[2015] FWC 6555

The attached document replaces the document previously issued with the code [2015] FWC 6555 on 22 September 2015.

The following correction has been made:

● The document reference number in the header of the Statement has been amended to read [2015] FWC 6555.

Mirella Franceschini

Associate to Justice Ross

Dated 23/09/2015

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards
(AM2014/209)

Plain language modern award instruments pilot – Pharmacy Industry Award 2010

Introduction

[1] Section 156 of the Fair Work Act 2009 (the Act) requires the Fair Work Commission (the Commission) to review all modern awards every four years. In a Statement issued on 17 March 2014 1 the Commission stated that the first 4 yearly review of modern awards (the Review) would comprise of an Initial stage, dealing with jurisdictional issues, a Common issues stage and an Award stage.

[2] As part of the Award stage of the Review, the Commission will conduct a Pilot to produce a plain language exposure draft based on the Pharmacy Industry Award 2010 (the Pharmacy Award). The plain language exposure draft, along with any other issues relating to the review of the Pharmacy Award, will be considered by a Full Bench in 2016.

[3] The Pilot will involve the Commission engaging the services of a plain language expert to redraft the Pharmacy Award. The expert will be instructed to redraft clauses without altering their legal effect. The plain language draft will then be user-tested by individuals covered by the award.

[4] A report on the Pilot will be published upon its completion. The results of the Pilot will be taken into consideration by the Commission in deciding whether any other modern awards will undergo a similar process.

[5] This statement outlines the background, scope and process for the Pilot.

Background

[6] The modern awards objective, in s.134 of the Act, is central to the Review. The modern awards objective requires the Commission to take into account “the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards” 2.

[7] Since the commencement of the Review, the Commission has undertaken a number of steps to reduce complexity of modern awards including:

● The release of the Commission’s ‘Guide to Award Stage’ 3 in June 2014, which outlines that modern awards should “avoid technical jargon and use simple language while ensuring provisions are precise and legally enforceable” and that the Commission would seek “the views of parties on any research material produced such as draft awards or model clauses”.4

● The release of exposure drafts prepared by Commission staff as part of the Award Stage, taking into account the above principles. 5

● The release of qualitative ‘citizen co-design’ research in September 2014 (undertaken with small business operators) which reviewed the usability of a selection of modern awards and an Exemplar Award 6 to address some of the structural issues identified in modern awards. This research has informed the Commission’s approach to preparing exposure drafts and its approach to further simplifying awards.

[8] The Commission’s continuing commitment to simplifying and standardising language across modern awards was recently reiterated by a Review Full Bench which observed that:

‘[6] At the outset we would observe that the decision to redraft and modify the language used in modern awards was not taken lightly. This Full Bench has predominantly been dealing with technical and drafting matters, with claims to make substantive variations to modern awards being referred to other Full Benches to consider on their merits based on the evidence presented. Staff of the Fair Work Commission under guidance from the Full Bench have sought to simplify and standardise language across modern awards to remove ambiguity and make awards simpler and easier to understand, consistent with the statutory direction to take into account the “need to ensure a simple easy to understand stable and sustainable modern award system” (s.134(1)(g) of the Fair Work Act 2009 (the Act)).

[7] Some parties have resisted this process but the fact that there has been so much debate about the actual entitlements of an employee under various award provisions confirms the needs for such a review. An award should be able to be read by an employer or employee without needing a history lesson or paid advocate to interpret how it is to apply in the workplace.’ 7

Scope of Pilot

[9] The review of the Pharmacy Award in accordance with s.156 of the Act is being dealt with in matter AM2014/209.

[10] An exposure draft based on the Pharmacy Award was prepared by staff of the Commission in December 2014. Parties from employer associations and unions have made submissions to the Commission on a number of issues relating to the exposure draft. 8 On 31 March 2015 the Pharmacy Guild of Australia submitted a ‘Plain English Draft’ of the Award.9

[11] The purpose of the Pilot is to create a plain language document based on a revised version of the exposure draft which is both simpler and easier for employees and employers to understand than the current Award.

[12] On 2 September 2015, the Commission conducted a conference with parties to matter AM2014/209 in which the Commission stated that the Pilot would be based on the exposure draft prepared by Commission staff and outlined the process that would be followed.

[13] The draft will be prepared by an external expert in plain language drafting engaged by the Commission and user tested with employers and employees covered by the Pharmacy Award.

[14] Importantly, as part of this Pilot:

● The plain language draft is not intended to change the substantive legal effect of any award term.

● A draft prepared by the plain language expert will be based on a revised version of the existing exposure draft prepared by Commission staff in September 2015.

● While the plain language draft will be based on a revised version of the existing exposure draft, the plain language expert will consider the ‘Plain English Draft’ submitted by the Pharmacy Guild of Australia and comments on the draft submitted by the relevant unions in preparing the draft instrument.

● Parties to matter AM2014/209 will participate in the process of developing the plain language draft.

● User testing of the draft instrument will be undertaken by an external provider engaged by the Commission.

Next steps

[15] By 25 September 2015, the Commission will publish:

● a report on the progress of the review of the Pharmacy Award; and
● a revised exposure draft reflecting updates outlined in the above report.

[16] By 25 September 2015, the Commission will also circulate instructions for the plain language drafting expert and the user testing services to parties to matter AM2014/209 for comment.

[17] A brief mention/timetabling conference will be held on 30 October 2015 to finalise the timetable for the pilot.

[18] Following any comments received on the instructions, a plain language draft will be prepared by the expert. Parties to matter AM2014/209 will be invited to provide feedback on the draft award-specific clauses.

[19] A revised plain language draft will be the subject of user testing with employers and employees covered by the Award.

[20] A report on the Pilot, along with the plain language draft of the Pharmacy Award, will be published in April 2016 for comment by the parties and for consideration of a Full Bench along with any other issues relating to the review of the award.

PRESIDENT

 1   [2014] FWC 1790

 2   Fair Work Act 2009, s. 134(1)(g).

 3   The Guide, released by Commission staff on 16 June 2014, is designed to provide assistance to parties on the objectives and processes involved in the award stage (as distinct from the common issues stage).

 4   https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/4-yearly-review-Guide-to-Award-Stage.pdf see paras 30 and 32.

 5   https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/4-yearly-review-Guide-to-Award-Stage.pdf, para 20.

 6   The Exemplar award was prepared by Commission staff http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/Exemplar-award.pdf

 7   [2015] FWCFB 4658, paras 6-7.

 8   Exposure Draft Pharmacy Industry Award 2014, http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/Exposure-draft-pharmacy.pdf

 9   To view all materials submitted as part of the review of the review of the Pharmacy Industry Award 2010 (Matter AM2014/209), please refer to the Commission’s website: MA000012

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