TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                                    

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT DEAN
COMMISSIONER SPENCER

s.156 - 4 yearly review of modern awards

Four yearly review of modern awards

(AM2016/28)

Pharmacy Industry Award 2010

Sydney

10.03 AM, FRIDAY, 31 MARCH 2017

PN1          

VICE PRESIDENT HATCHER:  Can I take the appearances in Sydney.  Ms Biddlestone, you appear for the SDA?

PN2          

MS K BIDDLESTONE:  Yes, your Honour.  Biddlestone, initial K, for the SDA.  APESMA has also asked me to put appearances in for them; Ms J Baulch.  She is unwell at the moment.

PN3          

VICE PRESIDENT HATCHER:  So you are appearing for them?

PN4          

MS BIDDLESTONE:  Yes.

PN5          

VICE PRESIDENT HATCHER:  All right.  Thank you.  Ms Chan, you appear for Australian Business Industrial and the New South Wales Business Chamber?

PN6          

MS M CHAN:  Yes.

PN7          

VICE PRESIDENT HATCHER:  Ms Light, you appear for the Pharmacy Guild, together I think with Mr S Harris and Ms C Lombard in Canberra.

PN8          

MS J LIGHT:  May it please.

PN9          

VICE PRESIDENT HATCHER:  In Melbourne, Ms Liebhaber, you appear for the HSU?

PN10        

MS R LIEBHABER:  Yes, your Honour.

PN11        

VICE PRESIDENT HATCHER:  Thank you.  I assume you will be going first, Ms Biddlestone.

PN12        

MS BIDDLESTONE:  Yes.

PN13        

VICE PRESIDENT HATCHER:  Ms Biddlestone, you have seen the submission from ABI which came in fairly late?  You haven't?

PN14        

MS BIDDLESTONE:  No.  I'm sorry, your Honour, I only saw the email that was sent out by AMOD this morning.  I was in transit last night coming from Melbourne to Sydney and I didn't realise that the email from Kate Thompson last night was in relation to the matter this morning.  It wasn't until 9.15 this morning when I saw the email from the AMOD team that I realised that further submissions had been filed, so I haven't even had an opportunity to read those submissions.

PN15        

VICE PRESIDENT HATCHER:  We might do two things to rectify that.  Firstly, give you a short adjournment to have a chance to read them or, secondly, give you leave to file any written submission in response that you want to file within seven days.  Do either of those options attract you?

PN16        

MS BIDDLESTONE:  Well, your Honour, my preference would be to file written submissions in response.

PN17        

VICE PRESIDENT HATCHER:  Right.

PN18        

MS BIDDLESTONE:  However, the seven days isn't going to be a possibility.  I'm actually commencing a week of leave from today, so if the Commission would be able to grant three weeks, I might be able to provide a response in relation to that.  However, the SDA does have some objections about the Full Bench permitting the ABI to file their submissions out of time.  They're not just out of time.  They have been filed out of working hours the night before a 10 am hearing.

PN19        

VICE PRESIDENT HATCHER:  I understand your objection, but at the end of the day if we don't allow them, Ms Chan can just read them out and it becomes an oral submission.

PN20        

MS BIDDLESTONE:  Okay.  I'm not in a position today to respond to those submissions.

PN21        

VICE PRESIDENT HATCHER:  All right.

PN22        

MS BIDDLESTONE:  So my preference would be that I can respond to the Guild's submissions, but I would prefer to make written submissions in reply.

PN23        

VICE PRESIDENT HATCHER:  We will give that opportunity.  Does any other party wish to have an opportunity to respond to ABI's submissions?  All right.  Thank you.  Ms Biddlestone, will you first take us through the consent changes, just briefly explain those - - -

PN24        

MS BIDDLESTONE:  I can do that, yes.

PN25        

VICE PRESIDENT HATCHER:  - - - and then deal with the contested matter.

