DECISION

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

4 yearly review of modern awards—Pharmacy Industry Award 2010
(AM2019/17)

4 yearly review of modern awards – finalisation of Exposure Drafts and variation determinations – Tranche 1 – Pharmacy Industry Award.

[1] In a Statement issued on 26 February 2020 ([2020] FWCFB 979), the Full Bench provided an update on the finalisation of the exposure draft for the Pharmacy Industry Award 2010.

[2] The Statement advised that a conference would be held on 12 March 2020 to discuss any remaining issues in dispute following the publication of a revised tracked Exposure Draft and draft variation determination.

[3] The revised exposure draft included the proposed changes to terminology from a joint report filed on 6 December 2019 by Pharmacy Guild of Australia (PGA), in consultation with Association of Professional Engineers, Scientists and Managers, Australia (APESMA), Shop Distributive and Allied Employees’ Association (SDA) and the Health Services Union (HSU). The joint report is at Attachment A to this decision.

[4] Prior to the conference, the PGA filed a further submission on 10 March 2020.

[5] The conference concerned the joint report and the issues raised in the further submission and was attend by representatives of the PGA, APESMA and the SDA.

[6] At the conference the parties agreed that each of the proposed changes set out at Attachment A should be made except for the following:

Clause 23

[7] The joint report raised two issues with clause 23. Firstly it was proposed that the note at clause 23 be amended as follows:

23. Annual leave

NOTE: Where an employee is receiving overaward payments such that the employee’s base rate of pay minimum hourly rate is higher than the rate specified under this award, the employee is entitled to receive the higher rate while on a period of paid annual leave (see sections 16 and 90 of the Act).

[8] At the conference the parties agreed that the words ‘base rate of pay’ would be retained in the note. We confirm that the variation determination will be updated accordingly.

[9] The second proposed amendment was in relation to clause 23.3(a) as follows:

(a) During a period of annual leave an employee will receive a loading calculated on the rate prescribed in clause 16—Minimum rates of this award in addition to their minimum hourly rate of pay. Annual leave loading payment is payable on leave accrued.

[10] At the conference, APESMA expressed concern with the use of the words “minimum hourly rate”, particularly in the annual leave clause, because a significant number of employees under the award are employed on annualised salary agreements or individual flexibility agreements. Its preference was for the term “minimum rate” be used in the annual leave clause. The SDA expressed a similar view. The PGA conceded that the word ‘hourly’ could be left out of the clause. Accordingly, the final variation determination will not include the word ‘hourly’ in clause 23.3(a).

Schedule G

[11] The next issue addressed concerned terminology with respect to rates of pay in Schedule G to the Exposure Draft. The parties in attendance at the conference were not able to reach agreement on this matter and indicated that further proceedings would be required to argue this issue. However, it was noted that Schedule G, which deals with part-day public holidays, is common across many modern awards. The PGA has subsequently made an application to vary the part-day public holiday schedule. Any variation to Schedule G will be considered through that application.

[12] We confirm that the balance of the proposed changes at Attachment A will be included in the final variation determination.

[13] At the conference the parties also considered the following matters raised by the PGA in the 10 March submission.

Clause 10.1

[14] The PGA submitted that the wording of clause 10.1 should be reworded to flow more concisely as follows:

An employee who is engaged to work for fewer ordinary hours than less than 38 ordinary hours per week (or 76 over 2 consecutive weeks) and whose hours of work are reasonably predictable, is a part-time employee.

[15] At the conference, APESMA and the SDA both agreed with this proposed amendment. We confirm that the variation determination will be amended as outlined above.

Clause 10.5

[16] The PGA submitted that the following amendments should be made to provide clarity:

Any agreement under clause 10.4 must state that any variation agreed by the employer and the employee to any of the matters mentioned in clauses 10.4(a) to 10.4(d) must be in writing and may be of a temporary (eg single shift or rostered period) or permanent nature.

[17] At the conference, APESMA and the SDA both agreed with this proposed amendment. We confirm that the variation determination will be amended as outlined above.

Clause 11.2

[18] The PGA submitted that clause 11.2 should be amended to be consistent with clause 10.7 as follows:

10.7 An employer must roster a part-time employee on any shift for a minimum of 3 consecutive hours.

11.2 The minimum number of hours for which a casual employee may be rostered to work on any day is An employer must roster a casual employee on any shift for a minimum of 3 consecutive hours.

[19] At the conference, APESMA and the SDA both agreed with this proposed amendment. We confirm that the variation determination will be amended as outlined above.

Clause 11.7(q)

[20] The PGA submitted that the final sentence of clause 11.7(q) is not necessary as the requirement has been in effect for previous 12 months. Clause 11.7(q) is set out below:

(q) An employer must provide a casual employee, whether a regular casual employee or not, with a copy of the provisions of clause 11.7 within the first 12 months of the employee’s first engagement to perform work. In respect of casual employees already employed as at 28 February 2019, an employer must provide such employees with a copy of the provisions of clause 11.7 by 28 March 2019.

[21] At the conference the SDA raised a concern that deleting this sentence would remove the trigger for existing employees if they had not already been provided with a copy of the provisions. The parties then agreed that the sentence should remain in the award for a further period of 12 months.

