1
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards – Pharmacy Industry Award 2010
(AM2016/28)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT DEAN
COMMISSIONER SPENCER
SYDNEY, 5 JULY 2017
Four yearly review of modern awards – Pharmacy Industry Award 2010.
Introduction
[1] Pursuant to s.156(1) of the Fair Work Act 2009 (the FW Act), the Fair Work
Commission (the Commission) is required to conduct 4 yearly reviews of modern awards.
This Full Bench was convened to hear and determine to six substantive claims that remained
in dispute between the interested parties in respect of the Pharmacy Industry Award 2010
(Pharmacy Award). The substantive claims are set out below:
1. Minimum shift and provisions relating to the employment of school
students;
2. The grades at which junior rates should apply;
3. The payment of overtime to casual employees;
4. The coverage of the annualised salary rate;
5. Shift length and terms of engagement for fulltime employees; and
6. Annual close down.
[2] The interested parties to these claims included the Australian Business Industrial
(ABI), the NSW Business Chamber (NSWBC), the Pharmacy Guild of Australia (PGA), the
Health Services Union (HSU) and the Shop, Distributive and Allied Employees Association
(SDA).
[3] On 24 November 2016, directions were issued for the filing of material in relation to
the substantive claims. On 17 February 2017 the SDA on behalf of the interested parties filed
a series of draft determinations in relation to claims 1-4 by consent. The draft determinations
can be found at Annexure A to this decision. Accordingly, the claims were no longer in
dispute between the parties.
[4] On 21 February 2017, the PGA advised the Commission that it did not intend to press
its application in respect of claim 6. The remaining disputed substantive claim (claim 5) was
listed for hearing on 31 March 2017.
[2017] FWCFB 3540
DECISION
E AUSTRALIA FairWork Commission
[2017] FWCFB 3540
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Relevant Statutory Provisions
[5] The modern awards objective is set out in s.134 of the FW Act:
134 The modern awards objective
What is the modern awards objective?
(1) The FWC must ensure that modern awards, together with the National
Employment Standards, provide a fair and relevant minimum safety net of terms and
conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce
participation; and
(d) the need to promote flexible modern work practices and the efficient
and productive performance of work; and
(e) the principle of equal remuneration for work of equal or comparable
value; and
(f) the likely impact of any exercise of modern award powers on business,
including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable
modern award system for Australia that avoids unnecessary overlap of modern
awards; and
(h) the likely impact of any exercise of modern award powers on
employment growth, inflation and the sustainability, performance and
competitiveness of the national economy.
This is the modern awards objective.
When does the modern awards objective apply?
(2) The modern awards objective applies to the performance or exercise of the
FWC’s modern award powers, which are:
(a) the FWC’s functions or powers under this Part; and
(b) the FWC’s functions or powers under Part 2 6, so far as they relate to
modern award minimum wages.
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Note: The FWC must also take into account the objects of this Act and any other
applicable provisions. For example, if the FWC is setting, varying or revoking modern
award minimum wages, the minimum wages objective also applies (see section 284).
[6] The Commission’s power with respect to achieving the modern awards objective is set
out in s.138 of the FW Act:
138 Achieving the modern awards objective
A modern award may include terms that it is permitted to include, and must include
terms that it is required to include, only to the extent necessary to achieve the modern
awards objective and (to the extent applicable) the minimum wages objective.
Summary of the SDA’s evidence and submissions
[7] The disputed substantive claim concerned an application by the SDA to make two
variations to cl.11 of the Pharmacy Award relating to full-time employees (item 5 in the list of
substantive variations earlier set out). The Draft Determination filed by the SDA in relation to
these variations can be found at Annexure B to this Decision.
[8] The SDA submitted that the approach required to be taken in the conduct of 4 yearly
reviews of modern awards is such that the Commission is required to “review each modern
award against the modern awards objective so as to ensure that modern awards, together
with the NES, ‘provide a fair and relevant minimum safety net of terms and conditions’,
taking into account the considerations set out in s 134(1)(a)-(h) of the Act.”1
[9] It was submitted that the considerations in s.134 of the Act are broad,2 and must be
considered in the context of the award that is the subject of the review.3
[10] The general approach to the review of modern awards was set out by the Full Bench in
4 Yearly Review of Modern Award – Preliminary Jurisdictional Issues (the Preliminary
Jurisdictional Decision):4
“[23] The Commission is obliged to ensure that modern awards, together with the
NES, provide a fair and relevant minimum safety net taking into account, among other
things, the need to ensure a ‘stable’ modern award system (s.134(1)(g)). The need for
a ‘stable’ modern award system suggests that a party seeking to vary a modern award
in the context of the Review must advance a merit argument in support of the proposed
variation. The extent of such an argument will depend on the circumstances. We agree
with ABI’s submission that some proposed changes may be self evident and can be
determined with little formality. However, where a significant change is proposed it
must be supported by a submission which addresses the relevant legislative
provisions and be accompanied by probative evidence properly directed to
demonstrating the facts supporting the proposed variation.
