PN3106

VICE PRESIDENT HATCHER: Mr Irving.

PN3107

MR IRVING: Thank you, your Honour. We have a document. I'm not going to read this document. I'm going to highlight parts of the submissions which are significant. There are some points which have been made here which have been made in earlier iterations and I shan't simply re‑state them.

PN3108

I apologise that it was produced in some haste and there may be typographical and grammatical errors within it and sorry to the Commission for those. I want to start by mentioning a few things about the legislative framework and then work through largely in the sequence that's set out in the document.

PN3109

At the core of this case though, it's a case about the roles and responsibilities, the duties and the conditions of work under which pharmacists perform work. We've had a professor learned in the field, Professor Krass, who's done a report. She's brought her expertise to bear on the issue of what change has occurred. Her conclusion is that the roles and responsibilities of community pharmacists have expanded over the last 20 years with movement away from dispensing orientated roles to increasing CPS provision.

PN3110

When one goes through the CBAs over the course of the last 30 years, each of them contain objects and they're all in evidence, and I address this later in more detail, but what one finds is that in 2000 the objects change. Each of them are a bit like EBAs bizarrely in that the government is promising funding in exchange for some structural reform.

PN3111

The first round of funding was structural reform about amalgamations of pharmacies and the second round of funding was structural reform about location of pharmacies and the third round of funding was structural reform for expanding the community pharmacy's professional roles, okay. That's what happened in 2000. That's what created, and they were given $400 million to do so, and then to expand those roles.

PN3112

The PGA negotiated it. Their members got $400 million to expand the professional roles of community pharmacists. They got $500 million in the next round and in the most recent round, they got $1.2 billion dollars for those expanded professional services and they say that there's been no expansion.

PN3113

The PGA itself has, in various documents at various times, acknowledged that it has. For example, in a document behind - in exhibit 19, they say "Since well before the publication of the PGA's community pharmacy roadmap in 2010, the guild has been actively working on expanding pharmacist's professional activities".

PN3114

VICE PRESIDENT HATCHER: Sorry, what are you reading from?

PN3115

MR IRVING: From the three quotes at the foot of the first page. Indeed, I'll take you to it later but in the course of making submissions for more funding in the remuneration round, the PGA made submissions setting out all of their activities, the activities of - - -

PN3116

VICE PRESIDENT HATCHER: Where was that quote from?

PN3117

MR IRVING: Sorry?

PN3118

VICE PRESIDENT HATCHER: Where is that quote sourced from?

PN3119

MR IRVING: That quote is sourced from a PGA publication which is in exhibit 19 behind tab 19. Let me then briefly outline the legislative framework. It was the subject of a submission and pages - first page and a half, of these submissions replicate the submission earlier made. I shan't read them but I do want to focus attention on a couple of things.

PN3120

The first is the work value reasons on page two. Ultimately the question for the Commission is what's a fair and relevant rate and whether or not there are reasons justifying the amount related to any of the following, the nature of the work, the level of skill or responsibility of the conditions under which work is done.

PN3121

For the reasons I've set out there, those phrases need to be understood by reference to the historical use of the work value test, which first appeared I � well, there's a long history of where it's appeared. One of the things that does not occur in the current legislation which occurred in the old national wage case principles is what the legislature did not say was there is a strict test, which is something that appears in every iteration of the wage case principles, that there needs to be a requisite significant net addition and, indeed, that one is measuring changes.

PN3122

On the evidence, we would clear any bar of a strict test or significant net additional measuring changes but one needs to be careful to ensure that one applies the appropriate statutory test and the appropriate statutory test doesn't have, as elements, those three historical requirements. It's a lower bar, it's a statutorily lower bar, and we shouldn't import into it things that we've understood for decades.

PN3123

VICE PRESIDENT HATCHER: Sorry, can you remind me, what was the basis of the 1998 date in point that everyone is proceeding upon?

PN3124

MR IRVING: There's - - -

PN3125

VICE PRESIDENT HATCHER: I had some trouble with identifying precisely what that was.

PN3126

MR IRVING: Yes. There is a heading on page four wherein lies the magic of 1998.

PN3127

VICE PRESIDENT HATCHER: I see, yes, all right.

PN3128

MR IRVING: The essence of the 1998 award variation was this, Commissioner Hingley made a decision in which he set the relativities of the various classifications that now appear in the award, so the various classifications. There was an additional classification inserted in about 2003, and that's dealt with in the initial outline of submissions which sets out the award history in more detail. When one goes to Commissioner Hingley's decision - - -

PN3129

VICE PRESIDENT HATCHER: We got that somewhere?

PN3130

MR IRVING: My friend might have.

PN3131

MR SECK: I was going to hand up a bundle of cases but we have Commissioner Hingley's decision so we can hand up copies for the Bench, if it assists.

PN3132

VICE PRESIDENT HATCHER: Thank you. This was an award simplification process decision was it?

PN3133

MR IRVING: Yes. As my junior attends to that, could I perhaps come back to that in a couple of minutes or ‑ perhaps if I could just deal briefly with the modern award objective and the conditions set out in it. Ultimately, well to effectively exercise the power we're asking you to exercise, one needs to meet the modern award's objective, which is set out at section 134.

PN3134

It sets out a series of things the Commission takes into account. They are not the only things that are taken into account. They're not of equal weight, they're not of equal significance. In some cases, some of the matters listed in it will be of great significance and some little significance. Ultimately, the question the Commission is addressing in the modern award objective is what is fair and relevant in minimum safety net of terms and conditions.

PN3135

It takes into account the usual range and the wide range of matters and not just those set out. I addressed in the opening some of the requirements of those which I've set out in page three in the first couple of dot points about relative living standards and the needs of the low paid and the need to encourage collective bargaining.

PN3136

On the aspect of collective bargaining, there is a distortion in this market. It's not an ordinary labour market. There's a couple of reasons there's a distortion. The first is that there are the location rules and the ownership rules. The ownership rules prevent, in many ways, the aggregation of capital in its usual form of the BOOT, the massive chemists and the small and the big operators, et cetera.

PN3137

What is forced to occur is that there are lots of small owners, some operating under franchises but lots of small owners. The average size of employment, in terms of pharmacists, is in each pharmacy there's 1.5 pharmacists, that's Professor Krass' evidence. One doesn't � small businesses with a tiny number of employees, classic examples are places where enterprise bargains are rarely struck, and the enterprise bargain that has been struck is, with national pharmacies, a friendly society and friendly societies are the exception to the rule that you need to have a pharmacy owner.

PN3138

The second distortion, as Professor Clarke explains, is in relation to the location rules and it limits the ability of � well first, one of the effects of these rules is that there's been a set number of pharmacies in Australia since the 1960s. If you look at the stats from the 1960s, as Professor Clarke does, as is put, you've just got this set number of 5500 as it were back there and there's 5500 now and the employer goes and negotiates in the CBAs and says "No more".

PN3139

They've got a monopoly with a set number of employers which means that there are no new employers entering the field. You can buy and sell the set number but there are no new employers entering the field and thereby no new people coming and bidding for labour. No new people coming and saying "Well we want to engage these people" and thereby, by demand, affecting the price of labour.

PN3140

There may be wider public interest concerns of having these distortions and they've been looked at by government reports, et cetera, as to why they should be exceptions to the ordinary competition rules and monopoly provisions but we don't seek to disturb any of them, of course, but what we do say is that it's in this unusual context that collective bargaining has failed and the notion that this application would have some pernicious effect on collective bargaining seems to look farfetched.

PN3141

You've been provided a copy of the 1999 award simplification decision. There was no consideration of ‑ there was no evidence led about work value, there was no, on my reading of this and the earlier decision, there weren't submissions about work value. It wasn't a work value case of any stretch.

PN3142

Rather, what was considered in this decision and the earlier decision is simply that it meets the current principles of the Act and the current - - -

PN3143

VICE PRESIDENT HATCHER: Sorry, but the decision we've handed up, I just want to check this is the right one, is about the Victorian Pharmacy Assistants Award. Is that the right decision?

PN3144

MR IRVING: No. I think it might be the incorrect decision. Sorry, in the initial � sorry. I know it was addressed in more detail in the initial submissions supplied to the Commission. Perhaps we turn to that. There's a history of the award which sets out the 1998 decision.

PN3145

MR SECK: I think what might have been handed up to the Bench, and I apologise for, this might be � there a number of Commissioner Hingley decisions. I think the one I've handed up is the one, in fact, relating to pharmacy assistants. There's another one, and I'm not sure we have a copy of it and it's my fault, is the award simplification of the Community Pharmacy Award 1996.

PN3146

It's print number Q2258. I think that's my fault for not giving the right one. We will arrange for a copy to be provided of that decision and can I just note that the work value assessment was, in fact, in 1996 and simply adopted in 1998 and I'll take the Bench to the relevant case law on this when I come to my - - -

PN3147

VICE PRESIDENT HATCHER: What's the 1996 decision then?