PN26        

MS BIDDLESTONE:  In relation to the issues which are substantive claims before the Full Bench, four of the issues were made on behalf of the SDA and two were made on behalf of the Guild.  Those matters have been agreed by the parties and draft determinations were filed on 17 February on behalf of all parties.  Those variations go to - the first is in relation to a minimum engagement period for secondary school students.  That was an application made by the Guild, which they might want to go to further following my submissions.

PN27        

VICE PRESIDENT HATCHER:  Does that reflect the position in the General Retail Award?

PN28        

MS BIDDLESTONE:  Yes, it does, your Honour.  There are some slight changes to the actual wording of the clause, but the nature of the clause is the same.

PN29        

VICE PRESIDENT HATCHER:  All right.  Thank you.

PN30        

MS BIDDLESTONE:  Then the other claim made by the Guild was to expand the annualised salary provision.  Currently in the award it's only to apply to pharmacists and the agreement was that this would be expanded to also include pharmacy assistant level 4s.

PN31        

VICE PRESIDENT HATCHER:  What does a pharmacy assistant level 4 do?

PN32        

MS BIDDLESTONE:  A level 4 pharmacy assistant is in a much higher position, taking on managerial and supervisory roles.  Obviously their rate of pay is higher than pharmacy assistants at the lower levels.  That is where we had some level of comfort in agreeing to level 4 and above only, because we have concerns about annualised salaries impacting on low paid employees.

PN33        

VICE PRESIDENT HATCHER:  All right.  Is there any other change?  Perhaps Ms Light can come back to this, but I would like to know if there are any - it has obviously been redrafted - other changes.

PN34        

MS BIDDLESTONE:  No, your Honour.  Just for your reference, we did try to provide the draft determinations to reflect the most current plain language - - -

PN35        

VICE PRESIDENT HATCHER:  Exposure draft.

PN36        

MS BIDDLESTONE:  Exposure draft.

PN37        

VICE PRESIDENT HATCHER:  Yes, all right.

PN38        

MS BIDDLESTONE:  Then the matters which were raised by the SDA, the first was in relation to junior wages.  That is now only to apply to level 1 and level 2 employees to reflect the fact that if a pharmacy assistant is performing at level 3 or above, then if they're a junior they're performing at a greater skill level and they shouldn't be disadvantaged by receiving a rate of pay lower because of their age.

PN39        

Then the final one was in relation to overtime provisions and this provision has now been inserted into the most recent plain language draft of the award with some minor amendments, which I believe will be the point of discussion for conference in the week commencing 10 April.

PN40        

VICE PRESIDENT HATCHER:  Thank you.  All right.  Now the contested matter.

PN41        

MS BIDDLESTONE:  So the SDA has sought two variations to the Pharmacy Industry Award in relation to full‑time employees.  The first is to include a minimum four‑hour shift and the second is to include terms of engagement provisions.  These claims were discussed between the parties, but no agreement was reached.

PN42        

As directed by your Honour, the SDA filed submissions in relation to these variations on 17 February 2017.  A draft determination in relation to the claim is provided in attachment A to those submissions.  The SDA relies on those submissions and unless the Full Bench would like me to, the SDA does not intend to repeat those submissions now.  The SDA, however, seeks to make oral submissions in response to comments made by the Guild in their submissions in reply filed on 24 March 2017.

PN43        

The SDA claim seeks to include a minimum four‑hour shift provision and a requirement for agreement in writing at the time of engagement to a regular pattern of work, and how that regular pattern of work may be varied for full‑time employees which is consistent with the existing terms for part‑time employees.  The current award contains a minimum shift for part‑time and casual employees, and terms prescribing the establishment of a regular pattern of work at the time of engagement of a part‑time employee and how that pattern of work can be varied.

PN44        

There is currently no minimum shift provision for full‑time employees and no terms prescribed on engagement.  The SDA submits that the inclusion of these provisions remedies an anomaly in the Pharmacy Industry Award by including the same protections for full‑time employees that exist for other permanent employees.  At paragraph 10 of their submission, the Guild submits that the variation being sought is a significant change which must be supported by probative evidence.