[24] In conducting the Review the Commission will also have regard to the historical
context applicable to each modern award. Awards made as a result of the award
modernisation process conducted by the former Australian Industrial Relations
Commission (the AIRC) under Part 10A of the Workplace Relations Act 1996 (Cth)
were deemed to be modern awards for the purposes of the FW Act (see Item 4 of
[2017] FWCFB 3540
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Schedule 5 of the Transitional Act). Implicit in this is a legislative acceptance that at
the time they were made the modern awards now being reviewed were consistent with
the modern awards objective. The considerations specified in the legislative test
applied by the AIRC in the Part 10A process is, in a number of important respects,
identical or similar to the modern awards objective in s.134 of the FW Act. In the
Review the Commission will proceed on the basis that prima facie the modern award
being reviewed achieved the modern awards objective at the time that it was made.
…
[27] These policy considerations tell strongly against the proposition that the Review
should proceed in isolation unencumbered by previous Commission decisions. In
conducting the Review it is appropriate that the Commission take into account
previous decisions relevant to any contested issue. The particular context in which
those decisions were made will also need to be considered. Previous Full Bench
decisions should generally be followed, in the absence of cogent reasons for not doing
so.” [Emphasis added]
[11] The first variation sought to amend cl.11 of the Award was to require employers to
guarantee full-time employees at least four hours’ work when allocating shifts (the Shift
Length Variation).
[12] Relevantly, cl.11 of the Pharmacy Award provides:
11. Full-time employees
A full-time employee is an employee who is engaged to work an average of 38 hours
per week.
[13] The SDA submitted that the Pharmacy Award currently contains provisions relating to
minimum shifts for part-time and casual employees; however no such provisions exist for
full-time employees.
[14] Accordingly, it was submitted that the changes sought by the SDA to the Pharmacy
Award were “underpinned by a cogent merit argument supporting the proposed variations.”5
[15] The second variation would require employers of prospective full-time employees to
enter into a written agreement with that employee at the time of their engagement, affording
them a regular pattern of work, and providing that the pattern may only be varied by
agreement (the Terms of Engagement Variation).
[16] The SDA submitted that there is a history of such provisions in pre-reform Awards;
however particular consideration was not given to these provisions in the making of the
Pharmacy Award.
[17] It was submitted that the variations sought were, “uncontroversial and self-evident,
and achieve the modern awards objective of providing a fair and relevant minimum safety net
of terms and conditions, taking into account: (a) relative living standards and the needs of the
low paid; and (b) the need to ensure a simple, easy to understand, stable and sustainable
modern award system…. (c) the need to promote social inclusion through increased
workforce participation.”6 The SDA did not file any evidence in support of the variations
sought.
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[18] The SDA tendered 11 pre-reform awards that purported to demonstrate the history of
awards in the community pharmacy industry. It was submitted that six of the pre-reform
awards contained provisions relating to minimum shifts for full-time employees.
[19] Further, 10 of the pre-reform awards contained provisions relating to the establishment
and variation of the ordinary rostered working hours for full-time employees. It was therefore
submitted that such provisions were standard in pre-reform awards.
Shift Length Variation
[20] The SDA submitted that the Pharmacy Award provide for minimum daily engagement
periods for part-time and casual employees, however no such protections existed for full-time
employees.
[21] The SDA submitted that it would be “incongruous” to afford minimum shift
protections to part-time and casual employees, whilst failing to provide the same protections
to full-time employees.7 It submitted the inclusion of such a provision would correct this
“anomaly”.8
[22] It was submitted that the absence of these protections may result in a full-time
employee being rostered for “inappropriately” short shifts (for example, 30 minute shifts).9 It
was further submitted that such an arrangement would be “at odds” with cl.25 of the Award:
25. Hours of work
25.1 This clause does not operate to limit, increase or in any way alter the trading
hours of any employer as determined by the relevant State or Territory legislation.
25.2 Ordinary hours
(a) Ordinary hours may be worked, within the following spread of hours:
Days Spread of Hours
Monday to Sunday 7.00 am – midnight
(b) Hours of work on any day will be continuous, except for rest pauses
and meal breaks and must not be more than 12 hours per day.
25.3 38 hour week rosters
A full-time employee will be rostered for an average of 38 hours per week,
worked in any of the following forms:
(a) 38 hours in one week; or
(b) 76 hours in two consecutive weeks.
25.4 Rostering—Permanent employees
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(a) The following roster requirements will apply to permanent employees:
(i) Ordinary hours will be rostered so as to provide an employee
with two consecutive days off each week or three consecutive
days off in a two week period.
(ii) Ordinary hours and any reasonable additional hours may not be
rostered over more than six consecutive days.
(iii) Ordinary hours may not be rostered over more than five days in
a week, provided that ordinary hours may be rostered on six
days in one week where ordinary hours are rostered on no more
than four days in the following week.
