MA000012 - Decision - 11 Oct 2013

[2013] FWC 7749

FAIR WORK COMMISSION

DECISION


Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 5,Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years

Pharmacy Guild of Australia,The
(AM2012/36)

Pharmacy operations

COMMISSIONER RIORDAN

SYDNEY,11 OCTOBER 2013

Modern Awards Review 2012 - application to vary the Pharmacy Industry Award 2010.

[1] This decision concerns an application by Pharmacy Guild of Australia (PGA) to vary the Pharmacy Industry Award 2010 1 (the Award). The application is made under Sch. 5,Item 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) as part of the review of all modern awards of which the Fair Work Commission (formerly Fair Work Australia) is required to conduct after the first two years of all modern awards coming into effect (the 2012 Review).

[2] The application was subject to numerous Conferences between the parties and was set down for hearing on 26 July 2013.

The Legislation

[3] Sch. 5,Item 6 of the Transitional Act provides:

    “(1) As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day,FWA must conduct a review of all modern awards,other than modern enterprise awards and State reference public sector modern awards.

    (2) In the review,FWA must consider whether the modern awards:

      (a) achieve the modern awards objective;and

      (b) are operating effectively,without anomalies or technical problems arising from the Part 10A award modernisation process.

    (2A) The review must be such that each modern award is reviewed in its own right. However,this does not prevent FWA from reviewing 2 or more modern awards at the same time.

    (3) FWA may make a determination varying any of the modern awards in any way that FWA considers appropriate to remedy any issues identified in the review.

    (4) The modern awards objective applies to FWA making a variation under this item,and the minimum wages objective also applies if the variation relates to modern award minimum wages.

    (5) FWA may advise persons or bodies about the review in any way FWA considers appropriate.

    (6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of FWA) has effect as if subsection (2) of that section included a reference to FWA’s powers under subitem (5).”

[4] Further provisions of the Act are also applicable and relevant to the 2012 Review. Section 134 provides as follows:

    134 The modern awards objective

    What is the modern awards objective?

    (1) FWA must ensure that modern awards,together with the National Employment Standards,provide a fair and relevant minimum safety net of terms and conditions,taking into account:

      (a) relative living standards and the needs of the low paid;and

      (b) the need to encourage collective bargaining;and

      (c) the need to promote social inclusion through increased workforce participation;and

      (d) the need to promote flexible modern work practices and the efficient and productive performance of work;and

      (e) the principle of equal remuneration for work of equal or comparable value;and

      (f) the likely impact of any exercise of modern award powers on business,including on productivity,employment costs and the regulatory burden;and

      (g) the need to ensure a simple,easy to understand,stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards;and

      (h) the likely impact of any exercise of modern award powers on employment growth,inflation and the sustainability,performance and competitiveness of the national economy.

    This is the modern awards objective.”

[5] Following mediation immediately prior to the hearing on 26 July 2013,the parties advised that there were three remaining issues left for arbitration:

      (a) The definition of a Full Time employee and the number of hours that they work (Clause 11);

      (b) The reduction of the minimum engagement provision for school students (Clause 12 and 13);and

      (c) An extension of the Annualised Salary provisions to employees other than Pharmacists (Clause 27).

[6] The Pharmacy Guild of Australia (PGA) was represented by Mr Easton (Counsel) and Ms Mark (Meridian Lawyers). Australian Business Limited (ABL) was represented by Mr Roucek. Ms Fox and Ms Biddlestone represented the Shop,Distributive and Allied Employees' Association (SDA) and Ms Baulch represented Association of Professional Engineers,Scientists and Managers Australia (APESMA). Ms Fox put in an appearance on behalf of the Health Services Union (HSU).

[7] The parties agreed that the variations that have been consented to should have an operative date of 1 October,2013. A Determination 2 prescribing this variation was issued on 23 September 2013.

[8] In reaching my decision in relation to the three outstanding issues I have taken into account all of the submissions and material which has been tabled before the Commission. The PGA submitted detailed information and a significant number of affidavits. ABL supported each of the variations proposed by the PGA.

[9] The first variation sought by the PGA is in relation to the definition of a full time employee in the following terms:

“11. Full time employee

      A full-time employee is an employee who is engaged to work the number of hours regarded as the full-time hours at the particular workplace. The full-time hours must be 38 or less per week.”

[10] It was acknowledged that this variation has been sought as a result of a decision of the Fair Work Ombudsman to provide clarity and certainty for those employees who work full time in pharmacies but the opening hours of the pharmacy are restricted to 35 hours per week.

[11] Whilst I sympathise with the intention of the PGA,I fail to see how introducing a “spread”of hours in the Award meets the modern award objective. Such a change would unnecessarily create ambiguity and confusion in the industry and is therefore in direct conflict with the underlying premise of the Review process.

[12] It is possible and prudent for this proposed variation to be dealt with at each enterprise utilizing the provisions contained in Part 2.4 of the Fair Work Act 2009 (the Act) which relate to Enterprise Agreements.

[13] The second variation sought by the PGA was in relation to the minimum period of engagement for part time and casual secondary school students. The Award currently states:

“12. Part time employees

      12.2 At the time of engagement,the employer and the part-time employee will agree,in writing,on a regular pattern of work,specifying at least:

. . .

        (e) that the minimum daily engagement is three hours;

. . .

      12.5 An employer is required to roster a part-time employee for a minimum of three consecutive hours on any shift.”

“13. Casual Employment

. . .

      13.4 The minimum daily engagement of a casual is three hours.”

[14] The PGA proposed the following variations:

    (i) Delete clause 12.2(e).