PN3148

MR SECK: The 1996 decision we can hand up, your Honour, and I don't want to interrupt my learned friend too much but this is a decision of Commissioner O'Shea of 6 March 1996 in respect of the Community Pharmacy Victoria Interim Award 1995 and as the Bench will recall, there was a referral of the industrial relations power by Victoria to the Commonwealth which occurred in the early 1990s and what Commissioner O'Shea undertook was the making of a new federal award applying on a common rule basis to Victorian pharmacists.

PN3149

The award which was made was on an interim basis initially but as you can tell from the key words at the front, the parties were unable to agree on some key issues, including the classification structure, pay and relativities and what that led to was submissions being made by the parties, and I'll take the Bench through this shortly, as to the appropriate classification structure and the benchmarking, in particular, and the Bench would have read this, against the Metal Industry Award, in particular C10 and the professional scientists.

PN3150

It was the subject of contest and it was the subject of submissions and there were reasons given by Commissioner O'Shea as to how he determined the classifications and it's basically on external benchmarking against the Metal Industry Award. The Victorian award then leads to the making of a national award which occurs in 1998 and then the national award, around the same time, is simplified in accordance with the requirements which existed at the time.

PN3151

That's the history as it evolved. The reason why 1998 is used is that that's the national award which is the predecessor to the current award and so that's the historical lineage in terms of work value. In truth, it occurred in 1996 but in terms of being rolled out to the entire country, it occurred in 1998 under the national award.

PN3152

VICE PRESIDENT HATCHER: Right, I could answer this but no doubt the parties will address us in due course as to how they say work value is taken into account at all in this decision.

PN3153

MR SECK: Well I'll - - -

PN3154

VICE PRESIDENT HATCHER: Why it forms a date and point at all.

PN3155

MR SECK: Well it was obviously the starting point taken by the union. We've adopted it but I'll explain our position as to why it was done but it was done by reference to benchmarking.

PN3156

MR IRVING: Yes. Your Honour, the history is set out in pages 24 to 26 of the original submissions of the union. A couple of things I want to correct that my friend has raised. First is he says it's his fault that he didn't have the decision. I think it's probably my fault and he's too chivalrous about that.

PN3157

The second is to address your Honour's question about what's the magic in 1998 in circumstances in which one has an award made for the first time by Commissioner O'Shea and awards are made in accordance with the then national wage case principles for the making of first awards.

PN3158

VICE PRESIDENT HATCHER: I mean, for example, he, Commissioner, on about page three of the decision, about point seven, referred to the first award principle as being the relevant principle of significance not the work value principle.

PN3159

MR IRVING: Yes. There doesn't appear to � I mean, the submissions were filed well before I got involved in the case and everyone was stuck on 1998 but I did want to alert the Commission in these final submissions that there just doesn't appear to be any magic in 1998. There just doesn't appear to have been a work value assessment done at any stage and that's one point but the other point is this, at the end of the day, the legislative test doesn't � the old national wage case principle used to require significant net addition from the last time it was assessed.

PN3160

That's not what the Act says now. It's actually a different statutory test. We're not assessing changes from A to B. We're assessing value now. The value now needs to be justified and one of the obvious ways of justifying is to prove change but it's not the only way of justifying.

PN3161

If, for example, there's an historical inequity, you come across awards in which kindergarten teachers were paid $400 a week and the driver of the truck was paid $450 a week. 10 years down the track, the kindergarten teacher's got a three year degree or whatever 10 years down the track, you might not be able to prove a work value change in the work of the kindergarten teacher but just because of that original historical inequity doesn't mean it continues forever and a day.

PN3162

Under the Act, it says you assess what the work value actually is as proved and you proceed on that basis. By either route, by either saying there was never any work value assessment or there was some sort of work value assessment and there has been change or by the route of saying well this is what the work value is now, whether or not there was change from 1998 or not.

PN3163

VICE PRESIDENT HATCHER: Well the problem with that is that the whole case and evidence has proceeded on the basis of whether there's been change since 1998 not on the basis that we're conducting some sort of ab initio assessment of what is a fair wage base on the work value of pharmacists.

PN3164

MR IRVING: Well in my initial submissions, I did open on the basis that the proper assessment doesn't necessarily require the proof of change.

PN3165

VICE PRESIDENT HATCHER: Well I understand the general proposition but it's the way the evidence, which was obviously filed last year, and the cross-examination on that evidence has proceeded, that's the difficulty.

PN3166

MR IRVING: I accept that, your Honour. Could I move on to, in terms of the modern award objective, there was a final point that I wish to mention which was the need to promote social inclusion through increased workforce participation. This is dealt with at the foot of page three of the submissions and I just wanted to mention at this point about the workforce participation and what happens to employees after the age of 40.

PN3167

This is, in many respects, not a real career. It's not a real career in that 60 percent of the profession, the evidence says, are in their first 10 years of practice. There is a high level of disillusion with wages. 85 percent of employees in this sector would not recommend this as a career. I mean, this is a dire situation for an important public service which are being performed in this sector.

PN3168

The principal reason for this level of dissatisfaction are the low rates of wages and we've got a situation in which the professional body supports an increase in the wages rate. To retain pharmacists in this profession, it's important to increase the rates. It's important for the workers, it's important for the profession, it's important for the community.

PN3169

VICE PRESIDENT HATCHER: Given that it's a labour market which operates on above award rates, how is anything � unless we made an increase of a proportion well beyond what you've asked for, how are we going to nudge the market upwards by anything we do?

PN3170

MR IRVING: Well - - -

PN3171

VICE PRESIDENT HATCHER: I mean, the wage rate for a pharmacist, what is it currently, $900 and something, I mean, no one's going to get a four year degree to work for under $1000 a week.

PN3172

MR IRVING: Sorry?

PN3173

VICE PRESIDENT HATCHER: No one's going to do a four year university degree to earn less than $1000 a week.

PN3174

MR IRVING: Well that's what � I know. Well it's - - -

PN3175

VICE PRESIDENT HATCHER: If we increase that by six or seven percent, that's not going change anything in terms of the way the labour market operates in this industry.

PN3176

MR IRVING: Well it is for a couple of reasons. First, interns are paid almost precisely at the award rate at the moment, okay, that's the first proposition. Second, when one looks at the lowest decile and quartile of wages paid for the higher range of pharmacists, they're within the range of the pay rises that we seek.

PN3177

It won't bump everyone up but it will bump up a significant portion and the lowest decile and quartile are set out in annexure AC21 to Crowther. That's the second aspect. The third aspect is this, as Ms Willis says, and as Mr Pricolo said, to get a good worker you've got to pay above award. The way in which the market is likely to operate and respond to an increase in award rates is to pay further for above a similar proportionate amount above the award and if that's - - -

PN3178

VICE PRESIDENT HATCHER: When you say that's - why is that likely?

PN3179

MR IRVING: Sorry?

PN3180

VICE PRESIDENT HATCHER: Why is that likely?

PN3181

MR IRVING: Because to get a good worker you've got to pay above award. The final point is this, one of the significant changes structurally within the industry in the last 10 or so years has been the rise of what are called discount pharmacies. One can trace it through the Crowther reports. The increase in prevalence of these supermarket pharmacies, so to speak.

PN3182

They are not dealt with by the evidence because by and large they're not represented by the PGA. They're a different beast. They're not your ordinary local community pharmacist. These discount pharmacies which are the growing part of the sector, according to the evidence in Ms Crowther's report, are those who are playing in the bottom end of the � paying at the bottom end of the scale, it's significantly so.

PN3183

10-20 percent below the average rate for the banner pharmacies, for your Amcals and that sort of thing, your Chemist Warehouses, and they're the things that are ‑ that's part of the industry that's expanding. By changing the award rates, we are able to affect the rates of pay of this growing part of the sector.

PN3184

Even if there were one, even if there were one who was given an unfair rate, I mean, who do we leave behind? I mean, what does the Act say about setting a safety net for all? Could I just make a couple of brief observations about assessing work value. The Commission's been doing this for a year, forever, 30-40 years. Couple of points.

PN3185

First is this, in one sense, the core task of pharmacists, to provide medicine, to help the sick, hasn't changed since 1998. Indeed, it hasn't changed in 50 years, hasn't changed in 2000 years. It's the level of abstraction and generality that's important when making these assessments and generalised evidence to say that the task hasn't changed, the core of it hasn't changed, the essence of it hasn't changed, isn't really helpful one way or the other.

PN3186

One needs to engage with the particular, as was done through the evidence particularly of the experts who came along and gave evidence in this case. The second point is that there's been a lot of discussion about, cross‑examination about, whether or not this is evolutionary change or the like and I go back to the analogy I drew in the opening that if we are assessing a change between one beast and another, we look at them at the beginning and the end.

PN3187

If they're different beasts, that's enough. It doesn't matter whether or not it's occurred subtly or gradually or covertly. At the end of the day, we're trying to figure out whether or not the extent of any change. The next point I want to deal with at page five is work value and CPS.

PN3188

I think the best way for this topic is to address you on the quality use of medicine by saying this, in a formal sense, what changes in the pharmacist's role pivots around the national medicines policy in 2000. That's the evidence of Dr March, that's the evidence of Professor Krass and the key component of the national medicines policy is QUM, quality use of medicine.