(iv) An employee who regularly works Sundays will be rostered so
as to have three consecutive days off each four weeks and the
consecutive days off will include Saturday and Sunday.
(b) A requirement will not apply where the employee requests in writing
and the employer agrees to other arrangements, which are to be
recorded in the time and wages records. It cannot be made a condition
of employment that an employee make such a request.
(c) An employee can terminate the agreement by giving four weeks’ notice
to the employer. The notice need not be given where the agreement
terminates on an agreed date or at the end of an agreed period. For the
avoidance of doubt this provision does not apply to part-time
employees’ agreed pattern of work under clause 12.2.
(d) The rostering provision of clause 25.4(a)(iv) does not apply to a part-
time employee whose agreed hours under clause 12.2(b) provides that
the employee will work on either or both Saturday and Sunday each
week and where the agreement provides that the employee will have at
least two consecutive days off work each week.
[23] It was conceded that, whilst cl.25 offers some protection, it does not prevent a full-
time employee from being rostered to work a shift of any particular length.10 The SDA
submitted that the appropriate shift length for full-time employees would be 4 hours, and that
such a variation would be self-evident and may be determined with little formality.
[24] It was submitted that the “most basic principle” to achieve a fair safety net is ensuring
that employees are paid appropriately. Accordingly, regard should be had to the “cost and
time” required to attend work, in considering whether an employee is appropriately
compensated for performing that work.11
[25] The SDA referred to the submissions of the ACTU in the part-time and casual
common issue proceedings, where it was submitted that, “the appropriate minimum safety net
entitlement is that an employee should, after accounting for travel, childcare and other costs,
earn at least one-fifth of the Newstart weekly amount being $56.33 per day.”12 It was
submitted that a full-time Pharmacy Assistant Level 1 must work for 3 hours to earn this
[2017] FWCFB 3540
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amount. It was further submitted the amount of compensation an employee receives for
working a shift, must be greater than if they did not work that shift. Accordingly, it was
submitted that the minimum shift for full-time employees should be four hours.
[26] Further, the SDA submitted that an inappropriately short shift may “impact an
employee’s ability to enjoy non-working time,”13 for example disrupting caring
responsibilities, attending appointments and recreational time.
[27] In summary, the SDA submitted that the inclusion of the Shift Length Variation in the
Pharmacy Award achieves the modern awards objective, having regard ss.134(1)(d),(e) and
(f) of the Act.
Terms of Engagement Variation
[28] The SDA submitted that the inclusion of a provision prescribing a regular pattern of
work for full-time employees is “essential to meeting the requirements of the Act; other
provisions contained in the Award; and in order to meet the modern awards objective and to
provide a fair and relevant safety net.”14
[29] It was submitted that the balance of pre-reform awards in the community pharmacy
industry contained provisions setting out a regular pattern of work and providing how that
pattern may be varied.
[30] The SDA submitted that there were several indicia of whether an employment
relationship was permanent or casual, including:
“…the number of hours worked each week, the expectation of continuity of
employment, the requirement to provide notice if an employee is absent or on leave
and whether there is a reasonable expectation that work will be available. Other key
factors include whether the employment pattern is regular, whether a roster system is
published in advance and whether you work to consistent starting and finishing
times.”15
[31] Accordingly, it was submitted that with the absence of such a provision in the
Pharmacy Award ensuring that full-time employees are guaranteed a regular pattern of work,
full-time employees may be treated similarly to casual employees with a minimum of 38
hours per week.
[32] Further, the SDA submitted that the absence of a provision relating to the variation of
working hours by agreement between an employee and employer is contradictory to the
requirements of s.145A of the Act and cl.8.2 of the Pharmacy Award.16 Section 145A of the
FW Act provides:
145A Consultation about changes to rosters or hours of work
(1) Without limiting paragraph 139(1)(j), a modern award must include a term
that:
(a) requires the employer to consult employees about a change to their
regular roster or ordinary hours of work; and
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(b) allows for the representation of those employees for the purposes of
that consultation.
(2) The term must require the employer:
(a) to provide information to the employees about the change; and
(b) to invite the employees to give their views about the impact of the
change (including any impact in relation to their family or caring
responsibilities); and
(c) to consider any views about the impact of the change that are given by
the employees.
[33] This provision is adopted in cl.8.2 of the Pharmacy Award:
8.2 Consultation about changes to rosters or hours of work
(a) Where an employer proposes to change an employee’s regular roster or
ordinary hours of work, the employer must consult with the employee
or employees affected and their representatives, if any, about the
proposed change.
(b) The employer must:
(i) provide to the employee or employees affected and their
representatives, if any, information about the proposed change
(for example, information about the nature of the change to the
employee’s regular roster or ordinary hours of work and when
that change is proposed to commence);
(ii) invite the employee or employees affected and their
representatives, if any, to give their views about the impact of
the proposed change (including any impact in relation to their
family or caring responsibilities); and
(iii) give consideration to any views about the impact of the
proposed change that are given by the employee or employees
concerned and/or their representatives.