PN45        

The preliminary jurisdictional issues decision of the Fair Work Commission, FWCFB 1788, provided guidance about the conduct of the review.  Paragraphs 23 and 60 of the decision go to the conduct of the review and the level of evidence required to determine a matter.  Paragraph 23 of the decision states that the need for a stable modern award system suggests that a party seeking to vary a modern award in the context of the review must advance a merit based argument in support of a proposed variation.  The extent of such an argument in support will depend on the circumstances.

PN46        

We agree with ABI's submission that some proposed changes may be self‑evident and can be determined with little formality.  However, where a significant change is proposed, it must be supported by a submission which addresses the relevant legislative provision and be accompanied by probative evidence properly directed to demonstrating the facts supporting the variation.

PN47        

The SDA disagrees with the comments of the Guild.  The SDA submits that the variations sought are uncontroversial, simple and self‑evident and can be determined with little formality.  We have addressed the legislative framework and we have provided a merits based argument in support of the variation we are seeking, which is what is required for a variation of this nature as part of the award review.

PN48        

VICE PRESIDENT HATCHER:  Ms Biddlestone, does the General Retail Award have a four‑hour minimum?

PN49        

MS BIDDLESTONE:  No, it doesn't, your Honour.  Part of the reason why is that when the awards were modernised, in a good part of that process the Pharmacy Industry Award and the General Retail Industry Award were actually dealt with together, so that's why a lot of the provisions are almost identical, your Honour.

PN50        

VICE PRESIDENT HATCHER:  Well, that's not surprising given that both largely are retail operations.

PN51        

MS BIDDLESTONE:  Their likeness in the industries, yes.

PN52        

VICE PRESIDENT HATCHER:  But if this proposition is self‑evident here, then it would follow that it's self‑evident for retail, wouldn't it?

PN53        

MS BIDDLESTONE:  We have made that application for the General Retail Industry Award.

PN54        

VICE PRESIDENT HATCHER:  Where is that up to?

PN55        

MS BIDDLESTONE:  That hasn't been called on yet.  Outlines of submissions in terms of applications being sought have been filed, but because that is in group 4, that will be dealt with at a later stage.  We have also made an application for the engagement provisions, as well, because that is also absent from the General Retail Industry Award.

PN56        

VICE PRESIDENT HATCHER:  It may be premature to ask, but assuming that matter is opposed in the Retail Award, would there be an intention to call evidence about it for that award or would it likewise be advanced as a self‑evident proposition?

PN57        

MS BIDDLESTONE:  I'm not sure at this stage, your Honour, sorry.  Another industrial officer is running that application, so I'm not sure where they are at with that.

PN58        

VICE PRESIDENT HATCHER:  All right.  Thank you.

PN59        

MS BIDDLESTONE:  The SDA submits that the inclusion of a minimum shift in terms of engagement for full‑time employees is necessary to meet the modern awards objective and resolves an anomaly and incongruity in the current award.  Beyond making submissions regarding the nature of the SDA's submissions, the Guild haven't engaged with the submissions of the SDA and nor have they provided any arguments as to the likely impact that the variations would have on employers or the community pharmacy industry.

PN60        

Beyond saying that we haven't supported our submission with probative evidence, they have not provided any arguments as to why the variation would not meet the modern awards objective or what negative impact the variation would have on their members or on the industry.  I will now respond to some of the comments the Guild has made in relation to the minimum shift provision.

PN61        

Paragraphs 12 to 19 of the Guild's submission go to the issue of quantum for the minimum shift provision.  The Guild questions the SDA claim for a four‑hour minimum shift when the current minimum shift for part‑time and casual employees is three hours.  The SDA claim is for four hours because this is consistent with the claim before the casual and part‑time Full Bench, matter numbers AM2014/196 and 197.

