[2015] FWC 6555
The attached document replaces the document previously issued with the code [2015] FWC
6555 on 22 September 2015.
The following correction has been made:
The document reference number in the header of the Statement has been amended to
read [2015] FWC 6555.
Mirella Franceschini
Associate to Justice Ross
Dated 23/09/2015
1
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards
(AM2014/209)
JUSTICE ROSS, PRESIDENT MELBOURNE, 22 SEPTEMBER 2015
Plain language modern award instruments pilot – Pharmacy Industry Award 2010
Introduction
[1] Section 156 of the Fair Work Act 2009 (the Act) requires the Fair Work Commission
(the Commission) to review all modern awards every four years. In a Statement issued on
17 March 2014i the Commission stated that the first 4 yearly review of modern awards (the
Review) would comprise of an Initial stage, dealing with jurisdictional issues, a Common
issues stage and an Award stage.
[2] As part of the Award stage of the Review, the Commission will conduct a Pilot to
produce a plain language exposure draft based on the Pharmacy Industry Award 2010 (the
Pharmacy Award). The plain language exposure draft, along with any other issues relating to
the review of the Pharmacy Award, will be considered by a Full Bench in 2016.
[3] The Pilot will involve the Commission engaging the services of a plain language
expert to redraft the Pharmacy Award. The expert will be instructed to redraft clauses without
altering their legal effect. The plain language draft will then be user-tested by individuals
covered by the award.
[4] A report on the Pilot will be published upon its completion. The results of the Pilot
will be taken into consideration by the Commission in deciding whether any other modern
awards will undergo a similar process.
[5] This statement outlines the background, scope and process for the Pilot.
Background
[6] The modern awards objective, in s.134 of the Act, is central to the Review. The
modern awards objective requires the Commission to take into account “the need to ensure a
simple, easy to understand, stable and sustainable modern award system for Australia that
avoids unnecessary overlap of modern awards”ii.
[7] Since the commencement of the Review, the Commission has undertaken a number of
steps to reduce complexity of modern awards including:
[2015] FWC 6555
STATEMENT
E AUSTRALIA FairWork Commission
[2015] FWC 6555
2
The release of the Commission’s ‘Guide to Award Stage’iii in June 2014, which
outlines that modern awards should “avoid technical jargon and use simple
language while ensuring provisions are precise and legally enforceable” and that
the Commission would seek “the views of parties on any research material
produced such as draft awards or model clauses”.iv
The release of exposure drafts prepared by Commission staff as part of the
Award Stage, taking into account the above principles.v
The release of qualitative ‘citizen co-design’ research in September 2014
(undertaken with small business operators) which reviewed the usability of a
selection of modern awards and an Exemplar Awardvi to address some of the
structural issues identified in modern awards. This research has informed the
Commission’s approach to preparing exposure drafts and its approach to further
simplifying awards.
[8] The Commission’s continuing commitment to simplifying and standardising language
across modern awards was recently reiterated by a Review Full Bench which observed that:
‘[6] At the outset we would observe that the decision to redraft and modify the language
used in modern awards was not taken lightly. This Full Bench has predominantly been dealing
with technical and drafting matters, with claims to make substantive variations to modern
awards being referred to other Full Benches to consider on their merits based on the evidence
presented. Staff of the Fair Work Commission under guidance from the Full Bench have
sought to simplify and standardise language across modern awards to remove ambiguity and
make awards simpler and easier to understand, consistent with the statutory direction to take
into account the “need to ensure a simple easy to understand stable and sustainable modern
award system” (s.134(1)(g) of the Fair Work Act 2009 (the Act)).
[7] Some parties have resisted this process but the fact that there has been so much debate
about the actual entitlements of an employee under various award provisions confirms the
needs for such a review. An award should be able to be read by an employer or employee
without needing a history lesson or paid advocate to interpret how it is to apply in the
workplace.’vii
Scope of Pilot
[9] The review of the Pharmacy Award in accordance with s.156 of the Act is being dealt
with in matter AM2014/209.