(c) The requirement to consult under this clause does not apply where an
employee has irregular, sporadic or unpredictable working hours.
(d) These provisions are to be read in conjunction with other award
provisions concerning the scheduling of work and notice requirements.
[34] It was submitted that the consultation requirements in the FW Act and the Pharmacy
Award necessitate the inclusion of a provision relating to how rosters may be formulated (in
the SDA’s submission, this should be at the time of engagement) and varied.
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[35] The SDA submitted that the purpose of the 2013 amendments to the FW Act that
added s.145A were to:
“…ensure that an employee’s family and caring responsibilities are taken into account
by their employer when changes are made to their working arrangements. This
amendment demonstrates that the intention of the Act is to provide modern awards
which ensure that rostering and working hours are structured in such a way as to
support working families to achieve the necessary arrangements in order to meet
family and caring responsibilities.”17
[36] It was submitted that the variation was important to ensure that working hours are
stable, to enable employees to manage family and caring responsibilities. Further, the SDA
submitted that regular working hours should already be common practice, and as such the
variation would not cause any significant change. It was submitted that the variation was
necessary to achieve the modern awards objective, having regard to ss.134(1)(g), (h) and (i) of
the FW Act.
[37] The SDA submitted that the variations sought are, “uncontroversial, simple and self-
evident.”18 It submitted that the merits supporting the variation have been made out, satisfying
the requirements for the Commission to make the variation as sought.
Summary of the PGA’s Submissions
[38] The PGA submitted that the variations sought by the SDA to the Pharmacy Award
were “not insignificant” and would result in more onerous obligations placed on employers,
than in respect to the obligations to part-time and casual employees.19
[39] The PGA submitted that, pursuant to s.138 of the Act, the Commission may “only
include terms in a modern award to the extent necessary to create a ‘fair and relevant safety
net’.”20
[40] The PGA also relied on the following passage in the Preliminary Jurisdictional
Decision:21
“[60] On the basis of the foregoing we would make the following general observations
about the Review:
…
3. The Review is broader in scope than the Transitional Review of modern
awards completed in 2013. The Commission is obliged to ensure that modern
awards, together with the NES, provide a fair and relevant minimum safety net
taking into account, among other things, the need to ensure a ‘stable’ modern
award system (s.134(1)(g)). The need for a ‘stable’ modern award system
suggests that a party seeking to vary a modern award in the context of the
Review must advance a merit argument in support of the proposed
variation. The extent of such an argument will depend on the circumstances.
Some proposed changes may be self evident and can be determined with little
formality. However, where a significant change is proposed it must be
supported by a submission which addresses the relevant legislative
provisions and be accompanied by probative evidence properly directed to
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demonstrating the facts supporting the proposed variation. In conducting
the Review the Commission will also have regard to the historical context
applicable to each modern award and will take into account previous decisions
relevant to any contested issue. The particular context in which those decisions
were made will also need to be considered. Previous Full Bench decisions
should generally be followed, in the absence of cogent reasons for not doing
so. The Commission will proceed on the basis that prima facie the modern
award being reviewed achieved the modern awards objective at the time that it
was made…” [Emphasis added]
[41] The PGA submitted that “any significant change to the PI Award sought by the SDA
must be supported by a submission which addresses the relevant legislative framework and
probative evidence properly directed to demonstrating the facts supporting the proposed
variation”.22
Shift Length Variation
[42] The PGA conceded that the Pharmacy Award does not currently contain provisions
affording full-time employees a minimum shift engagement, however notes that the minimum
shift engagement for part-time and casual employees is 3 hours, rather than 4 hours as sought
by the SDA. Accordingly, it was submitted that if the Commission was minded to make such
a variation, that the minimum engagement for full-time employees should be 3 hours.
[43] The PGA rejected the SDA’s reliance on the submissions of the ACTU in the part-
time and casual common issues proceedings, contending that there was no evidence advanced
in support of that submission. Furthermore, there was no evidence to suggest that such a
submission was also applicable to the Community Pharmacy Industry.
[44] It was also submitted that this was an irrelevant consideration, as the introduction of
such a provision would not affect the remuneration payable to full-time employees, or their
allocated working hours.