PN62        

VICE PRESIDENT HATCHER:  Isn't the difference that at least with respect to a casual, they can be employed on a sequence of very short days.

PN63        

MS BIDDLESTONE:  Yes, your Honour.

PN64        

VICE PRESIDENT HATCHER:  Whereas full‑time employees, if there is even one short day, it follows that the rest of the days have to be - - -

PN65        

MS BIDDLESTONE:  Long.

PN66        

VICE PRESIDENT HATCHER:  - - - long days.  That is, there is not a capacity to keep doing it in an exploitative fashion.

PN67        

MS BIDDLESTONE:  Not within - well, the situation with the Pharmacy Award is it is an average over two consecutive weeks of 76 hours.

PN68        

VICE PRESIDENT HATCHER:  Yes.

PN69        

MS BIDDLESTONE:  So there could be greater capacity, but within the rostering provisions it wouldn't be - you know, you wouldn't be allocated for very short shifts.

PN70        

VICE PRESIDENT HATCHER:  Yes.  All right.  Thank you.

PN71        

MS BIDDLESTONE:  The SDA is seeking that the minimum shift provision is consistent with the minimum shift provisions for other employees and, given the length, it is currently subject to a determination by the casual and part‑time Full Bench.  We have made the same claim for full‑time employees under the Pharmacy Award.  At paragraph 19 of their submissions, the Guild submits that the introduction of a minimum engagement for a full‑time employee would not affect the weekly remuneration payable or hours worked for a full‑time employee.

PN72        

Then our submission regarding the costs of attending work are an irrelevant consideration in whether the introduction of a minimum engagement for a full‑time employee is required to provide a fair and relevant safety net, the SDA disagrees with this assertion.  The cost of attending work is relevant to the introduction of a minimum engagement provision.  In order to provide a fair and relevant safety net, an award must ensure that employees are given meaningful shifts so that the compensation for attending work is greater than the cost to the employee.  This also goes to the time that's taken to actually get to work and leave work.  It does eat into an additional day if you're rostered for a short shift.

PN73        

At paragraph 21 of their submission, the Guild states that the SDA has failed to account for the already significant protections afforded to full‑time employees with respect to rostering arrangements.  The submission goes on to reference the full‑time employment provision in clause 11 and the manner in which a full‑time employee's hours must be rostered under clause 25 of the Pharmacy Industry Award.  The SDA submits that whilst clause 25 provides some protection for a full‑time employee with respect to rostering, it does not provide a minimum shift requirement.  The clause as it stands does not prevent an employee being rostered to work a shift of any length, which could be as little as a half or a one‑hour shift.

PN74        

Under clause 25.3 of the current award, a full‑time employee will be rostered for an average of 38 hours per week worked in any of the following forms:  38 hours in one week or 72 hours in two consecutive weeks.  Even with the existing rostering protections, a full‑time employee who works an average 76 hours over two consecutive weeks could easily be rostered for an inappropriately short shift and this would comply with the rostering provisions.

PN75        

The SDA submits that the inclusion of a minimum shift provision for full‑time employees is not at odds with the current rostering protections and that this is an important rostering provision which is necessary to providing a fair and relevant safety net with respect to the rostering of full‑time employees.  It would provide greater clarity for employees and employers regarding rostering which is consistent with an award that is simple and easy to understand.

PN76        

The Guild has not made any submissions in relation to the impact that the inclusion of a minimum shift for full‑time employees will have on the industry or that it will be onerous or difficult for employers to comply with the minimum shift provision.  The Guild has not demonstrated that the variation of this nature is inconsistent with any of the modern awards objectives.  In the absence of these submissions, the SDA submits that the application to vary the Pharmacy Industry Award, including a minimum shift provision for full‑time employees, be granted.