[22] For our part we see no reason to retain the last sentence of clause 11.7(q) and find the SDA’s expressed concern unpersuasive. The time specified in the relevant section has passed and we are not persuaded that the sentence has any useful work to do. We will delete the last sentence of clause 11.7(q).

Clause 17

[23] The PGA submitted that Note 2 at clause 17.1 is a duplicate of the Note at clause 17 and should be deleted. At the conference APESMA and the SDA also agreed that the duplicate note should be deleted.

[24] We agree. The variation determination will be amended as follows:

17. Payment of wages

NOTE: Regulations 3.33(3) and 3.46(1)(g) of Fair Work Regulations 2009 set out the requirements for pay records and the content of payslips including the requirement to separately identify any allowance paid.

17.1 Pay period

(a) The employer may determine the pay period of an employee as being either weekly or fortnightly.

(b) Wages must be paid for a pay period according to the number of hours worked by the employee in the period.

NOTE1: Hours of work may be measured over 2 consecutive weeks.

NOTE 2: The Fair Work Regulations set out the requirements for pay records and the content of payslips including the requirement to separately identify any allowance paid. See Part 3–6, Division 3—Employer obligations in relation to employee records and pay slips.

Clause 21.3

[25] The PGA submitted that clause 21.3 is missing a cross-reference to clause 10.5 and should be amended as follows:

An employer must pay a part-time employee at the overtime rate for each hour worked in excess of the number of hours that the employee has agreed to work under clauses 10.4, 10.5 and 10.12 (Part-time employees).

[26] Clause 10.5 is set out below:

Any agreement under clause 10.4 must state that any variation agreed by the employer and the employee to any of the matters mentioned in clauses 10.4(a) to 10.4(d) must be in writing and may be of a temporary or permanent nature.

[27] At the conference, the SDA submitted that a cross-reference to clause 10.5 is unnecessary as it is a mechanics clause and is not the actual agreement itself. We agree. No change will be made to the variation determination.

Clause 21.4 – Table 5

[28] The PGA submitted that the description title of column 2 in Table 5 should be amended as follows:

% of minimum hourly rate

[29] At the conference, APESMA and the SDA both agreed with this proposed amendment. We confirm that the variation determination will be amended as outlined above.

Clause 32.1

[30] The PGA submitted that the following highlighted wording should be included in the Note in the termination of employment provisions:

NOTE: The notice of termination required to be given by an employee is the same as that required of an employer except that the employee does not have to give additional notice based on the age of the employee (over 45 years and at least 2 years continuous service).

[31] At the conference, APESMA submitted that that the following wording would be more appropriate as it more closely aligns with the wording of the Fair Work Act 2009 (Cth):

NOTE: The notice of termination required to be given by an employee is the same as that required of an employer except that the employee does not have to give additional notice based on the age of the employee if the employee is over 45 years and has completed at least 2 years continuous service.

[32] We agree with APESMA and will amend the variation determination to include the wording as proposed by APESMA.

Schedule B

[33] The PGA submitted that the headings in the tables at B.1.1 and B.1.2 are inconsistent and that one of the tables should be amended. The relevant parts of the tables are set out below:

B.1.1 Full-time and part-time adult employees—Monday to Friday penalty rates

B.1.2 Full-time and part-time adult employees—penalty rates for Saturday, Sunday and public holidays

[34] At the conference, the parties agreed that the headings in B.1.2 are more descriptive of the reality of the industry and that B.1.1 should therefore be amended. We confirm that the following amendments will be made to B.1.1 and B.1.2 for consistency:

B.1.1 Full-time and part-time adult employees—Monday to Friday penalty rates

B.1.2 Full-time and part-time adult employees—penalty rates for Saturday, Sunday and public holidays

[35] We will also amend the clause headings of B.1.2 and B.2.2 to be consistent with the format of B.1.1, B.2.1 and B.1.3 as follows:

B.1.1 Full-time and part-time adult employees—Monday to Friday penalty rates for Monday to Friday

B.2.1 Casual adult employees— Monday to Friday penalty rates for Monday to Friday

Minor drafting issues

[36] The parties also agreed that the following minor errors should be corrected:

•  The reference to ‘clause 0’ in clause 14.3 should be a reference to ‘clause 14.1’.

•  The minor spacing error in clause 16.5(b);

•  The reference to ‘clause 0’ in clause 21.2(e) should be a reference to ‘clause 14’.

•  The cross references to allowance clauses in C.1.1 and C.2.1 need to be updated following the insertion of a new clause 19.2.

Schedule X

[37] On 8 April 2020, Schedule X—Additional Measures During the COVID-19 Pandemic was inserted into the current award. We confirm that the final variation determination will include Schedule X.

Conclusion and next steps

[38] There are no other outstanding technical and draft matters to be determined in relation to the Pharmacy Award. Accordingly, a final draft variation determination will be issued incorporating the amendments listed at [12], [15], [17], [19], [22], [24], [29], [32], [34], [35] and [36] above. Interested parties will have 7 days to comment on the final draft. If no comments are received a final variation determination will be issued and will commence operation on 18 June 2020.

PRESIDENT

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Attachment A—Joint report