[45] The PGA submitted that the Pharmacy Award presently contains significant
protections for full-time employees. It was submitted that the manner in which full-time
employees may be rostered was dealt with “extensively” in cl.25 of the Pharmacy Award, as
set out previously. In particular, it was submitted that:
“…an employee may only be rostered to perform ordinary hours in one continuous
period (except for rest pauses) between the hours or 7:00am and midnight. There are
further restrictions on the method of rostering being that:
(a) Ordinary hours will be rostered so as to provide an employee with two consecutive
days off each week or three consecutive days off in a two week period;
(b) Ordinary hours and any reasonable additional hours may not be rostered over
more than six consecutive days;
(c) Ordinary hours may not be rostered over more than five days in a week, provided
that ordinary hours may be rostered on six days in one week where ordinary hours are
rostered on no more than four days in the following week; and
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(d) An employee who regularly works Sundays will be rostered so as to have three
consecutive days off each four weeks and the consecutive days off will include
Saturday and Sunday.”23
[46] Accordingly, it was submitted that given the significant protections in the Pharmacy
Award for full-time employees, and the absence of probative evidence to support to the
variations, “the Commission cannot be satisfied that the change is necessary to achieve the
modern awards objective.”24
Terms of Engagement Variation
[47] The PGA submitted that, whilst there was a history of including such a provision in
pre-reform Awards for full-time employees, the prima facie position as per the Preliminary
Jurisdictional Decision,25 was that the modern awards objective was met at the time the
Award was made.
[48] Further, the PGA rejected the submission that full-time employees may be treated as
similar to casual employees with a minimum of 38 hours a week, as the hours worked by full-
time employees are guaranteed and are accompanied by other significant protections.
[49] Accordingly, it was submitted that in the absence of evidence to support the variation
other than inclusion of a similar provision in historical awards, the Commission cannot be
satisfied that it is necessary to achieve the modern awards objective.
Summary of ABI’s and the NSWBC’s Submissions
[50] The ABI and NSWBC filed joint submissions in opposition to the variation sought by
the SDA.
[51] The ABI and NSWBC submitted that the changes proposed by the SDA are
substantive in nature and attract the requirements observed by the Full Bench in the
Preliminary Jurisdictional Decision,26 as outlined previously.
[52] It was submitted that, accordingly the variations sought must be supported by both
submissions and probative evidence. It was submitted that the SDA had not advanced any
evidence in support of its submissions. In particular, the ABI and NSWBC identified that no
evidence in relation to the following issues:
“(a) how full time working hours are structured by employers;
(b) how full time working hours are averaged by employers;
(c) the duration and incidence of short shifts;
(d) to the extent that there is an incidence of short shifts for full-time employees in
the industry, the extent of that practice; or
(e) the incidence or extent of employers varying working hours or patterns of work
of full-time employees.” 27
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[53] Further, it was submitted that the variations were unnecessary given the protections
already contained within the Pharmacy Award. The ABI and NSWBC noted that cl.10
requires employers to inform employees of their terms of engagement, including whether they
will be full-time, part-time or casual employees; cl.11 guarantees full-time employees 38
hours of work per week; and cl.25 prescribes how those hours may be arranged.
Shift Length Variation
[54] The ABI and NSWBC submitted that the protections in the Pharmacy Award for part-
time and casual employees exist, as employees engaged on that basis typically work less than
38 hours a week and are more likely to be assigned shorter shifts. There is no such concern for
full-time employees as they are guaranteed an average of 38 hours per week of work.
[55] It was submitted that any considerations with respect to the time and cost required to
attend work for a short shift were irrelevant, given that, “the employee’s income over the pay
period remains the same, and the likelihood of working any more than one short shift in a
roster period is minimal,”28 having regard to the requirement for a full-time employee to be
rostered for 38 hours per week. It was submitted that it is appropriate to consider the entire
work week, rather than one day in isolation.
[56] The SDA’s submission that short shifts may impact on an employee’s ability to enjoy
non-working time was rejected by the ABI and NSWBC for similar reasons. Whilst a full-
time employee may work a short shift on one day, the total hours they may work during that
week does not change.
Terms of Engagement Variation
[57] The ABI and NSWBC submitted that the SDA incorrectly referred to the common law
test for determining whether an employee was engaged on a full-time basis. Rather, whether
an employee was engaged on a full-time basis may be determined by reference to cl.11 of the
Pharmacy Award, that is, whether the employee is engaged to work for 38 hours per week.
[58] It was further submitted that there was nothing in cl.8.2 of the Pharmacy Award that
requires an employee to agree to any changes to their rostered hours of work, merely that
consultation must occur.
[59] The ABI and NSWBC submitted that there are no difficulties with how the Pharmacy
Award currently operates and that the change is not necessary to achieve the modern awards
objective.
Consideration
[60] The SDA sought to vary the Pharmacy Award by inserting two provisions relating to
full-time employees. The SDA argued that both variations were “uncontroversial” and “self-
evident” and accordingly did not adduce any evidence in support of the variations.
[61] The extent of the evidence which might be required to support any proposed variation
to a modern award was discussed in the Preliminary Jurisdictional Decision as follows:
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“The extent of such an argument will depend on the circumstances. We agree with
ABI’s submission that some proposed changes may be self evident and can be
determined with little formality. However, where a significant change is proposed it
must be supported by a submission which addresses the relevant legislative provisions
and be accompanied by probative evidence properly directed to demonstrating the facts
supporting the proposed variation.”29
[62] In relation to the Shift Length Variation, we do not agree that it is self-evident that a
modern award must contain provisions setting a minimum shift length for full-time employees
merely because such provisions exist for casual and part-time provisions in the same award.