PN77        

I will now turn to the second claim, which is the establishment of a regular pattern of work and how it can be varied.  The Guild has not provided much by way of submission in relation to our claim to include a provision for the establishment of a regular pattern of work for full‑time employees on engagement and how that pattern of work can be varied, but I would like to just address a couple of the points raised in the submissions.

PN78        

At paragraph 26 of the submissions, the Guild acknowledges that there is a history in pre‑modern awards of provisions prescribing the arrangement of hours and rosters for a full‑time employee.  They don't agree, however, that they go to the extent as those provided for part‑time employees.  The SDA has provided the history of these provisions in pre‑modern awards at attachment B of our submission.  While the wording and the extent of the clauses may vary across the awards, all bar one have provisions regarding the establishment or variation of rosters for full‑time employees.

PN79        

Nine of the awards contain provisions which require the establishment of a pattern of work - that is, days of the week, hours each day and start and finish times - and all those awards, except one, specifies how the roster can be varied.  Some of the provisions are even more comprehensive than the part‑time provisions in the current award.  For example, the SDA Western Australia Community Pharmacy - Pharmacy Assistants Award 2000.

PN80        

VICE PRESIDENT HATCHER:  Is there any provision in the award as it currently stands which sets out the procedures for notification of working hours?

PN81        

MS BIDDLESTONE:  Not for a full‑time employee.  No, your Honour.

PN82        

VICE PRESIDENT HATCHER:  All right.  Thank you.

PN83        

MS BIDDLESTONE:  Paragraph 60 of the preliminary jurisdictional issues decision states that:

PN84        

In conducting the review, the Commission will also have regard to the historical context applicable to each modern award and will take into account previous decisions relevant to any contested issue.  The Commission will proceed on the basis that prima facie the modern award being reviewed achieved the modern awards objective at the time.

PN85        

The SDA submits that the engagement terms for a full‑time employee were not considered at length during the award modernisation process, nor have they been subject to any consideration since the award was made.  The SDA submits that the history of the pre‑modern awards is compelling in this case.  There is evidence that a significant proportion of pre‑modern awards contained provisions regarding the establishment of a regular pattern of work or roster on engagement of a full‑time employee and the mechanism by which the pattern of roster can be varied.

PN86        

We submit that it is necessary for the award to contain such a provision for all permanent employees, both part‑time and full‑time, in order for the award to provide a fair and relevant safety net and that the insertion of such a clause for full‑time employees resolves an anomaly in the award.  While the award may have been deemed to meet the modern awards objectives at the time it was made, the provision for setting a regular pattern of work or roster for a full‑time employee was not considered at length and, since the making of the award, the Fair Work Act and the award have been amended to include the obligation to consult regarding a change to a regular roster.

PN87        

The SDA's submissions discuss the interaction between the current full‑time provisions and clause 8.2 of the award which gives effect to section 145(a) of the Fair Work Act requiring consultation about changes to rosters or hours of work.  All awards were amended on 24 December 2013 to give effect to section 145 of the Act from 1 January 2014, following a decision of the Full Bench in matter number AM2013/24 on 23 December 2013.

PN88        

While the decision contemplated the interaction between the model consultation clause and other provisions of the modern award, this was not done on an award by award basis and contemplated the scenario where an award contained provisions regarding the setting or varying of a roster, not the scenario for an award absent of such a provision.  In our submission, the absence of a provision for agreement between an employer and employee regarding the establishment of regular working hours and a roster at the time of engagement and the terms on which the agreement can be varied, renders a requirement set out in clause 8.2, Consultation, about changes to rosters or hours of work unavailable for full‑time employees.

PN89        

The SDA submits that this is not consistent with the intention of the Act.  The decision at paragraph 68 of the decision contemplates the definition of "regular roster" and concludes that no definition of "regular roster" is suggested in section 145(a).  Given we're dealing with a model clause, it would be problematic to construct a definition that would meet the diverse circumstances of all modern awards.  This issue can be further considered in the context of the four‑yearly review.

