Four yearly review of modern awards - [2015] FWC 7467

[2015] FWC 7467

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

4 yearly review of modern awards
(AM2014/209)

JUSTICE ROSS, PRESIDENT MELBOURNE, 29 OCTOBER 2015

Plain language modern awards 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. As part of the Review, the
Commission is conducting a Plain language modern awards pilot (Pilot) to produce a plain
language exposure draft based on the Pharmacy Industry Award 2010 (the Pharmacy Award).
The background and scope of the pilot were outlined in a Statement issued on 22 September
2015.1

[2] This statement attaches a timetable for the Pilot and the instructions for the Plain
language drafting services and User testing services.

Background

[3] Further to the Statement of 22 September 2015:

 on 25 September, the Commission published a report on the progress of the
review of the Pharmacy Award, entitled ‘Further revised summary of
submissions’;

 on 25 September, the Commission published a revised exposure draft of the
Pharmacy Award reflecting updates resulting from Commission decisions and
determinations as well as conferences between the parties entitled Revised
exposure draft – 25 September 2015; and

 on 27 September 2015, the Commission circulated draft Instructions for plain
language drafting and Instructions for user testing services to parties to
AM2014/209 for comment. These instructions are at Attachment B and
Attachment C.

STATEMENT

E AUSTRALIA FairWork Commission

[2015] FWC 7467

[4] Parties to AM2014/209 provided comments on the draft Instructions. Following
comments received, the Instructions were revised to include Schedule A––Classification
Definitions in the list of award-specific clauses (see Appendices to Attachment B and
Attachment C).

[5] Commission staff undertook a procurement process for the plain language drafting
services and Mr Eamonn Moran QC PSM has been engaged to prepare a plain language
exposure draft based on the updated Pharmacy Award exposure draft.

[6] A mention conference with parties to AM2014/209 was held on 29 October 2015 to
finalise the timetable for the Pilot. The timetable is at Attachment C.

Next steps

[7] Eamonn Moran QC PSM will draft plain language award-specific clauses (see list
appended to Attachment B and Attachment C).

[8] Parties to matter AM2014/209 will be invited to provide feedback on the draft plain
language award-specific clauses via a submission process and a conference prior to user
testing with employers and employees covered by the Pharmacy Award.

[9] A report on the Pilot will be published in April 2016 along with the plain language
draft of the Revised exposure draft. Parties will be invited to comment on the plain language
exposure draft in the relevant Full Bench proceedings along with any other issues relating to
the review of the award.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

Price code A, PR573433

1 [2015] FWC 6555

https://www.fwc.gov.au/documents/decisionssigned/html/2015FWC6555.htm

[2015] FWC 7467

Attachment A – Timetable: Plain language modern awards pilot (Pilot)

Event Date

Draft award-specific plain language clauses circulated to
parties to AM2014/209 for comment

24 November 2015

Submissions on award-specific clauses due
No later than 4pm
10 December 2015

Summary of submissions published 14 December 2015

Conference of parties to AM2014/209 to discuss draft
plain language award-specific clauses

9:30am
17 December 2015 (Sydney)

User testing of draft plain language award-specific
clauses

January–March 2016

Report on the Pilot published April 2016

[2015] FWC 7467

Attachment B – Instructions for plain language re-drafting of the exposure draft based
on the Exposure Draft Pharmacy Industry Award 2014

Background

As part of the Award stage of the 4 yearly review of modern awards, the Fair Work
Commission (Commission) will conduct a Plain language modern award pilot (Pilot) to
produce a plain language exposure draft based on the Exposure Draft Pharmacy Industry
Award 2014. The exposure draft is based on the Pharmacy Industry Award 2010.

The overarching objective of this project is to create a plain language version of the exposure
draft that is both simpler and easier for end-users to understand than the Pharmacy Industry
Award 2010.

Staff of the Commission originally prepared the exposure draft in December 2014. This
instrument took account of findings from Citizen co-design research conducted on behalf of
the Commission and other information and materials.

