Leading Performer" or "Co-Leading Performer" ("lead" or "co-lead") means a performer who takes part in or 15 engaged to take part in the rehearsal and/or performance of a yadio or television programme and who - F = a 1s classified by the Corporation as the leading performer ("Lead") or co-leading performer ("co-iead") as the case may be in accordance with the provisions of clause 8 of this Award. (J) "Recording" means the process of recording a performance by any means whatsoever. - Clause 45 of the Award contains some definitions which are relevant to part 3 cf the Award. These include: "(c) "Extra"" means a person whether in costume or not, who takes part in a group, mob, ensemble or atmospheric Scene, who 15 not speaking dialogue except in the mass, who can move individually and in this can be given individual direction: Provided that the Corporation may invite members of the public in civilian dress to join in scenes and such members of the public shall not be regarded as employees and shall not otherwise be covered by this Award. (d) "Special Extra" means a person whether in costume or not, who takes part 1n a group, mob, ensemble or atmospheric scene, who also may perform any individual plece of business as directed and who may be required to individually speak not more than 20 words in any performance. (f) "Cast" means all those employees (including stunt players) taking part in television performance. (g) "Live Performance" means a performance which is transmitted simultaneously with the actual performance of the employee. (h) "Double" means an employee who takes the place of a performer for the purpose of executing services requiring special talent or ability other than that possessed by the performer. eae (j) "Dubbing" means replacing the voice of a performer in a recording with the voice of another performer." The term "programme" (whichever spelling 1s used) used - & - in cl. 50 of the Award 1s not defined. By reference to radio and television, however, 1t does have a common meaning, which 15 expressed in the Macquarie Dictionary as "a particular item or production". Nor 15 the word "performances", as used in the opening words of part 3 of the Award defined, although the definitions of "performer " and "leading performer" and ""co-leading performer" in cl. 6, and of "live performance" in cl. 45(g) indicate that a performance 15 intended to be a dramatic or other entertainment. The words of cl. 50, coupled with the definitions of "employees" and "association" ancl. 6, are apt to include all members of the applicant employed by the respondent whose work contributes to a finished programme. The restriction to members of the applicant 1s sufficient to exclude technical personnel. Voice over work is not performed simultaneously with filming work. No doubt it is usually performed after the appropriate scenes have been filmed, but it may be recorded beforehand. It 1s in the nature of television programmes that different parts of them may be prepared at different times and in different places. All parts, however, contribute to the finished programme. This 1s as true of voice over work as it is of any other performing work. On the face of cl. 50, voice over work performed by an employee whs was a member of the applicant 15 performed by an employee engaged in the original recording of the relevant programme. There 15 no express exclusion of such work from the operation of cl. 50. Mr. Peterson argued for an implied exclusion of voice Pi - 9 - over work, arising from the terms of the Award generally. His contention was that part three of the Award 15 appropriate to apply cto performances of a dramatic kind, rather than those more akin to the role of an announcer. He placed reliance upon the definitions in cls. 6th) and (1), and cl. 45(c), (d), (f) and (g), already quoted. He drew attention to the prohibition on dubbing and doubling (as defined incl. 45) By cl. 523 of the Award, and to the fact that where dubbing 1s permitted, the Award makes no specific provision for the payment of the person whose volce provides the material dubbed onto the sound track. He claimed that announcers employed by the respondent are excluded by the rules of the applicant from eligibility to be its members, and that such persons might just as well do voice over work a5 members of the applicant. The rules of the applicant were not in evidence, and the Court makes no pronouncement on the eligibility of announcers employed by the respondent to be members of the applicant. The distinction which Mr. Peterson sought to draw between dramatic presentation and voice over work 15 a difficult one. He conceded that, on occasions, voice over work might he done by a well known actor, who may or may not appear in the programme concerned. During argument, instances were quoted of well known actors having done voice over work. He also conceded that many radio programmes involve dramatic presentations, using only the voices of those who participate. In my view, the distinction cannot be sustained. Nor is the distinction supported by the provisicns of ~ 1Oo - the Award upon which Mr. Peterson relied. The reference to ""yecorded by any other means" in the opening words of part three ot the Award must be constcued in the laght of the definition of "yecording" in cl. 6(]). When so viewed, it 15 sufficient to include separate sound recording for a television programme. I do not consider that this expression should be read down so as to yelate only to some form of visual recording, by reason of the fact that all of the particular means of recording referred to in the opening words of part three of the Award refer to types of visual recording. The definitions in cl. 6 of the Award are not expressed to be subject to the appearance of a contrary intention. It 1s very clear that a television programme will normally have a sound track, and that this will involve sound recording. To hold that the opening words in part three of the Award exclude sound recording altogether would be to produce a situation unlikely to have been intended by the framers of the Award. It is by no means clear that the definitions in cl. 45, and the definitions of "performer" and "leading performer" and "co-leading performer" in cl. 6 necessarily exclude persons who use their voices only. Clearly, in relation to radio productions, the definitions in cl. 6 do not contain such an implied exclusion. It would be odd if they were to acquire an implied exclusion in their application to part 3 which they do not bear in their application to part 2. It may well be true, as Mr. Peterson stated, that cl. 50 of the Award has not been applied by the parties so as to extend -~ll- benefits to all members of the applicant whose work goes into the production of a television programme. There 15 clear authority, however, that the conduct of the parties after the making of an Award cannot normally be relied upon for the purpose or construing 1t. See Seamen's Union of Australia v. Adelaide Steamship Co. Ltd. (1976) 46 F.L.R. 444, at page 445. Mr. Peterson also sought to compare the terms of two other awards dealing with the production of television programmes for commercial television. He did so for the purpose of showing that documentary programmes were not covered. I am by no means satisfied that both of the awards relied upon do exclude documentary programmes. The Actors Television Programs Award 1973 contains a specific list of the kinds of programmes covered by it, which list does not include documentaries. The Actors etc. (Television) Award 1979 covers all work other than that covered by the 1973 Award, and seems to be appropriate to cover documentaries. Even if it does not, there 15 grave danger in attempting to construe one award by reference to another, where the two awards involve different parties and different considerations. Nor am I satisfied that, where it is legitimately used, dubbing is not covered by cl. 50 of the Award. Even if it were not covered, there 15 no neccessary analogy between dubbing and voice over work. For these reasons, I am of the view that no implied exclusion of voice over work from the operation of cl. 50 can be ore - 12 - found in the Award. I therefore propose to give an unterpretation, which 15 not in the precise terms as that sought, but which will cover the situation. The declaration will be in terms that, on its true construction, cl. 50 of the Award applies to an employee of the respondent who 15 a member of the applicant and whose voice is recorded by way of narrative on the sound track of a television programme, but whose visual image does not appear in that programme. I certify that thas and the ({ preceding pasus are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice 2 oan A Ssoe1l Dated: isfial