A stoush has erupted between journalists and their union over lengthy delays in action against an extraordinarily harsh standard contract offered to freelance contributors by Fairfax Media.

The standard contract, which Fairfax Media has been demanding contributors sign for at least three years, states that any freelancer who has more than three pieces published by Fairfax Media in a six-month period is not allowed to submit their work to other media companies without permission.

Crikey yesterday forwarded a copy of the Fairfax contract to the Australian Competition and Consumer Commission, asking whether it represented an illegal restraint of trade. Spokesperson Lin Enright said the matter had referred to the enforcements division for assessment.

Crikey will report on any developments. The standard Fairfax agreement can be read on my blog here.

But in the meantime the 180-strong Sydney Freelance Journalists’ Group is asking prominent journalists to sign an open letter to the Media, Entertainment and Arts Alliance asking why it has taken three years for the organisation to seek permission to collectively bargain on their behalf in opposing the contract.

The situation is complex. Because of Howard government-initiated changes to the Trade Practices Act, independent contractors have to apply for an exemption in order to collectively bargain. It was at first believed that unions were prohibited from making such applications.

But as long ago as August 2008, ACCC head Graeme Samuel clarified the legislation, saying in a letter to the minister for small business and independent contractors, Craig Emerson, that while unions could not themselves lodge an application for collective bargaining, they could assist individuals and groups of individuals seeking approval, and then bargain on their behalf.

“A notification could, for example, be lodged on behalf of the parties to a collective bargaining group by one of the members of the group with the assistance of a trade union,” Samuel said.

Since then several unions have successfully sought permission to collectively bargain on behalf of groups of members, including the Transport Workers Union of Australia and the Construction, Forestry Mining and Energy Union .

The freelancers were under the impression that their union had also lodged such an application on their behalf, but found out this week that the ACCC had not received it.

In a draft of the open letter to the union, the freelancers say that the three-year delay “only reinforces the perception held by many freelancers that their needs are of a lower priority than journalists who are employees”.

So why has it taken the journalists’ union so long to act?

Several phone calls to the union over the past two days have failed to elicit a satisfactory response.

At first,  Crikey and the Sydney Freelance Journalists’ Group were told that the application for exemption had finally been lodged with the ACCC yesterday. A union organiser wrote to the group:

“I can report that our lawyers have just gotten back to me — the application has been sent to the ACCC today.”

But a check with the ACCC this morning revealed that it had not been received. The union then stated that it was seeking a waiver or reduction of the fee for lodging such applications, and was awaiting adjudication on this before proceeding.

Enright said that once an application was received, it was hard to say how long it might take before a decision was made on granting an exemption. “It’s a bit like saying how long is a piece of string.”

Meanwhile Fairfax’s Group executive editor, Phil McLean, told Crikey this morning that so far as he was aware the union had not raised the issue of the contract with the company. “This is the first I have heard about it,” he said. He said that if the ACCC raised any concerns, then the company would consider amending the agreement.

But MEAA spokesman Jonathan Este said that McLean was wrong — the union had raised the issue with Fairfax Media Group General Counsel Gail Hambly, who had agreed in principle to increase from three to six the number of stories a freelancer had to contribute before being restrained from dealing with other media companies. The union had considered this an inadequate response, he said.

Meanwhile, Este said, the MEAA was trying to organise a broad-ranging campaign on Fairfax Media’s treatment of freelancers.

In a letter to the freelance group, the union has called for a campaign “on the ground” to oppose the agreements, given that there is no guarantee that Fairfax Media will agree to bargain over the agreements.

“Most campaigns in the union movement are won on the ground, not in the courts,” the letter says.

“We need a vast majority of people freelancing in the industry to say no these contracts, and say yes to being part of an active campaign so that all major media outlets, not just Fairfax, listen to the concerns of freelancers.”

But the chair of the Sydney Freelance Journalists’ Group, Rachael Osman-Chin, said members were “very distressed and outraged” at the union’s delays in taking action, particularly given the increasing importance of freelancers as staff journalists were made redundant.

Peter Fray

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