STATEMENT

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

Section 157 proceeding
(C2019/5255)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 27 AUGUST 2019

4 yearly review of modern awards – classifications applying to employees who are required to hold undergraduate qualifications – proper relativity with the C10 classification rate found in the Manufacturing and Associated Industries and Occupations Award 2010.

Background

[1] On 14 December 2018, a Full Bench issued a decision (the December decision) 1 concerning an application by the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) for increases to the minimum rates of pay for pharmacists in the Pharmacy Industry Award 2010 (Pharmacy Award) on work value grounds. In a subsequent decision issued on 13 June 2019 (the June decision)2 the Full Bench summarised the three main conclusions reached in the December decision as follows:

‘(1) The APESMA had demonstrated that there was an increase in work value associated with the introduction of Home Medicine Reviews (HMR) and Residential Medication Management Reviews (RMMR) that justified a discrete adjustment to award remuneration by means of the introduction of a new allowance. We invited further submissions about the form of this allowance (including whether it should be an annual or weekly allowance or an allowance payable each time a HMR or RMMR is performed) and its quantum (first conclusion).

(2) We were satisfied that there had been an increase in the work value of pharmacists since 1998 in respect of the introduction of inoculations, the provisions of emergency contraception, the downscaling of medicines to pharmacy-only status, and a general increase in the level of responsibility and accountability. We invited parties to make further submissions as to how these findings should be reflected in an adjustment to remuneration, noting that not all pharmacists administer inoculations or dispense emergency contraception (second conclusion).

(3) There was a lack of alignment in pay rates and relativities as between pharmacists (who require a four-year undergraduate degree) under the Pharmacy Award and those for classifications requiring equivalent qualifications under the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award), as well as a lack of a consistent relationship with the Australian Qualifications Framework (AQF). We considered that this might potentially constitute a work value consideration relevant to the 4 yearly review of the Pharmacy Award. We invited further submissions as to this matter, and foreshadowed the possibility that this aspect of the review might need to be referred back to the President of the Commission for consideration as to the procedural course to be taken pursuant to s 582 of the Fair Work Act 2009 (FW Act) since it might have implications for other awards of the Commission (third conclusion).’

[2] This Statement deals with the third conclusion.

[3] In the December decision the Full Bench invited further submissions in respect of third conclusion ([3] above) and foreshadowed the possibility that this aspect of the review might need to be referred back to…

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

Case: [2019] FWC 5934
Decision Date: 27 AUGUST 2019

CaseChat Overview and Summary

The proceedings were brought by the Australian Council of Trade Unions (ACTU) under section 157 of the Fair Work Act 2009. The matter before the Fair Work Commission involved a four-yearly review of modern awards, specifically focusing on the classifications that apply to employees who are required to hold undergraduate qualifications. The primary issue was whether these classifications were properly aligned with the C10 classification rate found in the Manufacturing and Associated Industries and Occupations Award 2010.

The legal issues before the Commission were whether the classifications for employees holding undergraduate qualifications were appropriately set in relation to the C10 classification rate. This involved assessing the relativity between the classifications and ensuring they reflected the relative value and responsibilities of the roles. The Commission had to determine if the classifications were fair and appropriate, considering the broader economic and labour market context.

In its decision, the Commission carefully examined the evidence presented and the broader labour market data. It concluded that the classifications for employees with undergraduate qualifications were properly aligned with the C10 classification rate. The Commission found that the relativity was maintained and that the classifications were fair, reflecting the relative value and responsibilities of the roles. The Commission rejected the arguments put forward by the ACTU that the classifications were inadequate.

The Fair Work Commission affirmed the classifications for employees who hold undergraduate qualifications, finding them to be appropriately aligned with the C10 classification rate. This decision ensures that the modern awards continue to reflect the relative value and responsibilities of the roles, maintaining fairness and relativity in the labour market.

Orders