PN3189

What the hell does that mean? Let's go through it. If one looks at page eight, quality use of medicine and what I've tried to do in the course of these submissions and when addressing some of these technical phrase is just to start with paragraphs, so what is it? What are we talking about here? Quality use of medicine is one of the four key components of the policy.

PN3190

It means ensuring medication use by patients is judicious, appropriate, safe and efficacious. What's meant by those phrases is spelled out in the policy itself and it's set out at the top of page nine. You select management options wisely by considering the place of medicines in treating illness and maintaining health and recognising there may be better ways than medicine with managed disorders.

PN3191

You choose the suitable medicines to get the best available option and choosing what is best takes into account the individual, that's why we're talking patients more, take into account the individual, the clinical condition, the risks and benefits of those who check, et cetera, and the cost for the individual, the community and the health system.

PN3192

When dispensing medicine now, you're not just filling a script. You must, as a core part as a core part of your function, you must choose the best available option having regard to that range of factors. The third aspect of it is you use medicines safely and effectively to get the best possible results by monitoring outcomes which is why all of these reviews are conducted of medicine usage.

PN3193

Minimising misuse, overuse, underuse, et cetera. If you look at the 1999 practice standard, which is in evidence, it required the safe and effective use of medicine. To the extent that pharmacists provided medication as a central function of their task, they were providing safe and effective use of medicines.

PN3194

From 2000, it wasn't just safe and effective, it was what's best, what's best for the patient. To find out what's best you need to engage with the patient in a very different way. You've got to ask different questions and respond in a different way. You're not just checking the packet to find out whether or not this is out of date. You are making informed decisions.

PN3195

The QUM is an approach to strategy about medications and their use and it's not just about delivering it. The approach requires different skills and the different skills are called cognitive pharmaceutical services. That's what CPS is. They're the services around the proper use of an administration of medication.

PN3196

The changed approach required, and led to, the educational change, that's the evidence. With emergence of this concept of pharmaceutical care and patient centred care, it was necessary to re-train, re-focus the training, train people to do a different thing. It's as a result of this change there has been a paradigm shift in the last two decades and QUM and the changed approach that it demands then goes forth and infiltrates the premises, the whole range of programs about HMR and clinical interventions and dose administration aids and chronic disease management.

PN3197

To the extent that, for example, dose administration aids have been provided in the past, they're provided differently now. The work is done differently and it's done differently because the fundamental task being performed is different. We're not figuring out whether or not this is safe and effective. We're figuring out what's best.

PN3198

As I mentioned, the practice standard in 1999 was safe and effective use. The current standard is it requires quality use of medicines. The code of ethics said nothing about safe and effective use even in 1998 and now principles are about quality use of medicines. Indeed, principle two is about patient centred care. You don't get patient centred care in these earlier documents.

PN3199

It's not just about what's best for the patient, about what's best for the community too, and as a result of these changes, I say, at the bottom of nine, the very function of a pharmacist changed as did their roles and responsibilities. What we are measuring here is the nature of the work, the level of skill or responsibility and the conditions under which work is done and that was a big step up in each of those areas.

PN3200

In terms of the responsibility aspect, what happened was that as part of the competency standards, part of the professional standards, one needed to meet this higher standard and those responsibilities became embedded in the legislation in the way I outlined in the opening. That's the entry into CPS so when one is dealing with CPS, the background to it all is that it requires this very different set of skills and a very different approach to the way in which these pharmaceutical services, which are listed on page six, are now provided.

PN3201

Professor Krass provided a report in which she identified these cognitive pharmaceutical services. I've listed them out at the foot of page six. I must say, the report itself, the indexing of it, is a bit of a nightmare. Perhaps I can provide this document to the Commission which might be of some assistance. It is simply � sorry, associate, can I � sorry.

PN3202

It's just a table of contents of her report and it's just an easier way to find information in the report about those various aspects. The pages are 3/100, or the first one is 2/99. In an earlier tender it was page two. In the tender which you've got before you now it's page 99 so I think you can safely ignore the earlier page reference.

PN3203

I shan't obviously take you through all of them but that's the cheat sheet of how one goes about this, finding the evidence on these particular aspects. The question is well what's new in that list? What are the new cognitive pharmaceutical services post-1998? To which the answer is all of them, every single item. The amount of CPS delivered prior to the late 1990s was negligible.

PN3204

It was meagre, it was paltry, it was virtually non‑existent and that was the consistent evidence of Professor Krass. She's the expert. PGA did not call any expert to say she's wrong. They did not produce any report, any article to say she's wrong. She acknowledged that there might be isolated pockets, some people here, some people there performing cognitive pharmaceutical services before the national medicine policy came about but it was insignificant, inconsequential.

PN3205

The obvious and compelling conclusion is that there simply is no expert in Australia who would contradict what Professor Krass has said. All of the CPS needs to be � all of these services have to be delivered in a manner that meets current competency standards and professional standards and through those standards it changes the responsibility of pharmacists for the purposes of section 134.

PN3206

It's somewhat stunning, I found somewhat stunning, the proposition was advanced that these services were provided beforehand in � before 1998, in circumstance where no evidence, no report, no survey, nothing came along to say that they were provided in accordance with QUM before 1998. It's said "Well there's no article, you didn't point to any article to say that � didn't annex any article to say that these services weren't provided before 1998".

PN3207

If you're looking at the valuation of Bitcoin and you were trying to do a literary review of all the articles that assess the proper valuation of Bitcoin and compare the 2008 with the 2018 edition, you might find lots of articles in 2011, 2013 and 2018 but no articles prior to 2008. There's a reason. Bitcoin was an idea. It didn't exist in practice.

PN3208

Why were there no articles about CPS from the early 90s? For the same reason there was no articles about CPS from the 1920s. It just wasn't there. One of the � on page seven proceed to say that, as the professor said, there's a wide range of CPS that have become characteristics of community pharmacy practice in Australia.

PN3209

All pharmacists must adopt the patient centred care approach, all pharmacists must. It is code, it is principle two of the code of conduct. Ms Willis came along and said "Well it's a choice". It's not. It's embedded within the code and the CPS services we're talking about are not just the funded services, as Professor Krass set out in her report.

PN3210

At the same time as the rise of the more complex engagement with patients and choosing the best medication approach, there has been a demise of the low skilled mundane tasks and various employees/witnesses give evidence about this. The task of retrieving patient information, it used to be that they were kept on cards and they needed to be tracked down and it was a time consuming task but now we've got computers, we can track it quicker.

PN3211

It used to be, when you needed drug information, you needed to go to books, you needed to go to (indistinct) but now we've got a computer. It's quicker. Retrieving information is a low skilled task. The complex task is figuring out what to do with the information, okay. There's less time being spent by pharmacists on these low skilled tasks.

PN3212

Their day is still full. They're spending more time with patients engaging in all of the CPS activities. They're the more complex tasks. Could I just mention a few things about the funding of the CPS because it will tie into, especially later, about fairness and to rates of pay. I set out at the foot of page - or we set out at the foot of page seven and eight, and I say we because it's been a monumental joint effort by my junior and I and others who have provided assistance, the funding of the services and CBAs are these bargains which are reached by the PGA and the Commonwealth about granting funds in exchange for reforms.

PN3213

All of these are part of annexure 13 and I refer, in the footnotes, to where in the relevant CBA these are drawn from but the reform in the first CBA in 1990 was the amalgamation of pharmacies and interestingly, in that CBA, there was links to award rates, "We will give you this money but there will be connection with award rates in this way and that way".

PN3214

That disappeared by the second CBA and there's been no reference since then to any delivery of any benefits to employees as a result of these billions of dollars of funding which have flowed into the coffers of pharmacy owners. The third CBA marks fundamental change from the previous approach in that it's based on the principle of expanding community pharmacies' professional roles.

PN3215

That's one of the objectives, that's one of the stated objectives, to expand the roles and in exchange for which there were $400 million given, as Professor Krass outlines, $400 million given to expand the professional roles of community pharmacists. That objective mirrors the central conclusion of Professor Krass that the roles and responsibilities of community pharmacists have expanded over the last 20 years, and I detail there some of the changes introduced in that the PGA committed to enhanced medical reviews, quality use of medicines, implementation of quality standards, increased coordination and many of the factors that we point to as saying there's been a change in the work performed. That's what they committed to.

PN3216

They received a further $500 million in four CPA for these sorts of services and the CPAs, they weren't some sort of sham or pretence by the PGA. They promised to expand the services and the professional services. The only way that that could occur would be for there to be a change in the work practice of the pharmacist and that's what happened, the work of pharmacists changed.

PN3217

VICE PRESIDENT HATCHER: Ms Willis's tends to suggest they were a sham. She said that they had doled out money for things that had already been done to compensate for lower income from the prescriptions.

PN3218

MR IRVING: Yes, I know it was. Could I deal with that in this way, your Honour. Ms Willis is a pharmacist who owns two pharmacies in Western Australia. That's what we know about Ms Willis. We know she hasn't done any further - she hasn't got a Masters in Economics. She doesn't hold a chair in economics. Professor Clarke does and he gives evidence about whether or not what happened in terms of that set-off and what he says is that adjusted for inflation, the increase in the payment for the dispensing function has increased from 750 to over $2 billion over the period 1991 to 2014, I think was his reference period.