This instrument has recently been updated (September 2015) to take account of the
submissions made to the Commission on a number of issues relating to the exposure draft
since it was published in December 2014.

Services required

Drafting

The main service required is the production of a plain language draft of the Exposure Draft
Pharmacy Industry Award 2014 which does not alter the legal effect of any clauses.

The exposure draft comprises award-specific clauses as well as standard model terms that
have been determined by Full Bench decisions. Only the award-specific clauses will be
subject to review by parties and user-testing as part of the Pilot. As such, the clauses in the
exposure draft may be dealt with in tranches in order to expedite the drafting process and
have been divided into Part A (award-specific clauses) and Part B (standard clauses).

The plain language draft must retain the structure/layout of the Exposure Draft Pharmacy
Industry Award 2014, but it may change heading titles as appropriate.

The drafter will not be required to calculate minimum wage rates for presentation in the plain
language draft. Rather, the drafter is to provide instruction to the Commission’s contract
manager(s) on how this information is to be presented. Commission staff will perform any
required calculations for presentation in the plain language draft if required.

The drafter should refer to the ‘Plain English Draft’ submitted by the Plain English
Foundation and comments submitted in relation to the ‘Plain English Draft’. The plain
language drafter should also refer to the current award to the extent that the objective of the
Pilot is to produce a version that is simpler and easier for end-users to understand than the
Pharmacy Industry Award 2010.

https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/citizen-codesign-report.pdf
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review

[2015] FWC 7467

Key documents:

 Exposure Draft Pharmacy Industry Award 2014 (Plain language exposure draft)
 ‘Plain English Draft’ submitted by the Pharmacy Guild of Australia and comments on

the draft submitted by the relevant unions
 Pharmacy Industry Award 2010

Part A plain language draft

The initial focus of plain language drafting should be the award-specific clauses of the
Exposure Draft Pharmacy Industry Award 2014 (see Appendix for ‘Part A’ clauses).

The Part A plain language draft clauses may be subject to revisions, as outlined below, and
will be subject to user-testing with employers and employees covered by the Pharmacy
Industry Award 2010.

Part B plain language draft

Once award-specific clauses have been redrafted, standard clauses which have been subject
to Full Bench Decisions should be redrafted (see Appendix for ‘Part B’ clauses).

The Part B draft clauses will not be user tested (or provided to parties for comment) as part of
the Pilot; however, findings from user testing and comments from parties on the Part A
clauses may be used to inform redrafting of these clauses as appropriate. The Part B draft
clauses will be subject to future consultation processes with interested parties to the 4 yearly
review following the publication of the report on the Pilot in April 2016.

Revisions to Part A plain language draft clauses

Following consultation with relevant parties, the Commission may require the drafter to
amend Part A clauses.

The revised Part A clauses would then be the subject of user testing with employers and
employees covered by the Pharmacy Industry Award 2010. If appropriate, the drafter would
be encouraged to attend any focus group research activities to observe the feedback provided
by end-users.

Further changes to the Part A clauses may be required to incorporate findings from user
testing. Alternatively, recommendations for changes that take account of findings from the
user testing would be required for inclusion in a final report on the Pilot.

The drafter may also provide recommendations on any changes to the structure/layout of the
Exposure Draft Pharmacy Industry Award 2014 which could make it simpler and easier for
end-users to understand. These recommendations would be incorporated into the final report
on the Pilot.

Deliverables & indicative timing

 Draft Part A clauses by mid-late November 2015.

https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000012/default.htm
https://www.fwc.gov.au/sites/awardsmodernfouryr/AM2014209-sub-PGA-310315.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/Revised-exposure-draft-pharmacy-25Sep15.pdf

[2015] FWC 7467

 Revision of the Part A clauses to incorporate feedback from parties by mid-January
2016.

 Observe user testing focus groups (if appropriate) in mid-February 2016.

 Draft Part B clauses of the Exposure Draft Pharmacy Industry Award 2014 by end-
March 2016.