The rationale for such provisions is generally to ensure that an employee receives a
reasonable amount of work and income for each attendance at the workplace to justify the
expense and time associated with that attendance, and thus to avoid employee exploitation.
However that rationale applies itself with different degrees of force to casual, part-time and
full-time employment. The issue is at its most acute with casual employees, who have no
guarantee of ongoing work and income, and are accordingly most vulnerable to exploitation
in the shape of accepting very short shifts in the hope of being allocated future work. The
position is less acute with part-time employees, who at least have a minimum weekly
guarantee of hours, although the capacity for exploitation still exists where the minimum
guarantee is a low one and the employee hopes to supplement his or her income with
additional hours. In relation to full-time employees, the rationale has much less force. A full-
time employee is guaranteed 38 hours per week (sometimes averaged over the course of a
roster cycle), so the employee has a secure income, and the costs involved in attending work
will tend to average themselves out over the course of the week (or roster cycle), with any
shorter shifts having to be balanced by longer shifts in order that the required 38 hours’ is
made up. Therefore it cannot be the case that minimum shift lengths for full-time employees
are automatically necessary.
[63] There may be nonetheless circumstances which require a modern award to contain
minimum shift lengths for full-time employees in order to meet the modern awards objective.
However there is no evidence before us to demonstrate that any such circumstances exist in
relation to the Pharmacy Award. There was no evidence that any employees under this award
are working under rosters which regularly require the working of very short shifts in a way
which exploits or grossly inconveniences such employees. Further the requirements in clause
25 concerning the rostering of full-time hours place significant practical constraints on the
extent to which full-time employees may be rostered onto short shifts. Accordingly we are not
satisfied that the Shift Length Variation is necessary to meet the modern awards objective.
[64] In relation to the Terms of Engagement Variation, we again do not consider that it is
self-evident that the new provision which is sought is necessary to meet the modern awards
objective. A provision of the type claimed by the SDA is commonly found in modern awards
in relation to part-time employment. However the rationale for this is that part-time
employment is most often taken up by persons who have other major commitments in their
lives such as family responsibilities, study or secondary employment, and require certainty as
to the pattern of their working hours in order that they can meet those other commitments.
Again, that rationale applies itself in an entirely different way to full-time employment. While
modern awards (unlike the Pharmacy Award) usually contain provisions concerning the
notice to be provided to employees of rosters and roster changes, they do not generally
contain provisions which prohibit the alteration of working hours except with the agreement
of the employee. There would need to be probative evidence demonstrating the need for a
[2017] FWCFB 3540
14
provision of this nature in order for the Commission to be satisfied that it was necessary to
meet the modern awards objective. No such evidence was forthcoming, and accordingly we
are not satisfied that the Terms of Engagement Variation is necessary to meet the modern
awards objective.
Conclusion
[65] Accordingly for the aforementioned reasons, taking all of these matters into account,
the SDA’s application in relation to the Shift Length Variation and Terms of Engagement
Variation in cl.11 (as set out in Annexure B) is dismissed.
[66] In relation to the other variations sought by the interested parties by consent (as set out
in Annexure A), those variations are agreed, straightforward and uncontroversial. The
interested parties made submissions at the hearing on 31 March 2017 in support of the
variations.30
[67] Having regard to the requirements set out in s.134(1) of the Act, and the consent
submissions of the interested parties to support the making of the variations in Annexure A, as
stated, the variations sought are necessary to achieve the modern awards objective.
[68] These variations are therefore, considered appropriate. Determinations to give effect to
the variations will separately be issued. The variations will take effect on 7 August 2017.
VICE PRESIDENT
Appearances:
Ms K Biddlestone on behalf of the Shop, Distributive and Allied Employees Association and
the Association of Professional Engineers, Scientists and Managers, Australia.
Ms J Light, Mr S Harris and Ms C Lombard on behalf of the Pharmacy Guild of Australia.
Ms M Chan on behalf of the Australian Business Industrial and the New South Wales
Business Chamber.
Ms R Liebhaber on behalf of the Health Services Union.
Hearing details:
2017.
Sydney:
31 March.
OF THE FAIR WORK MISSION THE
[2017] FWCFB 3540
15
Printed by authority of the Commonwealth Government Printer
Price code G, PR594267
1 Submissions of the SDA dated 17 February 2017 at [5].
2 National Retailers Association v Fair Work Commission (2014) 225 FCR 154 [109].
3 Four Yearly Review of Modern Awards – Annual Leave [2015] FWCFB 3406 [19] – [20].
4 [2014] FWCFB 1788.