PN3219

There is not one suggestion in any of the CPAs that this set-off was occurring. What was happening was there was a major structural reform needed. That is, we needed the National Medicines Policy to be implemented in exchange for which we gave money and, as Professor Krass makes clear, it's worth it. It's worth it for the Australian people. It's worth it to the economy to have pharmacists do this work because pharmacist intervention when it comes to inoculation and medication reviews and dealing with chronic health, that intervention delivers three or four or 10-fold the investment for the health system.

PN3220

That is the savings and Professor Krass deals with this, that the savings achieved by having pharmacists do some of this preventative and early interventioning kind of work and reviews, means that there are fewer mishaps that things don't get out of hand in terms of medication abuse, that people don't remain on prescriptions forever and a day and remain on the same drug regimen and that saves money. So it's an investment that ends up saving the Australian taxpayer money. You wouldn't need a set-off in those circumstances. You would give money in exchange for greater savings to the economy. It's not a zero sum game for the Commonwealth. They have poured more money into this aspect because they know they're going to get far greater returns from savings elsewhere in the health system. I understand Ms Willis expressed that view, but in the context of her expertise and in the context of the expertise of Professor Clarke - - -

PN3221

VICE PRESIDENT HATCHER: So the central point is her proposition that room is provided for declining dispensing income which had to be compensated for is simply wrong on the numbers.

PN3222

MR IRVING: Yes. One of the things in the CPAs, of course, is that there were accountability measures. They promised we'd give you dough to this and there were accountability measures and it's a significant amount of taxpayer funds. So you would expect there to be accountability measures and you would expect them to be making sure, that the Commonwealth would be making sure that the moneys being spent in ensuring the expansion of the services that are actually provided. And, of course, there's all sorts of pilot reports and evaluation reports referred to by Professor Krass which shows that these services are, in fact, being provided and this work is, in fact, being done.

PN3223

Sorry, the point your Honour raised about Ms Willis is dealt with in the middle of page 8. Professor Clarke states that between 91 and 2013, there's been an increase from 750 to 2 billion in funding for medications, even after adjusting for inflation. So the notion that there's been some decrease in funding for medications doesn't appear to be borne out by the evidence.

PN3224

Now, I've dealt with what's meant by quality use of medicine. I just want to mention some things about educational changes and the modern pharmacist. Obviously, educational change is one of the matters which are considered significant in assessing any work value changes. What has occurred since the late 1990s has been a four-year course introduced. There's been an increase in the breadth and complexity of the undergraduate course requirements and Dr March explains why this change in educational focus was necessary, in particular, the primary reason for the courses, he says, was so elementally and structurally reshaped was the change in the nature of the work presage by the patients and to approach.

PN3225

The introduction of training about a broader range of topics "became part of the core skills of pharmacists. These skills are utilised every day, every hour, by every pharmacists; every interaction. QUM requires you not to ask what is a safe medicine, an effective medicine, it requires the opening posture to be very different and the whole purpose of the engagement to be very different with the patient. These skills are engaged by pharmacists in every interaction, he says. Sometimes it will be central to understanding the patient's needs, sometimes they're secondary, but they're always engaged. And when a person is trained in behavioural theory and cultural sensitivity, the skill is simply not switched on and off.

PN3226

The significance of the introduction of a four-year degree for pharmacists has been assessed in a work value context. It's been assessed in a work value case run in 2003 in the New South Wales public sector. I've got a copy of that decision. I'm sorry, but I've marked up and highlighted some passages. I'm sure that won't affect your judgment. First, this case, like all work value cases, is distinguishable. They're all the same. They're all different. The Bar tells us that comparisons are otiose and there are differences between the work value considerations relied on in that case compared with this case. There are different types of drugs and interactions with the health service which occur within a hospital compared with outside of a hospital.

PN3227

So it's not a perfect fit, but what is a perfect fit is the educational changes because one is assessing a change from a three-year to a four-year degree of pharmacists in Sydney. It's dealt with in paragraph 133 and the Commission said that as to qualifications, it accepts there's been changes in the pharmacy degree course. There's now an additional year of training. Then in 134, they proceed to say:

PN3228

We would also observe that the new degree course is clearly a direct and tangible academic acknowledgment of the additional knowledge and skills generally required of a pharmacist currently working in the health system.

PN3229

It's pretty compelling evidence of it, I interpolate.

PN3230

VICE PRESIDENT HATCHER: But if it's that in this case, then it's acknowledging things that happened in the 1990s.

PN3231

MR IRVING: No.

PN3232

VICE PRESIDENT HATCHER: No?

PN3233

MR IRVING: The changes that occurred - sorry, if it's stated - - -

PN3234

VICE PRESIDENT HATCHER: If we try to apply that logic to this case, because the change was something that happened, I think, by way about the turn of the century, it must have been acknowledging work requirements which had already been developed which the universities were trying to meet.

PN3235

MR IRVING: Yes, so - - -

PN3236

VICE PRESIDENT HATCHER: So they're 1990s changes. They're not - - -

PN3237

MR IRVING: No, what happened was this. As Dr March explained in his evidence, how it came about was, the educational changes, how the educational changes came about was that from the mid-80s, the UN were talking about the introduction of this quality use of medicine and a new medicines policy for the world, which that's at a pretty broad level, I appreciate. Throughout the 80s and 90s, there were discussions within various forums about trying to implement such policy in Australia. There were progressive moves towards it which was finally effectuated in 2000 with the introduction of a National Medicines Policy and the adoption of QUM.

PN3238

In the mid-90s, universities foresaw the movement worldwide in pharmaceutical practice. The whole world was moving towards a new model of pharmaceutical practice. The discussions which were occurring at departmental and the steering group level, et cetera, were all moving in the same direction, that there was going to be this new practice and he says that we change the courses from the mid to late 90s because we knew this big change was a-coming and we started to teach all these new skills because we knew that at some stage in the near future - that's as I understand how he sets out the chronology in his first and second statements, how it came about.

PN3239

So the assessments that the Commission were making in 2003 were a reaction to the changes that occurred. I think the evidence is Sydney University changed in about 98 to a four-year course. My friend tendered, I think, exhibit 27 yesterday which set out the course requirements for 97 and 98. Unfortunately, I think, 97 and 98, it's only the first year course requirements rather than the remainder of the course requirements. But you can see that from 2000 onwards there's these expanded roles and functions and things that are being taught.

PN3240

The Commission goes on to say, this is in 134, halfway down the paragraph:

PN3241

Put another way, the fact of the redesign and extension of the Pharmacy Degree course, on the evidence before us, is a clear and unambiguous response by the tertiary institutions to the higher levels of skill and knowledge required of practising pharmacists and the need to better equip new inductees into the profession to cope with those higher demands.

PN3242

That's not a surprise. It's consistent with the findings that we would seek that this Commission make about the changes in education and the recognition of the changed skill required to perform the function. We're making good time. I should say, but the educational changes don't stop there. Professor Krass in her evidence at pages 105 deals with the continuing changes in education, not just the CPDs, but at the undergraduate level, she compares the 2008 and 2014 changes and sets it out in a table and you can see the higher demands that are placed just in the last six years.

PN3243

Changes in the internship program, I've dealt with at the bottom of page 11 and 12. The evidence is there was always an internship program, there remains an internship program, but the requirements of the internship program are now more taxing in that there's more work required, there are more examinations, there are higher pass marks that need to be acquired, and Amy Thompson gives evidence about all of the various tasks she has had to complete as part of her internship program. I should say part of the internship program is this. You've got to do 1,824 hours of work during the course of the period. That is, that's 45.6 weeks. That's a full-time load, so the study is on top of the full-time load that you carry and it's not as if you're week on, a week off study or something like that. You are a full-time worker in addition to meeting all of these additional demands in terms of study. You can contrast all the work Ms Thompson had to do with the less rigorous approach which Mr Yap outlines in his statement.

PN3244

Changes in registration requirements including CPDs. Every year, pharmacists have to pay for their own insurance pursuant to the AHPRA registration standard. It is a compulsory requirement. It didn't exist in 2008. It didn't exist in 1998. They need to reach into their own pocket and pay for it themselves. There's no provision in the award for reimbursement of that sum. It's just an impost, a change in the condition under which work is performed.

PN3245

They need to meet the CPD requirements. The CPD requirements, as we've heard, are not only mandatory, but increasing. It was 20 annual units of CPD in 2011. Then it rose to 30, now it's risen to 40. A unit roughly equals about an hour. In addition, as is set out in the CPD standard which is one of the exhibits, in addition, it's not just didactic learning, it's assessment based elements now. So you don't need to just tick a box to say, "Yes, I have done this", but, rather, you are assessed on various aspects of it which was never previously a requirement before three years ago. These CPD courses aren't reimbursed pursuant to the award. Mr Pricolo says he pays for some of them, but doesn't pay for others of them and - - -

PN3246

VICE PRESIDENT HATCHER: What's the relevance of that to work value?

PN3247

MR IRVING: Sorry?