 Review of findings from user testing and further revision of Part A clauses or
provision of recommendations for changes to Part A clauses by end-March 2016.

 Tracking document attached to each version of the draft Plain language instrument
that explains the amendments made.

[2015] FWC 7467

Appendix to Attachment B

Part A—Award-specific clauses

These clauses of the Exposure Draft Pharmacy Industry Award 2014 have not been the
subject of Full Bench Decisions and will be subject to review by parties and user testing as
part of the Pilot.

Part 1—Application and Operation
1. Title and commencement
3. Coverage

Part 2—Types of Employment and Classifications
6. Types of employment
7. Classifications

Part 3—Hours of Work
8. Ordinary hours of work and rostering
9. Breaks

Part 4—Wages and Allowances
10. Minimum wages
11. Allowances

Part 5—Penalties and Overtime
13. Overtime
14. Penalties

Schedule A—Classification Definitions

Schedule G—Definitions

Part B—Clauses that have been the subject of Full Bench Decisions

These clauses of the Exposure Draft Pharmacy Industry Award 2014 have been the subject of
Full Bench Decisions and will not be subject to review by parties and user testing as part of
the Pilot.

Part 1—Application and Operation
2. The National Employment Standards and this award
4. Award flexibility
5. Facilitative provisions

Part 4—Wages and Allowances
12. Superannuation

Part 6—Leave, Public Holidays and Other NES Entitlements
15. Annual leave
16. Personal/carer’s leave and compassionate leave
17. Parental leave and related entitlements
18. Public holidays
19. Community service leave
20. Termination of employment
21. Redundancy

[2015] FWC 7467

Part 7—Consultation and Dispute Resolution
22. Consultation
23. Dispute resolution

Schedule B—Summary of Hourly Rates of Pay

Schedule C—Summary of Monetary Allowances

Schedule D—Supported Wage System

Schedule E—National Training Wage

Schedule F—2014 Part-day public holidays

[2015] FWC 7467

Attachment C – Instructions for plain language modern awards pilot: Testing the Plain
Language Exposure Draft Pharmacy Industry Award 2014

Background

The exposure draft was updated in September 2015 to take account of the submissions made
to the Commission since it was first published and then re-drafted in plain language. The
plain language draft has been subject to consultation with stakeholders and now needs to be
tested with employers and employees who are covered by the Pharmacy Industry Award
2010.

Services required

User testing the Plain Language Exposure Draft Pharmacy Industry Award 2014

The main service required is an in-depth examination of if, and how, the Plain language
instrument is simpler and easier for employers and employees to understand than the
Pharmacy Industry Award 2010.

A key objective of the plain language drafting process has been to ensure that the Plain
language instrument does not alter the legal effect of any clauses in the current award. The
user testing is to complement this objective by examining the interpretation of clauses in the
Plain language instrument and if there are any notable patterns across the employer and
employee audiences.

All modern awards comprise some clauses that are specific to the award as well as standard
clauses that appear in all awards. The instrument that is tested will include some clauses that
have been drafted in plain language and some clauses (i.e. the standard clauses) that have not
been subject to plain language redrafting. The user testing will focus on the award-specific
clauses that have been redrafted in plain language. The Appendix indicates which clauses are
award-specific and those that are standard clauses.

Key documents:

 Plain Language Exposure Draft Pharmacy Industry Award 2014 (Plain language
instrument)

 Pharmacy Industry Award 2010

https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000012/default.htm
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/Revised-exposure-draft-pharmacy-25Sep15.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/citizen-codesign-report.pdf
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review

[2015] FWC 7467

The structure and layout of these instruments differs and some of the headings may vary. A
document outlining which clauses from the Plain language instrument and the current award
are directly comparable will be provided to the successful tenderer to assist with development
of data collection tools.

Proposed method and scope

It is anticipated that a mixture of in-depth interviews and focus groups discussions would be
suitable to meet the objectives of the research. The number of interviews and focus groups
and the composition of the research sample will be determined by the Commission based on
the research proposals received from tenderers.

