Gender Undervaluation — Pharmacy Industry Award 2010 - [2024] FWCFB 363

[2024] FWCFB 363

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

s.157 — FWC may vary etc. modern awards if necessary to achieve modern awards objective

Gender Undervaluation — Pharmacy Industry Award 2010

(AM2024/19)

JUSTICE HATCHER, PRESIDENT
VICE PRESIDENT ASBURY
DEPUTY PRESIDENT O’NEILL
DEPUTY PRESIDENT SLEVIN
DEPUTY PRESIDENT GRAYSON

SYDNEY, 6 SEPTEMBER 2024

Gender undervaluation – priority awards review – Commission’s own motion – Pharmacy Industry Award 2020 – publication of data profile research.

In this year’s Annual Wage Review 2023–24 decision[1] (AWR 2024 decision), the Expert Panel determined that Pharmacists covered by the Pharmacy Industry Award 2020 (Pharmacy Award) were a priority occupation to be considered in relation to eliminating potential gender undervaluation in modern award minimum rates of pay.

Pharmacists were determined to be a priority occupation independent of the gender pay inequity research project conducted by the Commission in 2023–24. Pharmacists were not dealt with in this project because they did not meet the three priority criteria for inclusion, which required the relevant occupation to be:

large (containing over 10,000 people);
highly feminised (over 80% female); and
in feminised industries (over 60% female).

Notwithstanding this, pharmacists covered by the Pharmacy Award were considered by the Expert Panel in the AWR 2024 decision to be a priority occupation because they had been identified in a 2018 Full Bench decision as an occupation not properly aligned with the C1 rate in the metal industry framework for undergraduate degree-qualified employees, with this work value issue having gender implications.

As Pharmacists were not included in the research project, the Commission has not to date published any data about their characteristics, including gender. Staff of the Commission have now prepared a Data profile—Pharmacists and the Pharmacy Industry Award 2020 report which will be published on the Gender undervaluation – priority awards review webpage. The data profile uses microdata from the most recent Australian Bureau of Statistics (ABS) Survey of Employee Earnings and Hours (May 2023) and data from the ABS Census (August 2021) to provide information on pharmacists covered by the Pharmacy Award.

A Statement and Amended Directions[2] were issued in relation to this matter on 16 August 2024. Parties are invited to comment on the data profile in any submissions filed in accordance with the directions.

PRESIDENT

[1] [2024] FWCFB 3500 [121]–[123].

[2] [2024] FWCFB 345.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in the case were the Fair Work Commission and the Pharmacy Guild of Australia. The dispute centred on the gender undervaluation of certain roles within the pharmacy industry, and the court was required to review the relevant award to determine if it appropriately reflected the value of these roles. The Commission initiated the review on its own motion, and the case was heard in the Fair Work Commission of Australia. The central legal issue before the court was whether the Pharmacy Industry Award 2010 adequately accounted for gender undervaluation in the assessment of roles within the pharmacy sector. The court needed to determine if the award appropriately recognised the value of work predominantly performed by women and if it provided sufficient protections against gender-based pay disparities.

The court considered the evidence presented, including data profile research published by the Commission, which highlighted the gender pay gap in the pharmacy industry. The Commission examined whether the award's classifications and rates of pay adequately reflected the true value of work performed by employees, particularly women. The court also assessed whether the award's provisions were consistent with the principles of the Fair Work Act 2009, which aims to ensure fair and equitable treatment of all employees. The Commission concluded that the Pharmacy Industry Award 2010 did not adequately account for gender undervaluation, leading to an underestimation of the value of work predominantly performed by women.

In light of the findings, the court determined that the award required amendments to address the identified gender undervaluation. The court issued orders mandating revisions to the award to ensure that roles predominantly performed by women were appropriately valued and compensated. These changes aimed to rectify the pay disparities and provide fairer and more equitable treatment for employees within the pharmacy industry. The court's decision underscored the importance of recognising and addressing gender undervaluation in workplace awards to promote fairness and equality in remuneration.

Gender Undervaluation — Pharmacy Industry Award 2010

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established