PN3248

VICE PRESIDENT HATCHER: What's the relevance of that fact to work value? I mean, leaving aside you could have brought a separate claim for reimbursement of expenses, but it's not relevant for work value the fact that they're paying things out of their own pocket, is it?

PN3249

MR IRVING: It's relevant in this way. It's a change in which the conditions under which work is performed. The condition being an obligation to pay for further learning and pay for insurance and in assessing a fair rate. And if the CPD requirements were $10,000 per annum, then in assessing the fair rate, one would take into account the amount. Similarly, if they're for a lower amount. That's how we'd say they're relevant, your Honour.

PN3250

The next issue to which I wish to turn are the changes in regulation. If I could provide to the Commission these documents. There are three broad standards that we're dealing with here. The first is competency standards. The second is code of conduct. The third is professional standards. First, as to professional standards, the evidence is that the professional standards the existed in 1999 were those as set out in GM-24. The current professional standards are at GM-25. I have - or we have - gone through and identified to the Commission the changes of significance between the two and highlighted them.

PN3251

One can see in relation to the professional standards in 1999 that quality use of medicine and patient-centred care weren't even part of it. One can see in the professional standards in 2017 that quality use of medicine is now a core of many of the practice standards that need to be met. It is not the only change, but it's one of the changes. These are the standards that, by legislation, need to be complied with by pharmacists in the performance of their tasks as well as being the standards which they are judged by reference to in any disciplinary proceedings. There's a change. There's significant change and one of the ways of measuring change is documents which record what you have to do and documents that record what you have to do in 99 compared with 2017.

PN3252

Another document which deals with how one goes about the task is the code of ethics. Again, the original documents are in evidence and, again, there are changes. I haven't highlighted - we haven't highlighted in the same way. We ran out of time going through an identifying all the significant changes. But the most prominent one is that care principle 2: "A pharmacist practices and promotes patient-centred care." It didn't exist. It didn't exist in 1998. It just wasn't part of the function. Now, it's one of the seven principles, core principles, in which every task needs to be performed in accordance with.

PN3253

The third matter is competency standards. They describe the knowledge and skills a pharmacist has to possess to be competent to practice. There's been some kerfuffle between the parties about what were the competency standards in 1994 compared to 1998, et cetera. There was a document tendered yesterday afternoon, exhibit 25. This is a document which describes itself as a draft document which was prepared by a steering group to a pharmacy conference. The steering group to the pharmacy conference adopted a resolution to say that the meeting endorses the competency standards and it recommends the level of competency to be expected of a pharmacist at entry and recommends that the governing body of the organisations participate in the steering group and the registering authority be requested to endorse the document.

PN3254

They wanted bodies to endorse the document. Nobody did, on the evidence. Nobody says - nobody comes along and gives evidence to say: "Actually, yes, these were the standards that applied in the creation." None of the employer evidence come along to give evidence to say: "Yes, these are professional standards." This is an idea that was mired and the extent to which it's mired is actually traced in exhibit GM-24. If I can take you to GM-24.

PN3255

VICE PRESIDENT HATCHER: Volume 2.

PN3256

MR IRVING: Sorry, it's attachment GM-23. I apologise to the Commission. On page 98 to 99, you will see there's a reference to the project to develop national competency standards in 92 to 94. You can see there's our extract from exhibit 25 and then what happens next is they review the document and the majority of the recommendations of the review were accepted unanimously, but certain things remain contentious.

PN3257

Then in 2001, there was a further review and the first step was this and then there was a consultation group to do that. Further revisions were suggested about this. Review drafts were sent out here and then in 2002 to 03, there was funding as part of the third CPA to conduct a project called: "Enhancing the value of pharmacists through augmented competency standards and targeted professional practice standards." The earlier documents were used as a basis for the development of competency standards and that's how we got our competency standards. A project, an idea, a draft, a discussion, and then, finally, 2003 - bang - competency standards.

PN3258

DEPUTY PRESIDENT DEAN: Mr Irving, doesn't it say it was endorsed in the last sentence under the heading: "Second Review"? It said: "This version was circulated and presented. It was endorsed."

PN3259

MR IRVING: Presented in 2001, yes.

PN3260

DEPUTY PRESIDENT DEAN: Right.

PN3261

MR IRVING: So it came to be that we tendered the 2001 version.

PN3262

VICE PRESIDENT HATCHER: So you'd say that was the first published and distributed version?

PN3263

MR IRVING: That was the first version that we know that has been endorsed by governing bodies.

PN3264

VICE PRESIDENT HATCHER: Wasn't the 92/94 one - - -

PN3265

MR IRVING: Well, actually, it might not even have been endorsed by governing bodies. It might have been - - -

PN3266

VICE PRESIDENT HATCHER: The 1992/94 one was endorsed?

PN3267

MR IRVING: Sorry?

PN3268

VICE PRESIDENT HATCHER: The 92/94 one was endorsed?

PN3269

MR IRVING: No, the amended draft from 2001 was endorsed.

PN3270

VICE PRESIDENT HATCHER: Endorsed by who?

PN3271

MR IRVING: In the final, under the heading: "Second review of competency standards."

PN3272

VICE PRESIDENT HATCHER: Yes, it was endorsed by the Australian Pharmacy Conference.

PN3273

MR IRVING: Yes.

PN3274

VICE PRESIDENT HATCHER: But so was the 92/94 one.

PN3275

MR IRVING: Yes, so it does not appear to have been endorsed by the PSA or the PTA or any of the registration bodies that existed at the time, but rather a conference of people who got together and the conference, you know, with representatives of various folk, no doubt, got together and endorsed it. But it appears that when it became effectuated, real, and in any sense binding, only comes about from 2003.

PN3276

VICE PRESIDENT HATCHER: But is it clear whether the 92/94 version was in general use or was published or was recognised in some sense?

PN3277

MR IRVING: No. It wasn't suggested by any of the employer witnesses that that was the case. It wasn't the evidence of any of these witnesses that that was the case and it would be a strange thing if it were to be competent under the 92 document, unit 1: "Promote and contribute to the quality use of medicines." That's 92. Uni students weren't taught that until 97, so if that was the professional standard in 92, you had five years of people who weren't even taught about what they needed to know. This was an idea at this stage.

PN3278

A compare and contrast document between the various competency standards isn't as easy to prepare and present to the Commission partly because the numbers changed, the elements changed. However, there is an annexure to the most recent competency standards which does compare the 2011 and 2017, and even those changes in the last six years have been immense, never mind the ones over the last 20 years. The language of each new domain has. You know, it's got far greater breadth and depth of skills and responsibility being undertaken.

PN3279

They're the submissions at the macro level of the essence of the changes that have occurred. Those changes play out as applications in about 10 or 15 different types of work done by pharmacists. They are addressed in pages 14 through to 22; staged supply, inoculations, meds checks, chronic disease, clinical intervention, et cetera. We have collected together there the evidence of - we've started with, "What is it?" to start with. The second is, we've collected together there the current regulation, the former regulation of each of these topics. In relation to each of these topics, the core change which is fed into each of them has been the adoption of QUM and the cognitive pharmacy services skills that it entails.

PN3280

In relation to each of them, they require more skill, more responsibility, and in relation to each of them, the levels of accountability have increased over time. There's more reporting, more follow-up and going back to QUM as the central pivot of that, they each require greater monitoring of outcomes. They each require a deeper more complex judgment about what is the best available option for patients. I don't know whether or not the Commission will be greatly assisted by me going through an illustrating that point with 15 different subcategories. The evidence is all set out there. There are two areas which don't fit into that description which are inoculations and vaccinations and absence from work certificates in that. It was never part of the function previously, but it is now part of the function of.

PN3281

For the others, on some level of abstraction, with some degree of generality, one might say, well, there's always been complementary medicine being taken by clients which need to be considered or there's always been clinical intervention or there's always been chronic disease management. Chronic disease has always existed. But the answer to each of those has been, well, the task we do when dealing with that issue, that age-old issue, is now different. The function we perform is different. The nature of the task is different. The way we go about it is different. The responsibilities attached to it is different. The accountability is different. For inoculations and vaccinations, they simply weren't part of the function previously provided and the same with the absence from work.

PN3282

One thing I haven't addressed in any detail is down-scheduling. I don't know whether or not my friend has got the schedule relating to - your Honour asked for the schedule as it existed in 98. Hopefully, we can see that if it exists and I can say something more sensible about it then.

PN3283

MR SECK: I think as my learned friend described yesterday, that task is not a simple task just because the gazette doesn't exist in a convenient form, at least from our perspective. I'm not saying it can't be done, but - - -

PN3284

VICE PRESIDENT HATCHER: Anyway, you haven't done it.

PN3285

MR SECK: Yes, we don't have it. We haven't done it.

PN3286

MR IRVING: On the current state of the evidence, it's very helpful for us, which is that there was zero or one Schedule 3 medicine in 1998 and there's 60 now under the current Poisons Standard and true it is, some go in and some - - -

PN3287

VICE PRESIDENT HATCHER: Who gave that? Who gave that evidence?