PN90        

The SDA submits that the claim we are making in relation to the inclusion of provisions for the establishment of a regular pattern of work or roster and how that can be varied, is necessary to ensure that clause 8.2 applies to full‑time employees who should be afforded the same protections as part‑time employees for stable and regular hours of work.  The Guild has not made any submissions in response to this.

PN91        

Paragraph 29 of the Guild's submissions states that the nature of the full‑time employment is that employees are guaranteed employment for an average of 38 hours per week and, as such, have greater protections relating to when their rostered hours will be worked compared with other categories of employment.  The SDA does not agree with the Guild's interpretation of the nature of full‑time employment.  We agree that a full‑time employee has a guarantee of an average of 38 hours per week.  However, we submit that the current award does not provide sufficient protections relating to when their rostered hours will be worked.

PN92        

As the award currently stands, the hours of work of a full‑time employee are not required to be set and can be changed without seeking agreement or on provision of notice.  As per our submission, a guaranteed number of hours is not the only factor in determining whether or not an employment relationship is permanent or causal.  Other key factors include whether the employment pattern is regular, whether a roster system is published in advance and whether you work to consistent starting and finishing times.

PN93        

The award does not prescribe how a full‑time employee's hours are established or varied.  In our submission, a guaranteed number of hours is not all that is necessary to providing a fair and relevant safety net in relation to hours worked for full‑time employees.  Full‑time employees, like part‑time employees, need to be able to establish a regular pattern of work that is stable and not subject to frequent variation in order to combine work with commitments outside of work, such as care and responsibilities, which was the intention of section 145(a) of the Act.

PN94        

The absence of a regular pattern of work and the inability of a full‑time employee to have some control over their pattern of work undermines the security and predictable pattern of work that permanent employment should provide.  This also has a disproportionate impact on the participation of women, particularly those who have caring responsibilities.  Community pharmacy, in particular the role of pharmacy assistant, is a female dominated occupation.  The SDA submits that the variation sought provides clarity, simplicity and certainty around an employee's pattern of work hours which is a benefit to both employees and employers.

PN95        

The Guild have not made any submissions to suggest that this does not meet the modern award's objective or that this would create a burden on employers.  In the absence of any submissions from the Guild which demonstrate that the proposed variation is contrary to the modern award's objectives, would create a burden on employers or would have a detrimental impact on the industry, the SDA submits that the variation should be granted.  Thank you.

PN96        

VICE PRESIDENT HATCHER:  Thank you.  Ms Light, do you want to go next?

PN97        

MS LIGHT:  Just in terms of the agreed matters, there is only one additional thing that I would like to add with respect to the SDA's claim in relation to junior wages and the Guild's claim in relation to annualised salary provisions.  The levels at which those variations would take effect are those levels at which the employees covered would have formal qualifications, so a level 3 employee under the award would be a certificate III covered employee for the purposes of the junior wages and that's why the variation has been limited to levels 1 and 2.

PN98        

With respect to the annualised salary provisions, a level 4 is an employee with a certificate IV qualification.  As Ms Biddlestone has said, they are the employees who tend to take on more managerial and supervisory tasks, so in our view it was appropriate to limit the variation at this stage to those employees.  Turning to the substantive claim in relation to full‑time employment, just a matter of housekeeping.  At paragraph 28 of our submission dated 24 March 2017, there is a reference to paragraph 21 and that should be a reference to paragraph 22.

PN99        

VICE PRESIDENT HATCHER:  Thank you.

PN100      

MS LIGHT:  We largely seek to rely upon those written submissions, but there are a few comments that I would like to make in reply to the SDA's submissions today.  Firstly, with respect to the SDA claim in relation the rostering, Ms Biddlestone has indicated that the Guild has not provided much in the way of submission in relation to the claim.  I don't agree with that submission.

