Freelance journalists and their union should consider taking a test case against the nation’s leading publishers over unfair contracts, according to two Sydney barristers specialising in employment law.
The barristers, David Chin and Michael Heath, of the Wentworth Chambers in Sydney, say there are three possible grounds for legal action by individual journalists or the union acting on their behalf.
The standard contract offered by Fairfax Media could be the subject of a civil action for restraint of trade, they say. In recent months some freelancers have been threatened with not being paid if they refuse to sign these contracts, which limit their ability to work for other media once they have had a certain number of articles in Fairfax publications.
More broadly, what the lawyers describe as “oppressive” contracts being offered by Australian Consolidated Press, Fairfax Media and Pacific Publications could be the subject of an action for unconscionable conduct under the Trade Practices Act.
Another possible ground for action is the Federal Independent Contractors Act, which allows the Federal Court to review and set aside contracts found to be unfair or harsh.
The barristers’ findings follow the announcement that the Australian Competition and Consumer Commission has authorised the journalists’ union, the Media Entertainment and Arts Alliance, to collectively negotiate with publishers over freelance contracts.
Without ACCC authorisation collective bargaining for independent contractors would be a breach of the anti-competition provisions of the Trade Practices Act.
The Alliance yesterday described the ACCC ruling as a “significant victory”, and said it would now try to negotiate reasonable terms for freelance journalists with News Ltd, Fairfax Media, ACP Magazines and Pacific Magazines in areas such as pay, copyright, moral rights and freedom to contract with other media organisations.
But according to Chin and Heath, the ACCC ruling will have limited effect, because the publishers are under no obligation to negotiate and the freelancers are not authorised to take legal industrial action to bring them to the table.
The way forward, the barristers say, is more likely to be for either individual freelancers or the union on their behalf to take a test case.
The issue of freelance contracts has previously been a source of strain between the Alliance and freelance members, who have claimed the union has been too slow to act on their behalf.
Chin is the husband of Rachael Osman-Chin, who is the chair of the Sydney Freelance Journalists Group, which has had a sometimes critical relationship with the union.
Commenting on the ACCC ruling yesterday, Osman-Chin said it would be “very interesting” to see how the union used its new power to establish ground rules for acceptable conduct in the freelance world, “one that is growing as employee journalism positions disappear at a rapid rate”.
She nominated contracts from Fairfax Media and Pacific Magazines as particularly in need of challenge.
Osman-Chin said: “These contracts are bad enough for freelancers who write lifestyle stories and features, but if hard news reporting moves out of newsrooms and into the hands of freelancers there will be serious consequences for quality journalism if these kind of contracts become entrenched as the industry norm.
“What freelance news reporter in their right mind will file an important story at the risk of losing their home as they would under the current Pacific Magazines standard contract, which demands freelancers fully indemnify the publisher ? Also, how can freelance news journalists make a living if once they have only three stories published in a six-month period they are forbidden to seek publication with any other major news outlet with no guarantee of any more work as they would under the current Fairfax standard contract?”
The secretary of the Alliance, Chris Warren, is overseas and could not be contacted for comment on whether the union would consider taking a test case on behalf of freelancers.