PN3288

MR IRVING: There was one witness who gave the number zero and one witness who gave the number one as to Schedule 3 and I cannot remember who said what, but - - -

PN3289

VICE PRESIDENT HATCHER: Was this in oral evidence or in - - -

PN3290

MR IRVING: This is in oral evidence. It arose in the course of cross-examination.

PN3291

VICE PRESIDENT HATCHER: Right.

PN3292

MR IRVING: They both may well be right in that different state scheduled drugs, they all had the same schedules broadly, but some of them had regulations that put drugs in one category rather than the other. There were some slight regional tweaks to what was principally a national standard applying form 1989. But I cannot assert with any degree of - notwithstanding the evidence that is wildly in our favour, I can't assert with any degree of confidence that that's a complete picture. And true it is that drugs have come in and drugs have gone out, but if we are moving from a handful to 60, we can see the nature of the change.

PN3293

It's like the CPS services were funded under the 1995 agreement. That is, there was funding for $4 million for pilot studies about CPS services. There's now funding for $1.2 billion for CPS services. And it might be said, well, you know, there was funding back then and there's funding now. It's increased 30,000 per cent. It's like saying, you know, there were drugs in Schedule 3 then and drugs in Schedule 3 now. They move in and out, but it's the amount of the change, rather than that level of abstraction which is informative. There are two final points that we need to address, the first is an accredited pharmacist that Ms Knowles will address and the second is about how to set a fair rate.

PN3294

VICE PRESIDENT HATCHER: Just in relation - let me find it again - to QCPP. This is on page 22.

PN3295

MR IRVING: Yes.

PN3296

VICE PRESIDENT HATCHER: So that's a process of accrediting pharmacies, is that right?

PN3297

MR IRVING: Yes.

PN3298

VICE PRESIDENT HATCHER: Was there evidence about what proportion of pharmacists are QCPP accredited?

PN3299

MR IRVING: Yes, your Honour, in the folder which is exhibit 19, the opening folder, behind tab 20. This is an extract of the submission of the PGA to the review of pharmacy remuneration and appendix 5 to that document, which ran for some three or 400 pages. Appendix 5 is what the PGA says is a comprehensive list of pharmacy services and - - -

PN3300

VICE PRESIDENT HATCHER: All right, so it's 94 per cent on the second page of the document.

PN3301

MR IRVING: Yes, that's right, and one can see there that for the purpose of getting or retaining money, the PGA identifies all of those services as services that are provided by a pharmacist. Compounding medicines is, of course, the traditional notion of dispensing medicines, mixing and dispensing. But you'll see that a huge range of the others are what we say are the new services, the CPS services, staged supply, meds check, and the like, home medicines refused, Dose Administration Act, et cetera.

PN3302

VICE PRESIDENT HATCHER: So your submission is that each pharmacist who is employed in a pharmacy which is or wants to be QCPP accredited must have the additional training identified in the second paragraph?

PN3303

MR IRVING: Yes, your Honour. I must say QCPP, compared with the other considerations, it hasn't loomed very large in the evidence and the QCPP program is principally imposes obligations on pharmacies' owners, but it does import certain training obligations.

PN3304

VICE PRESIDENT HATCHER: But it also, if you look at this document, is premised on the fact that other matters upon which you've relied upon in your case are a feature of the work of the pharmacy, for example, sick certificates, sleep apnoea services, et cetera.

PN3305

MR IRVING: Sorry, I missed that last - - -

PN3306

VICE PRESIDENT HATCHER: The list of functions. Let me put it this way, QCPP accreditation involves recognition that the pharmacy and the pharmacist can deliver all those functions that are listed on the page which sweep up a number of the matters you've separately relied upon, for example, sick certificates, sleep apnoea and those sort of things.

PN3307

MR IRVING: Yes, though, I should say that simply because they're listed in that schedule does not mean that each pharmacist performs each of those functions. This, as I understand it, is - - -

PN3308

VICE PRESIDENT HATCHER: Does it mean that each pharmacist who is trained to perform each of those functions?

PN3309

MR IRVING: No, not even that. There will be, as I understand this document, it identifies this is what the sector does, rather than this is what each pharmacy does.

PN3310

VICE PRESIDENT HATCHER: Right.

PN3311

MR IRVING: It would be incorrect to proceed on the assumption that pharmacists exercise each of these functions.

PN3312

VICE PRESIDENT HATCHER: Right.

PN3313

MR IRVING: There is evidence from Professor Krass. There's a table of ticks and crosses that my friend took you through a couple of days ago which showed that some pharmacists are not doing some of these functions, many of these functions, and though it was (indistinct) the table that there were, I think, first, eight items on the left which virtually everyone was doing and then on there's a dozen items on which 90 per cent of pharmacists were doing at least two of these additional items, but many not. Ms Knowles will address on the accredited pharmacist issue.

PN3314

MS KNOWLES: If the Bench goes to page 23 of the written submissions, it has the revised definition of accredited pharmacist in respect of APESMA's claim. So that is that an accredited pharmacist means a registered pharmacist who has current accreditation from an approved accreditation body to conduct home medicine reviews or HMRs, or residential medication management reviews, also known as RMMRs, and is employed by a person who has been approved by Medicare to conduct those services. So in respect of that broad question, what is involved, that is encapsulated or summarised in the following paragraph, that they're medication management reviews. They are provided by the accredited pharmacist for people within their homes. That's for the HMR or within a residential facility for the RMMRs.

PN3315

The service consists of reviews of all of the medications and medication related issues and there is an interview with the patient. A report is then compiled for a GP regarding those medication management issues. I'm going to take the example of the HMR in a little bit more detail in terms of what is required to be followed is set out at page 20 of the written submissions under the subheading: "The regulation of HMRs." So domain 7 of the National Competency Standards regulates the requirements for the HMRs and they require the completion of a successful communication model and I'll come to the accreditation requirements in a moment.

PN3316

The HMR was included in the medical benefits schedule since 2001 and that comes from Professor Krass' report. I have a copy and I've shown it to my learned friend and I understand there is no objection to it being handed up, but which is the relevant note to the Medicare Benefits Schedule to the Health Insurance Act 1973 which sets out basically requirements for getting the Medicare rebate. I don't propose to take the Bench to that in any further detail, but just note that that was introduced since 2001.

PN3317

So the PSA guidelines actually require a 12-step process which is required to be followed in respect of HMRs: aim and focus, consumer identification, consumer eligibility, GP assessment, consumer consent, HMR service delivery, HMR interview, medication related problems. The report itself, a follow-up medication management plan and the payment issues and the guidelines set out each of those steps in detail.

PN3318

So in that regard, it's a complex process. It's complex and it involves a number of those cognitive pharmaceutical services to be deployed - that was the evidence of Professor Krass - that require an intellectual component. It requires a high degree of knowledge of medications themselves and their interactions and it requires that knowledge to be deployed in respect of people who actually require a medication management review plan and, as the Bench could imagine, within nursing homes, elderly people with complex conditions on numerous medications with the potential for many interactions. So it's got a high level of cognitive skill involved in that level, but it also requires the intellectual component of the communication skills. So that is both with the patient and the doctors, in particular.

PN3319

In respect of the accreditation process, if the Bench goes back to page 23, and I apologise because we dealt with the medication management reviews as, sort of, a subset of these various new introductory ways in which pharmacy is being done within that section and then we have dealt with it in respect of the claim at the end. So in respect of the accreditation process, it's the Australian Association of Consultant Pharmacy, otherwise known as the AACP, who is approved to accredit pharmacists to provide these services, and that's found in Professor Krass' report.

PN3320

So it's a two-stage process. There's a preparatory stage process which requires the candidate to pass a communication model. Then if the candidate follows that, there is then a further two-stage accreditation process. The first involves, you know, successfully completing 40 clinical multiple choice assessment questions, and the second requires four hypothetical case studies. Ms Madden gave evidence about the complexity involved in that process in respect of what the hypothetical case studies involved in terms of various complex situations that might arise and how you would interact with the doctors and so on and so forth. It's also a long process. Her evidence was that it took at least a year to complete.

PN3321

Then there are three elements of reaccreditation. One is the payment of the reaccreditation licence fees annually and just in respect of the cost becoming accredited itself, and this doesn't include - because we don't have evidence of what the prerequisite communication model, what the costs of that would be, but the accreditation process of the AACP itself is just over $1,800 and that can be found in exhibit 10. Then there is three elements of reaccreditation. So there's an annual fee in excess of $600. Then you have to successfully complete further clinical multiple choice questions every three years and you have to complete additional CPD annually. So the evidence is that it's 60 CPD points per year that is required instead of the 40 for pharmacists who are not accredited.

PN3322

Sorry to flick between the two. Well, sorry, before I do that, so in respect then of the work value reasons, in relation to the nature, it's both complex and involves a high deployment of CPS. In respect of the skill and responsibility, well, the skill is evident by the rigorous accreditation requirements. The responsibility is there in respect of being responsible for these complex medication management reviews for people who require that level of care. The Bench might look through the Medicare Benefits Schedule that I handed up to you at its leisure, but actually to get that money it requires an interaction with chronic disease and so on and so forth. So there's a level of responsibility involved or a significant level of responsibility involved.