PN101      

We have bundled the variations sought with respect to the terms of engagement, being the obligation to notify a person in writing at the commencement what their hours of work will be and the manner in which the roster would be changed.  We have bundled those all together as the terms of engagement submissions from paragraph 26 onward of our written submissions.

PN102      

Ms Biddlestone has also indicated that the Guild has not provided any information or evidence as to what the impact would be on its membership with respect to those variations.  We're not the proponent of a change and in our view we don't bear the onus of proof in demonstrating that the variation is necessary to achieve the modern awards objective, nor are we required to mount a merits based argument as to why the variation shouldn't be affected.

PN103      

The starting position that the Commission operates from is that these awards are prima facie meeting the objective at the time of their formation.  A number of these provisions were in the pre‑modern awards.  The Guild acknowledges that.  The Commission, in making the award, made a decision however to limit their operation to part‑time employees or in the case of a minimum engagement, part‑time and casual employees.

PN104      

In our view, you can't say that there is an anomaly in circumstances where the bench has considered whether those provisions are required to make a fair and relevant safety net with respect to some employees and have ultimately determined not to include them for other employees.

PN105      

VICE PRESIDENT HATCHER:  Is there any express consideration or is that just derived from the modern award which emerged from the process?

PN106      

MS LIGHT:  I don't have the pre-modern decision making the award in front of me, but unfortunately in the making of this award there was a significant debate as to whether the Pharmacy Award should be rolled into General Retail and much of the contention between the parties and the consideration of the bench went to that issue.  If it would assist the bench, we can locate those materials and look to whether it was specifically considered, and seek leave to file some short written submissions in relation to that matter.

PN107      

VICE PRESIDENT HATCHER:  All right.  Seven days to do that.  Ms Biddlestone, you can combine that with your response in 21 days.

PN108      

MS LIGHT:  On the General Retail issue, your Honour asked some questions of Ms Biddlestone in relation to whether there was a claim to increase the minimum engagement in General Retail.  Whilst we appreciate that there are similarities between some of the employees covered by the Pharmacy Award and some of the employees covered by General Retail, it is important to note that particularly with respect to pharmacists, they undertake a very different function to those people covered by the General Retail Award.

PN109      

To the extent that there are some similarities, it shouldn't necessarily follow that a decision in General Retail should be applied with respect to the Pharmacy Award.  It's just general comment in relation to - - -

PN110      

VICE PRESIDENT HATCHER:  Leaving pharmacists themselves aside for the time being, it seems to me the other staff in a pharmacy would be very closely analogous to any other retail environment.

PN111      

MS LIGHT:  Some would be.  Certainly the retail function that they perform would be the same, but there are pharmacy assistants who assist with dispensary tasks and who do the more pharmaceutical - for want of a better word - tasks, including assisting with putting together blister packs of medication; those things that just wouldn't be required of a general retail employee.

PN112      

COMMISSIONER SPENCER:  They're product‑related.  That's product‑related knowledge though, isn't it?

PN113      

MS LIGHT:  Not necessarily.  There can be tasks performed by a dispensary assistant under the supervision of a pharmacist which relate to the - not putting together of the actual compounding of drugs, but certainly putting together the appropriate doses in relation to prescriptions, those kind of things, that is ultimately signed off by a pharmacist before they're prescribed and dispensed.

PN114      

COMMISSIONER SPENCER:  Allocating dosages across a pack.

PN115      

MS LIGHT:  Yes.  Unless there are any questions in relation to our written submissions - - -

PN116      

VICE PRESIDENT HATCHER:  I just want to ask you some questions about the rostering aspect.  I'm just troubled as to how an hours of work clause operates if there is no provision about when employees are informed of what hours they have to work and how they might be changed.  Can you say something about that?

PN117      

MS LIGHT:  There are some provisions in the award which relate to the method of rostering.  There is no specific provision, however, in the Pharmacy Award that says, you know, a roster must be published within a particular period of time in writing, but in our view the protections in section 25 of the award are quite prescriptive in terms of the manner in which a full‑time employee must be rostered.