5 Submissions of the SDA dated 17 February 2017 at [9].
6 Ibid at [17].
7 Ibid at [25].
8 Transcript dated 31 March 2017 at PN44.
9 Submissions of the SDA dated 17 February 2017 at [26].
10 Transcript dated 31 March 2017 at PN73.
11 Submissions of the SDA dated 17 February 2017 at [28].
12 Ibid at [31].
13 Ibid at [33].
14 Ibid at [36].
15 Ibid at [39].
16 Ibid at [43] – [44], [51].
17 Ibid at [53]; see also Explanatory Memorandum to the Fair Work Amendment Act 2013 at 43 – 45.
18 Transcript dated 31 March 2017 at PN47.
19 PGA’s Submissions in Reply – Substantive Claims dated 24 March 2017 at [5].
20 Ibid at [8].
21 [2014] FWCFB 1788.
22 PGA’s Submissions in Reply – Substantive Claims dated 24 March 2017 at [10].
23 Ibid at [22].
24 Ibid at [25].
25 [2017] FWCFB 1788 at [111].
26 [2014] FWCFB 1788 at [23].
27 ABI’s and NSWBC’s Submissions in Reply dated 29 Match 2017 at [3.4].
28 Ibid at [5.7].
29 4 Yearly Review of Modern Awards: Preliminary Jurisdictional Issues [2014] FWCFB 1788 at [23].
30 Ibid at PN32, PN38 – PN39.
[2017] FWCFB 3540
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Annexure A
FAIR WORK COMMISSION DRAFT DETERMINATION Fair Work Act 2009 Four Yearly Review of Modern Awards (AM2014/197) Casual Employment (AM2014/196) Part-time Employment PHARMACY INDUSTRY AWARD 2010 MA000012
The Pharmacy Industry Award 2010 is varied as follows: 1. By inserting a new subclause 10.12 as follows 10.12 School students The minimum engagement period for a part-time employee will be two hours if all of the following circumstances apply: (a) the employee is a full-time secondary school student; and (b) the employee is engaged to work between the hours of 3.00pm and 6.30pm on a day which they are required to attend school; and (c) the employee agrees to work, and a parent or guardian of the employee agrees to allow the employee to work, a shorter period than three hours; and
(d) there is at least one employee who is classified at grade 3 or higher engaged over the same period to supervise the school student employee 2. By inserting a new subclause 11.7 as follows 11.7 School Students The minimum engagement period for an employee engaged on a casual basis will be two hours if all of the following circumstances apply: (a) the employee is a full-time secondary school student; and (b) the employee is engaged to work between the hours of 3.00pm and 6.30pm on a day which they are required to attend school; and (c) the employee agrees to work, and a parent or guardian of the employee agrees to allow the
employee to work, a shorter period than three hours; and (d) there is at least one employee who is classified at grade 3 or higher engaged over the same period to supervise the school student employee
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MA000012 PRXXXXXX FAIR WORK COMMISSION DRAFT DETERMINATION Fair Work Act 2009 s156 - 4 Yearly reviews of modern awards
4 yearly review of modern awards (AM2014/197) PHARMACY INDUSTRY AWARD 2010 MA000012 Pharmacy operations VICE PRESIDENT HATCHER MELBOURNE, DD MM 2017 Review of modern awards to be conducted.
A. Further to the Decision and Reasons for Decision DecisionRef in FileNo, it is determined pursuant to section 156(2)(b)(i) of the Fair Work Act 2009, that the Pharmacy Industry Award 2010 be varied as follows. 1. Delete Clause 16.2 of the Exposure Draft issued by the Commission on 20 January 2017 and insert in lieu thereof the following: 16.2 Junior wages (Pharmacy Assistants Level 1 and 2 only) An employer must pay an employee, who is classified as a Level 1 or Level 2 Pharmacy Assistant and aged as specified in column 1 of Table 4 - Junior wages (Pharmacy Assistants
Level 1 and 2 only), at least at the percentage specified in column 2 of the minimum wage that would otherwise be applicable under Table 3 - Minimum wages:
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Table 4 - Junior wages (Pharmacy Assistants Level 1 and 2 only) Column 1 Column 2 Age % of minimum wage Under 16 years of age 45 16 years of age 50 17 years of age 60
18 years of age 70 19 years of age 80 20 years of age 90 B. This determination comes into force on and from DD MM 2017. PRESIDING MEMBER
[2017] FWCFB 3540
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A. Further to the Decision and Reasons for Decision DecisionRef in FileNo, it is determined pursuant to section 156(2)(b)(i) of the Fair Work Act 2009, that the Pharmacy Industry Award 2010 be varied as follows. 1. Delete Clause 20 of the Exposure Draft issued by the Commission on 20 January 2017 and insert in lieu thereof the following: 20. Overtime NOTE: An employee may refuse to work additional hours if they are unreasonable as set out in section 62 of the Act.