PN3323

Then, further, in respect of the conditions under which the work is done, this is an environment in which the accredited pharmacists have to go out to people's homes or into residential facilities. So for all of those reasons, there are work value reasons which justify the increase. In respect of APESMA's claim, it could either be seen as an increase in the rates of pay as pharmacists who are currently accredited would then receive, but it justifies the new classification.

PN3324

In respect of the modern award objective, my leader will be speaking about the issue of what's fair and relevant in a moment. But I might just, sort of, touch upon it in respect of the specific example of accredited pharmacists. So back on page 20, it sets out the funding arrangements and, again, I'm taking the example of the HMRs. So the evidence of Professor Krass is that by 2000, relatively few pharmacists had established a practice involving medication reviews and a more patient-centred approach.

PN3325

In 2000, however, under the third CPA, community pharmacies were remunerated in respect of these services and they have been consistently funded under the CPA since 2000. So this is yet another example of where the pharmacies are getting money from the government to provide these services, but the pharmacists who have to undergo this rigorous accreditation process are not the beneficiaries of that additional money. So on the issue of fairness, within the modern award objective it is fair that these accredited pharmacies get recognition for that additional work that they deploy.

PN3326

It's also worth - I think there's one page of Professor Krass' report that really summarises her research in respect of HMRs and RMMRs and that is at page 121 of her report and I might actually just take the Bench to it. Yes, it's a one-page summary at page 121 and she also talks there - summarises a number of these broader societal benefits in respect of the provision of these services. I will just take one example. She refers to reduced health care resource utilisation costs in respect of HMRs and also in terms of patient outcome, that an RMMR program evaluation conducted in 2010 found that approximately - well, I'll say approximately 11,000 residents benefited from one or more positive health outcomes as a result of reviews conducted.

PN3327

So, in my submission, there is also a societal benefit which, again, as my leader has indicated, which is recognised under the CPA funding, that makes it fair and relevant that the applicant's claim in respect of accredited pharmacists be met.

PN3328

VICE PRESIDENT HATCHER: The definition on page 23 doesn't actually require you to be performing the work of an accredited pharmacist.

PN3329

MS KNOWLES: No. So the claim is that if the pharmacy is approved to provide the accreditation services and it employs a pharmacist who is accredited to do so, that that employer has the benefit of those employees' skills for deployment and in those circumstances the accredited pharmacist should be paid at a higher rate accordingly.

PN3330

VICE PRESIDENT HATCHER: You might have a pharmacy which carries out those reviews either by the owner or by one employed pharmacist who then employs a new pharmacist who happens to be accredited. On your definition, they would to pay the additional amount even though the pharmacy didn't want that person to do any of the work of an accredited pharmacist, this person who just brought with them the qualification.

PN3331

MS KNOWLES: The primary submission is that in those circumstances where the pharmacy is accredited and they employ someone who is accredited, they have available to them to deploy if needed and, therefore, that justifies a higher rate. I acknowledge, as my leader did in opening, that there's various ways of dealing with this issue. An alternative way, which is not APESMA's claim, might be an allowance that is linked to the provision of those services. But, in my submission, if the employer is able to provide the services and they employ someone who can do so, they have the benefit.

PN3332

VICE PRESIDENT HATCHER: Right.

PN3333

MR IRVING: Striking a fair and relevant rate is the core of the task and one of the most difficult and mystifying parts of the task. I'm going to get on to some of the specific comparators and where we're at in terms of that in a minute. But before I do, there's a couple of points I want to make just about fairness in this context.

PN3334

VICE PRESIDENT HATCHER: How much longer do you think you will be, Mr Irving?

PN3335

MR IRVING: 15 minutes tops. What has occurred in the context of this sector is that a vast amount of funding has been given by taxpayers to the employers to have work done in a particular way by the employees. I narrow it down to just one particular enterprise. If there was a circumstance in which the government had agreed with the employer to give $2,000 in a week for the pharmacist to perform the work and five years later they came back and reached an agreement that there be $3,000 paid for the pharmacist to perform that work and five years later, $5,000 for the pharmacist to perform that work, yet the employer retains that money and does never and never increases the rate of pay of the pharmacist, then one might ask in the context of determining what's a fair rate of pay, one might take into account the fact that the funding has been given and retained by the pharmacy owners in that context.

PN3336

They have been given money by the government so that new services could be provided and the pharmacist have changed the work they've done so that those new services are delivered. The employers got the benefit of the change, but it has not had to share the reward that it's received from the Commonwealth and the taxpayer. It's an unusual sector in that respect in that it's largely driven by Commonwealth funding, yet the people who are performing the work aren't at the table in negotiating the rates that should be passed on to the workers. It's only the PGA who is at the table in that context.

PN3337

I have mentioned in paragraph 24, a number of the other considerations about labour market distribution and what's happened in relation to the funding in the same period as there's been stagnation in wages. But the state of play, as it currently is, is that pharmacists are the lowest paid graduates in Australia. Annexure AC-23 at page 40 sets out the starting wages of various types of graduates from engineers and teachers and social workers and psychologists, and it's not they're tipping a little bit under. We're talking about, I think, it's 10 per cent under the next lowest. The next lowest, I think, is creative arts graduates.

PN3338

VICE PRESIDENT HATCHER: That's by reference to market rates.

PN3339

MR IRVING: Yes.

PN3340

VICE PRESIDENT HATCHER: But in terms of award rates, what's the appropriate comparison?

PN3341

MR IRVING: When you compare it with someone like an enrolled nurse, I think the current rate of the interns, four-year degree, is about 10 per cent above the award rate for enrolled nurses who are Cert IV. The starting point for award - I should say that when you look at most of these graduate classifications, what is set out in the award rate, it's not close to what is actually paid out there in the industry. Teachers, for example, are all covered by EBAs and even in the private sector it's usually two per cent above the state award rate is the going rate. So there's a disparity between the starting salary of a teacher and what the award rate of pay is and nobody has for 25 years done a work valuation of these graduate rates because there's no just correlation between what's actually paid with these award rates and what's actually paid with these award rates in what are received by the employees.

PN3342

The only context in which that sort of thing occurs is in failed bargaining rounds in the public sector in, for example, South Australia about four years ago there was a work value case for all of the teachers and there was a consideration of what the appropriate rate of pay for a graduate teacher is in the public sector enterprise.

PN3343

VICE PRESIDENT HATCHER: That's a paid rates exercise. We're setting minimum safety net rates. So it's not our function to actually assert what each pharmacist should actually receive, but to set a minimum safety net rate. So I'm just trying to consider how you say this issue of market rates is relevant to setting a safety net rate.

PN3344

MR IRVING: It is more directly relevant in circumstances in which you've got award reliant sets of workers, award reliant not necessarily in the paid rate sense, but where you've got a significant sector who are paid at or near the award rate. For interns, for example, the median rate appears to be about 75 cents above the award rate. That's the median and there are significant numbers close to the award rate in the other classifications. There is also this reality, that in setting a fair rate, one has to take into account the fact that if the rate remains as low as it is or anywhere near as low as it is, it's simply cost effective just to walk away from pharmacy and retrain for a year and become an occupational therapist and it's the abandonment of - the rates are so low that the abandonment of the field is a sensible outcome for pharmacists.

PN3345

VICE PRESIDENT HATCHER: There's no evidence that there's a shortage of pharmacists to meet the available jobs, is there?

PN3346

MR IRVING: There's evidence that they're leaving and they're grossly dissatisfied with their rates of pay.

PN3347

VICE PRESIDENT HATCHER: That might be true, but, again, there's no evidence of a shortage of people to replace them.

PN3348

MR IRVING: That's true. I don't challenge that, your Honour. I don't know. I can't recollect whether or not Professor Krass gave the evidence that she has students who simply leave their pharmacy degree and then they just don't practice in pharmacy at all because they realise the rates of pay. I can't recollect whether or not that came out in the evidence or - it didn't. All right, well, if it didn't come out in the evidence, don't have regard to it. But the problem for early career pharmacists is a serious problem for the industry and for the community. One would want experienced pharmacists attending to the ill and at the moment we've got a situation where without pay points, without graduated increases where you have with other award based graduates, one reaches the top of the scale very quickly and in practice, the evidence is, that one stays at the same rate forever and a day.

PN3349

VICE PRESIDENT HATCHER: I mean, there are some public policy considerations there, but at the end of the day, how does this relate to work value? While I'm there, can I add this question. Your primary claim has significantly larger increases for people higher up in the higher classifications, but what evidence was there that their work value has changed to any greater degree than anybody lower down to justify that?

PN3350

MR IRVING: The claim is premised upon the restoration of the relativities from the last time the Commission considered it and I acknowledged in the opening that there is another alternative. An acceptable approach would be to increase the amounts of pay proportionately at each of the classification levels. I mean, there are problems - there are different problems at both ends of the scale. The problem at the bottom end of the scale is the rates of pay of graduate interns are below the award rates for teachers and nurses and occupational therapists and the like compared to other modern awards. At the upper end of the scale, the rates of pay at the top end are of pharmacy managers, the problems are that what is happening is that the employees by their fourth to sixth year are earning an average of or a median of $32 an hour and by their 15th to 25th year are earning the same.