PN118      

VICE PRESIDENT HATCHER:  They tell you as to when hours can be worked and all those sorts of things, but how is an employee informed in advance of what hours they have to work and what happens when that has to change?  That is the issue.  That is the mechanical issues, not the substantives issues.

PN119      

MS LIGHT:  I don't have instructions as to what is actually happening, but practically an employee must be notified of when they are required to attend work or they don't attend work, so I presume that there is a roster published in a workplace or employees are notified somehow in terms of an email - or whatever individual practice a business has - that they're required to work.

PN120      

Given that the roster periods are either weekly or fortnightly, depending on whether the hours are being averaged, I would also presume that they are issued not less than weekly or fortnightly depending on what arrangements the individual workplace has.

PN121      

VICE PRESIDENT HATCHER:  All right.  Thank you.  Ms Chan?

PN122      

MS CHAN:  May it please the Commission, on behalf of ABI and New South Wales Business Chamber, we would broadly agree with the submissions that have already been put by our colleagues representing the Pharmacy Guild.  In terms of our written submissions, I don't propose to say much about those today given that my colleagues at the SDA haven't had an opportunity to have a look at them yet.

PN123      

What I will say is to the extent that they do go beyond what might already be contained in the Pharmacy Guild's submissions, we certainly wouldn't be opposed to the bench's suggestion that the SDA do have 21 days to respond to that.  Similarly, we would agree with the comments that my colleague here has just made to the bench in response to the reply submissions of the SDA.  Thank you.

PN124      

VICE PRESIDENT HATCHER:  Thank you.  Ms Liebhaber, do you want to make any submissions?

PN125      

MS LIEBHABER:  The HSU would like to support the submissions of the SDA in this matter.

PN126      

VICE PRESIDENT HATCHER:  Thank you.  Anything in reply, Ms Biddlestone?

PN127      

MS BIDDLESTONE:  Your Honour, the only point I would like to make is that I think it's evident from the fact that the Guild are unaware of how rostering actually occurs in workplaces and community pharmacy that it is important that there is a mechanism in the award that applies a standard approach to rostering.

PN128      

VICE PRESIDENT HATCHER:  What does the General Retail Award say about this?

PN129      

MS BIDDLESTONE:  It's absent for full‑time employees, as well.

PN130      

VICE PRESIDENT HATCHER:  So there is no provision about provision of a roster at all?

PN131      

MS BIDDLESTONE:  Only the hours of work provision and the part‑time provisions.

PN132      

VICE PRESIDENT HATCHER:  Is there a claim about - the same claim is being advanced there?

PN133      

MS BIDDLESTONE:  Yes, there will be, definitely.  You know, following the submission that the Guild intend to put in about the modernisation process, my feeling is that what we have gone through shows that this issue wasn't considered during that process.  In fact there are a lot that wasn't considered in relation to the making of the Pharmacy Industry Award, because of what Ms Light described as conjecture mainly over whether the Pharmacy Industry Award and the General Retail Award would be one or separate awards.  I think that evidence will bear that out.

PN134      

VICE PRESIDENT HATCHER:  All right.  Thank you.  Sorry, Ms Light, just to deal with one technical matter, you needed permission to appear for the Pharmacy Guild.

PN135      

MS LIGHT:  Yes, your Honour.

PN136      

VICE PRESIDENT HATCHER:  All right.  We will grant that permission, just for the sake of the record.  We will direct that the Pharmacy Guild has seven days to file any submission it wishes to make concerning materials relevant to the claims arising from the award modernisation process which established the award.  The SDA has 21 days to file any submission it wishes to make in response to ABI's written submissions and in response to any further material filed by the Pharmacy Guild in relation to the award modernisation process.  Upon receipt of that material, we propose to reserve our decision and we will now adjourn.

ADJOURNED INDEFINITELY                                                        [10.39 AM]