It is anticipated that employers and employees covered by the Pharmacy Industry Award
2010 will be included in the research. Other audiences, including advocates and advisors (e.g.
accountants, book keepers, IR consultants) have not been considered a primary audience for
the Plain language instrument and user-testing with these groups will not form part of user
testing for the Pilot.

As demonstrated in the Citizen co-design research findings, the location of research
participants is unlikely to have a significant influence on the key considerations of the
proposed research. Therefore, to limit costs and maximise convenience for the Commission
staff and others to observe focus groups, it’s proposed that the focus group discussions be
held in Melbourne, or Melbourne and one regional Victorian location within 1.5 hours of
Melbourne (such as Bendigo or Geelong).

In-depth interviews

The interviews could be undertaken with employers in their workplace or where they would
usually undertake administrative tasks such as processing payments and working out
employee entitlements. The interviews could assess how the employers:

 presently source information about award conditions;

 locate and interpret information contained in the current award; and

 locate and interpret information contained in the Plain language instrument.

A mix of observational data and responses to open-ended questions posed by interviewers
would be generated from the interviews and this data could be analysed together with data
generated from focus group discussions.

Focus groups

The objective of the focus group research conducted with employers and employees
(separately) would be to encourage discussion about the features of the Plain language
instrument that research participants like, with particular reference to differences to the
existing instrument, and ideas for improving the instrument to make simpler and easier to
understand.

Deliverables & indicative timing

Importantly, the research would seek specific, actionable feedback about the Plain language
instrument in order to build on the general insights obtained from the Citizen co-design

https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/citizen-codesign-report.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/citizen-codesign-report.pdf

[2015] FWC 7467

research about modern awards. The report produced from the research will highlight the
features of the Plain language instrument that participants liked (i.e. should be retained) and
any features that require improvement and how they could be improved in order to meet the
plain language objectives.

The research supplier would undertake the data collection and will be responsible for the
production of the draft and final report. Approximately 10 weeks have been allowed for
collection and analysis of qualitative data and reporting the findings from the research.

It may be possible for the Commission or parties to the plain language drafting Pilot to source
research participants or provide assistance with these services. Otherwise, these services are
to be provided or sub-contracted by the research supplier. A further 2-3 weeks can be allowed
in the project timings to source suitable research participants.

https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/citizen-codesign-report.pdf

[2015] FWC 7467

Appendix to Attachment C

Award-specific clauses that will be redrafted in plain language

These clauses of the Exposure Draft Pharmacy Industry Award 2014 are specific to the award
and will be subject to plain language redrafting.

Part 1—Application and Operation
1. Title and commencement
3. Coverage

Part 2—Types of Employment and Classifications
6. Types of employment
7. Classifications

Part 3—Hours of Work
8. Ordinary hours of work and rostering
9. Breaks

Part 4—Wages and Allowances
10. Minimum wages
11. Allowances

Part 5—Penalties and Overtime
13. Overtime
14. Penalties

Schedule A—Classification Definitions

Schedule G—Definitions

Standard clauses that will be retained in the Plain language instrument that is tested

These clauses of the Exposure Draft Pharmacy Industry Award 2014 will be the same or
similar to what appears in the current award.

Part 1—Application and Operation
2. The National Employment Standards and this award
4. Award flexibility
5. Facilitative provisions

Part 4—Wages and Allowances
12. Superannuation

Part 7—Consultation and Dispute Resolution
22. Consultation

[2015] FWC 7467

23. Dispute resolution

Schedule B—Summary of Hourly Rates of Pay

Schedule C—Summary of Monetary Allowances

Schedule D—Supported Wage System

Schedule E—National Training Wage

Schedule F—2014 Part-day public holidays

Cases cited by this decision:

Four yearly review of modern awards - [2015] FWC 6555

Four yearly review of modern awards - [2015] FWC 7467

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