[10] An exposure draft based on the Pharmacy Award was prepared by staff of the
Commission in December 2014. Parties from employer associations and unions have made
submissions to the Commission on a number of issues relating to the exposure draft.viii On 31
March 2015 the Pharmacy Guild of Australia submitted a ‘Plain English Draft’ of the
Award.ix
[11] The purpose of the Pilot is to create a plain language document based on a revised
version of the exposure draft which is both simpler and easier for employees and employers to
understand than the current Award.
[2015] FWC 6555
3
[12] On 2 September 2015, the Commission conducted a conference with parties to matter
AM2014/209 in which the Commission stated that the Pilot would be based on the exposure
draft prepared by Commission staff and outlined the process that would be followed.
[13] The draft will be prepared by an external expert in plain language drafting engaged by
the Commission and user tested with employers and employees covered by the Pharmacy
Award.
[14] Importantly, as part of this Pilot:
The plain language draft is not intended to change the substantive legal effect of
any award term.
A draft prepared by the plain language expert will be based on a revised version
of the existing exposure draft prepared by Commission staff in September 2015.
While the plain language draft will be based on a revised version of the existing
exposure draft, the plain language expert will consider the ‘Plain English Draft’
submitted by the Pharmacy Guild of Australia and comments on the draft
submitted by the relevant unions in preparing the draft instrument.
Parties to matter AM2014/209 will participate in the process of developing the
plain language draft.
User testing of the draft instrument will be undertaken by an external provider
engaged by the Commission.
Next steps
[15] By 25 September 2015, the Commission will publish:
a report on the progress of the review of the Pharmacy Award; and
a revised exposure draft reflecting updates outlined in the above report.
[16] By 25 September 2015, the Commission will also circulate instructions for the plain
language drafting expert and the user testing services to parties to matter AM2014/209 for
comment.
[17] A brief mention/timetabling conference will be held on 30 October 2015 to finalise the
timetable for the pilot.
[18] Following any comments received on the instructions, a plain language draft will be
prepared by the expert. Parties to matter AM2014/209 will be invited to provide feedback on
the draft award-specific clauses.
[19] A revised plain language draft will be the subject of user testing with employers and
employees covered by the Award.
[2015] FWC 6555
4
[20] A report on the Pilot, along with the plain language draft of the Pharmacy Award, will
be published in April 2016 for comment by the parties and for consideration of a Full Bench
along with any other issues relating to the review of the award.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code A, PR572190
i [2014] FWC 1790
ii Fair Work Act 2009, s. 134(1)(g).
iii The Guide, released by Commission staff on 16 June 2014, is designed to provide assistance to parties on the objectives
and processes involved in the award stage (as distinct from the common issues stage).
iv https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/4-yearly-review-Guide-to-Award-Stage.pdf see paras 30 and
32.
v https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/4-yearly-review-Guide-to-Award-Stage.pdf, para 20.
vi The Exemplar award was prepared by Commission staff
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/Exemplar-award.pdf
vii [2015] FWCFB 4658, paras 6-7.
viii Exposure Draft Pharmacy Industry Award 2014, http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/Exposure-
draft-pharmacy.pdf
ix To view all materials submitted as part of the review of the review of the Pharmacy Industry Award 2010 (Matter
AM2014/209), please refer to the Commission’s website: https://www.fwc.gov.au/awards-and-agreements/modern-
award-reviews/4-yearly-review/award-stage/award-review-documents/MA000012?m=AM2014/209
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000012?m=AM2014/209
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000012?m=AM2014/209
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/Exposure-draft-pharmacy.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/Exposure-draft-pharmacy.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/Exemplar-award.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/4-yearly-review-Guide-to-Award-Stage.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/4-yearly-review-Guide-to-Award-Stage.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/submissions/2014FWC1790.pdf