    (ii) Vary clause 12.5 to read:

      “12.5 An employer is required to roster a part-time employee for a minimum of three consecutive hours on any shift provided that the minimum engagement period for an employee will be one hour and 30 minutes if all of the following circumstances apply:

        (a) the employee is a full-time secondary school student;and

        (b) the employee is engaged to work between the hours of 3.00 pm and 6.30 pm on a day which they are required to attend school;and

        (c) the employee agrees to work,and a parent or guardian of the employee agrees to allow the employee to work,a shorter period than three hours;and

        (d) employment for a longer period than the period of the engagement is not possible either because of the operational requirements of the employer or the unavailability of the employee.”

    (iii) Vary clause 13.4 to read:

      “13.4 The minimum daily engagement of a casual is three hours provided that the minimum engagement period for an employee will be one hour and 30 minutes if all of the following circumstances apply:

        (a) the employee is a full-time secondary school student;and

        (b) the employee is engaged to work between the hours of 3.00 pm and 6.30 pm on a day which they are required to attend school;and

        (c) the employee agrees to work,and a parent or guardian of the employee agrees to allow the employee to work,a shorter period than three hours;and

        (d) employment for a longer period than the period of the engagement is not possible either because of the operational requirements of the employer or the unavailability of the employee.”

[15] In June 2012,the Modern Awards Review Full Bench established the following guidelines:

    “[85] . . . awards made as a result of the award modernisation process are now deemed to be modern awards for the purposes of the FW Act (see Item 4 of Schedule 5 of the Transitional Provisions Act). Implicit in this is a legislative acceptance that the terms of the existing modern awards are consistent with the modern awards objective.

    “[89] In circumstances where a party seeks a variation to a modern award in the Review and the substance of the variation sought has already been dealt with by the Tribunal in the Part 10A process,the applicant will have to show that there are cogent reasons for departing from the previous Full Bench decision,such as a significant change in circumstances,which warrant a different outcome.” 3

[16] The PGA has made applications to the Commission in the past that are similar and consistent with the current application. In February 2010,a seven member Full Bench dealt with two applications to vary this Award pursuant to item 14 of Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009,and determined the following:

    “[4] The PGA seeks to vary the part-time employment clause to allow engagement of part-time employees for less than the current three hour minimum by agreement of the employee concerned. It states that shorter periods of engagement are justified by the unique needs of pharmacies to open for the purposes of fulfilling prescription obligations,the practice of employing school students after school and the practice of holding staff meetings for training and information purposes.

    [5] The SDA and The Association of Professional Engineers,Scientists and Managers,Australia (APESMA) strongly oppose the application. They say that the matter is a re-run of earlier proceedings and discussions leading to agreed variations and the changes are neither necessary nor desirable.

    [6] The PGA has not established any changed circumstance since this matter was considered during stage one of the award modernisation process. The three hour minimum engagement is reflected in a number of pre-existing awards and Notional Agreements Preserving State Awards (NAPSAs). Although some pre-existing awards and NAPSAs have lesser minima,in our view the terms of the modern award are not out of step with most of the instruments. We do not approve the variation.”

[17] I am convinced that the Full Bench of the Commission fully considered this proposal in the past and rejected the proposed variation. The PGA have been unable to identify any anomaly or provide substantive evidence of any significant change or error as a result of the creation of the Modern Award.

[18] The third variation sought related to expanding the opportunity for Pharmacy’s to offer an annualised salary to all employees. The PGA seeks the following variation:

“27 Annualised Salary (Pharmacist only)

      An annualised salary for pharmacist employees may be developed. Such salary may be inclusive of overtime,penalty rates,payments for public holidays taken,annual leave taken,annual leave loading,meal allowance,and meal break on call entitlements (where payable). Provided that the annual salary paid over a year was sufficient to cover what the employee would have been entitled to if all award entitlements had been complied with when calculated on an individual basis according to the hours worked.”

[19] The PGA had sought a similar variation in earlier stages of the Award Modernisation process without success. The issue was the subject of recent detailed negotiations between the parties but agreement could not be reached.

[20] For the reasons already enunciated at paragraph (15) the PGA fails the substantive test required to support the variation. I am not persuaded that there has been such a significant change in circumstance or the creation of an anomalous situation since the making of the Modern Award to warrant the intervention of the Commission to vary the award.

[21] Similarly to the variation sought in relation to full time hours,this variation can be introduced by agreement at a pharmacy level in accordance with the Enterprise Agreement provisions of the Act.

[22] The Modern Award exists to provide a minimum set of employment conditions for employees in the Pharmacy Industry. It provides a safety net. It is not intended to provide a definitive solution to every exigency in every pharmacy across Australia,irrespective of size,location or opening hours. The Act creates that flexibility.

[23] For the reasons stated above,I am not satisfied that any of the three disputed variations sought by the PGA meet the relevant tests pertaining to the Modern Award Review.

[24] I hereby reject the application.

[25] A determination is contained in PR541862.

COMMISSIONER

Appearances:

M Easton with K Mark of Counsel for The Pharmacy Guild of Australia

M Roucek for Australian Business Limited

J Fox and K Biddlestone for the SDA and HSU

J Baulch for APESMA

Hearing details:

2013.

Sydney:

26,July.

 1  MA000012

 2  PR541862

 3  2012 FWAFB 5600.

Printed by authority of the Commonwealth Government Printer

<Price code C, MA000012  PR542864 >

About this document
(1)
Code:
PR542864D
Title:
MA000012 - Decision - 11 Oct 2013
Effective:
11 Oct 2013
Updated:
14 Oct 2013
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MA000012 - Decision - 11 Oct 2013
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