20.1 Application of overtime An employer must pay all employees at the overtime rate, as specified in clause 20.3, for any hours worked at the direction of the employer: (a) in excess of 38 hours per week (or 76 ordinary hours over two consecutive weeks); or
[2017] FWCFB 3540
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(b) in excess of 12 hours per day as specified in clause 13.3 (maximum daily hours); or (c) that are not continuous, except for rest breaks and meal breaks as specified in clause 15-Breaks; or (d) between midnight and 7.00 am; or (e) outside the rostering arrangements as specified in clause 14. 20.2 A part-time employee will be paid at the overtime rate for each hour worked in of th of be om der claus
10.4 and 10.12. 20.3 Payment of overtime (a) An employer must pay an employee for all overtime worked as prescribed in clause 20.1 and 20.2 the overtime rate specified in column 2 of Table 5 in accordance with when the overtime was worked as specified in column 1 of that table. (b) The overtime rate specified in column 2 of Table 5 must be applied to the applicable minimum wage for the employee classification in accordance with clause 16 - Minimum wages.
Table 5-Overtime rates Column 1 Column 2 For overtime worked on Overtime rate Monday to Saturday-first 2 150% hours Monday to Saturday-after 2 200% hours Sunday-all day 200% Public holiday-all day 250% NOTE: Schedule B - Summary of Hourly Rates of Pay sets out the overtime rate hourly wage for all employee classifications according to when overtime is worked.
(c) Casual loading is not payable on overtime worked by a casual employee. B. This determination comes into force on and from DD MM 2017. PRESIDING MEMBER
[2017] FWCFB 3540
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FAIR WORK COMMISSION DRAFT DETERMINATION Fair Work Act 2009 Four Yearly Review of Modern Awards (AM2014/209) (AM2016/15) Plain Language Redrafting PHARMACY INDUSTRY AWARD 2010 MA000012
The Pharmacy Industry Award 2010 is varied as follows: 1. By amending clause 17 as follows 17 Annualised Salary (Pharmacist and Pharmacy Assistant level 4 only) 17.1 A pharmacist or pharmacy assistant level 4 may agree in writing with their employer to be paid an annualised salary that satisfies this award in relation to all or any of the following matters: (a) overtime; (b) penalty rates; (c) payments for public holidays;
(d) payments for annual leave; (e) annual leave loading; (f) meal allowances; (g) on premise meal allowances. 17.2 A pharmacist or pharmacy assistant level 4 may be represented by a union or other representative nominated by them in any discussion about the making of an agreement under clause 17.1. 17.3 An annualised salary must not result in an employee being paid less over a year (or, if the employment is terminated before a year is completed, over the period of that employment) than would have been the case if an annualised salary had not been agreed. 17.4 The employer must keep a copy of any agreement under clause 17.1 and give another copy to the
employee. 17.5 The employer must keep a record of hours worked each day by a pharmacist who has entered into an agreement under clause 17.1 showing the times at which the employee started and finished work that day. 17.6 A record mentioned in clause 17.1 must be: (a) countersigned weekly by the employee; and (b) kept at the place of employment for at least 6 years.
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Annexure B
ATTACHMENT A MA000012 PRXXXXXX FAIR WORK COMMISSION DRAFT DETERMINATION
Fair Work Act 2009 s156 - 4 Yearly reviews of modern awards 4 yearly review of modern awards (AM2014/197) PHARMACY INDUSTRY AWARD 2010 MA000012 Pharmacy operations
PRESIDENT ROSS MELBOURNE, DD MM 2016 Review of modern awards to be conducted. A. Further to the Decision and Reasons for Decision DecisionRef in FileNo, it is determined pursuant to section 156(2)(b)(i) of the Fair Work Act 2009, that the Pharmacy Industry Award 2010 be varied as follows. 1 Delete Clause 9 of the Exposure Draft issued by the Commission on 20 January 2017
and insert in lieu thereof the following: 9 Full-time employment 9.1 An employee who is engaged to work 38 ordinary hours per week (or 76 ordinary hours over 2 consecutive weeks) is a full time employee.
[2017] FWCFB 3540
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9.2 At the time of engaging a full-time employee, the employer must agree in writing with the employee to all of the following: (a) the number of hours to be worked each day; and (b) the days of the week on which the employee will work; and (c) the times at which the employee will start and finish work each day;
and (d) when meal breaks may be taken and their duration. 9.3 £ An employer must roster a full-time employee on any shift for a minimum of 4 consecutive hours. 9.4 The employer must keep a copy of any agreement under clause 9.2 or variation of it, under clause 9.5 and give another copy to the employee. 9.5 The roster of a full-time employee may be varied: (a) by the employer giving the employee 7 days, or in an emergency 48 hours, written notice of the change; or (h) tin e by the et and vee by 1al agreement
9.6 The roster of a full-time employee must not be: (a) subject to frequent variation from pay period to pay period; or (b) varied so as to avoid any award entitlement. B. This determination comes into force on and from DD MM 2017. PRESIDING MEMBER
