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)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT

MELBOURNE, 25 MAY 2020

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 on6 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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 4 yearly review of modern awards—Pharmacy Industry Award 2010 [2020] FWCFB 2716
Case: [2020] FWCFB 2716
Decision Date: 25 MAY 2020

CaseChat Overview and Summary

The Fair Work Commission (FWC) was engaged in a review of modern awards, which included the Pharmacy Industry Award 2010. This review involved the finalisation of Exposure Drafts and variation determinations. The dispute arose from the proposed changes to the award, with stakeholders providing submissions and feedback on the proposed modifications. The matter was heard by the FWC, which was tasked with determining whether the proposed changes were appropriate and in line with the objectives of the Fair Work Act 2009.

The central legal issues before the FWC involved assessing the fairness and reasonableness of the proposed changes to the Pharmacy Industry Award 2010. The Commission needed to ensure that the new terms and conditions reflected contemporary workplace practices and were consistent with the broader objectives of the Fair Work Act, including maintaining a safety net of minimum entitlements, promoting productivity, and facilitating economic growth. Additionally, the FWC had to consider the submissions from various stakeholders, including employers and employees, to ensure a balanced approach in the final determination.

In reaching its decision, the FWC thoroughly examined the evidence and submissions provided by stakeholders. The Commission found that the proposed changes to the award were fair and reasonable, taking into account the need to reflect current industry practices and the interests of both employers and employees. The FWC determined that the changes would support productivity and economic growth while ensuring that workers' entitlements were protected. The Commission finalised the Exposure Drafts and issued variation determinations, implementing the changes as proposed. The outcome aimed to balance the interests of all parties involved and to ensure that the award remained relevant and effective in the contemporary workplace environment.

The FWC issued the final variation determinations for the Pharmacy Industry Award 2010, incorporating the changes agreed upon. The new award terms and conditions came into effect from the specified date, ensuring that all parties were aware of and could comply with the updated provisions. This decision marked the completion of the first tranche of the 4 yearly review process, setting a precedent for future reviews of other modern awards.

Orders