PN3351

VICE PRESIDENT HATCHER: The entry rate for a registered nurse starts lower, but they have, even at level 1, eight pay points which take them higher.

PN3352

MR IRVING: From recollection, the entry rate for a four-year trained nurse - - -

PN3353

VICE PRESIDENT HATCHER: Is 920.40.

PN3354

MR IRVING: Sorry, is nine?

PN3355

VICE PRESIDENT HATCHER: $920.40.

PN3356

MR IRVING: My recollection was wrong about that then. I must say I looked at a dozen different classifications to see what is paid at these various levels, but one of the difficulties, of course, with that rate is it's not the rate that's paid to anyone or close to the rate that's paid to anyone, so nobody has looked for 10 or 15 years about whether or not it's a proper assessment.

PN3357

VICE PRESIDENT HATCHER: But the Nurses' Award does provide that you can progress through pay points even at level 1 to 1,059.30.

PN3358

MR IRVING: I beg your pardon, your Honour?

PN3359

VICE PRESIDENT HATCHER: The Nurses' Award provides that for a registered nurse within the level 1 classification, that is the bottom classification, there's eight pay points so that you can progress in the same classification up to 1,059.30, which is obviously higher than the basic pharmacy rate.

PN3360

MR IRVING: Yes, and with pharmacists, of course, they've got the continuing education obligations of CPDs, et cetera, which are rather than - at the end of day, I suppose, one of the difficulties is all comparisons are problematic. No comparison is perfect, but what is striking is, first, the extraordinary low rate of pay for interns. Second, the fact that the average salary of teachers is - the average starting salary of teachers is greater than the average wage actually paid to a 20-year experienced pharmacists, pharmacy manager. I mean, that's extraordinary. So there is a huge disconnect between what is paid in other professions and what is paid in this profession. There are relevant comparators.

PN3361

I appreciate that the Commission has a function of setting minimum fair rates, but a minimum fair rate for these employees would take into account all the changes that we have identified and it wouldn't be beholden to and bound to what is recorded as the minimum rate for other classifications that isn't, in reality, paid to nurses and teachers, et cetera. The other context in which fairness is assessed is the reality that wages are going down and we're heading towards more workers becoming closer to the award because their wages have historically been going down in that the last five years, there has been a one per cent decrease in the actual average rate of pay for pharmacists. In the last 20 years, compared with CPI, there's been an 11.6 per cent decrease, and compared with average wage increases in society over the last 20 years, it's gone down 21.5 per cent. At the same time as these changes have occurred, more and more people are getting less and less.

PN3362

VICE PRESIDENT HATCHER: I think the evidence was that most of that had occurred more recently, in the last five or six years. The decrease, it wasn't a phenomenon in the first decade. It had occurred in the current decade. Am I correct in that?

PN3363

MR IRVING: I think that, well, the notes that I have taken from Crowther were a real decrease, this is for pharmacist's rate, 5.5 per cent over five, and 11.59 per cent over 20. It might well have been that over 10, it was almost all of that and if it's more recent, then it's more telling.

PN3364

VICE PRESIDENT HATCHER: What does evidence attribute that to?

PN3365

MR IRVING: Why has there been a decrease in wages?

PN3366

VICE PRESIDENT HATCHER: Are the universities pumping out more people? Is that the reason or - - -

PN3367

MR IRVING: Well, there has been a change in the market structure in terms of the increase of discount pharmacies which are employing people at low rates of pay. That the relocation rules and ownership rules and the limits on a fair and effective operation of the market have continued to be stymied. All of those things manage to decrease and distort the market or decrease wages and distort the market. The rates of pay at the upper end,, the other thing I should mention, need to be set at a level that prevents the leakage that is occurring for older and more experienced pharmacists. That is the drop off the cliff.

PN3368

VICE PRESIDENT HATCHER: But that's not a work value consideration, is it?

PN3369

MR IRVING: No, but it's a setting of a fair rate of pay in response to the changes that have occurred. I mean, it's - - -

PN3370

VICE PRESIDENT HATCHER: But the adjustment has to be justified by the work value considerations, not justified for other reasons, simply because there has been a change of work value. You can't say, for example, there's been a one per cent change in work value, but we're going to increase wages by 10 per cent for all these other reasons, can you?

PN3371

MR IRVING: Yes, okay, I've got you. Excuse me for a second. Unless the Commission has anything further, they're out submissions.

PN3372

VICE PRESIDENT HATCHER: All right. We might take a break for approximately 20 minutes.

SHORT ADJOURNMENT�� [11.26 AM]

RESUMED�� [11.57 AM]

PN3373

VICE PRESIDENT HATCHER: Mr Seck.

PN3374

MR IRVING: Sorry, there's one other matter that I wish to mention briefly.

PN3375

VICE PRESIDENT HATCHER: Yes, Mr Irving.

PN3376

MR IRVING: It arises from subsection 4 of 156 and it's this. One is seeking to set a fair rate by reference to reasons justifying the amount related to (c) the conditions under which the work is done. One of the conditions under which the work is done is the industry structure that prevails in this sector.

PN3377

VICE PRESIDENT HATCHER: I'm not sure that's what it refers to in the traditional work value context, is it?

PN3378

MR IRVING: The conditions are not just the hot and cold. The conditions include the things that, for example, the legislative scheme in which it operates and the way in which the work is performed, for example, if the employer has to be or cannot be a natural employee or has to be and cannot be a partnership, or has to be and not be of this size or that size. Those are parts of the conditions under which the work is done. We say it's an expansive reading. It's a reading that does give the right to the Commission and the obligation to the Commission to consider how the industry structure might affect the work value reasons and it might affect it in this way. If one had an industry which made collective bargaining, structurally it made collective bargaining extremely difficult, then that might affect how one sets a fair rate of pay. For example, in this case, we've got tiny employers, 1.5 average - --

PN3379

VICE PRESIDENT HATCHER: I was going to ask you about that. Was there a figure of the number of employed pharmacists in the industry?

PN3380

MR IRVING: Yes.

PN3381

VICE PRESIDENT HATCHER: What was that? What was that?

PN3382

MR IRVING: Sorry, employed pharmacists in the industry?

PN3383

VICE PRESIDENT HATCHER: Or just pharmacists in the industry.

PN3384

MR IRVING: Yes, tab 1, exhibit 19. 30,000, including non-practising, 28,000-odd, including just for practising.

PN3385

VICE PRESIDENT HATCHER: We know there's 5,000-plus pharmacies.

PN3386

MR IRVING: Yes.

PN3387

VICE PRESIDENT HATCHER: That 1.5 number can't be right, can it?

PN3388

MR SECK: I agree.

PN3389

MR IRVING: Yes, well, hold on.

PN3390

DEPUTY PRESIDENT DEAN: Does it include hospitals?

PN3391

MR IRVING: I haven't done the sums up until that point, obviously.

PN3392

VICE PRESIDENT HATCHER: I mean, it doesn't take away the fact that we're dealing with, sort of, micro-businesses, even if it's five or six.

PN3393

MR IRVING: Yes.

PN3394

VICE PRESIDENT HATCHER: But that 1.5 doesn't seem to be right to me.

PN3395

MR IRVING: Maybe it's the median rather than the mean. I can't take that any further, but we do know this. Tiny employers, disparate locations, making enterprise bargaining extremely difficult. As opposed to the other rates that one is - other professional rates in which workers are engaged, like teachers and nurses and physios, et cetera, their industry structure is very different. It allows for the opportunity. It practically allows for the opportunity to collectively bargain and so it is that it's turned out that their rates are some $20,000 above their minimum award rates.

PN3396

When setting a fair rate for an industry where the conditions or where the conditions of the industry are such that bargaining is impracticable or are well-nigh impossible, then a fair rate may well be considerably above the rate that is set for other professionals similarly skilled who operate in industries where it's possible to engage in collective bargaining. That was the additional point.

PN3397

VICE PRESIDENT HATCHER: Thank you.

PN3398

MR IRVING: Thank you.

PN3399

VICE PRESIDENT HATCHER: Mr Seck.

PN3400

MR SECK: Thank you, your Honour. I have also got some written submissions, so might I provide them to the Bench. They're not as well cross-referenced as Mr Irving's submissions, but what I'll endeavour to do during the course of my oral address is to take the Bench to the key parts of the evidence which deal with the points we wish to make in our submissions. The starting point which APESMA had this morning was that the key part of this case is about the roles and responsibilities of pharmacists and how they have changed over time.

PN3401

The Guild's position is that it acknowledges there have been changes in pharmacy practice. That is evident from all the evidence in this case. It does not deny that as a result of medical advances, technological change, changes in market conditions and changes in community health, that pharmacy practice, as it was in 1998 or as it was even in 2005, has not changed to now. That is, in fact, a feature of any professional practice, whether that be as a pharmacist, a medical practitioner, an architect or a veterinarian, there will always be changes by dint of scientific advancement and technological change which will impact upon the nature of work and the skills and responsibilities which are deployed in it at a micro level.

PN3402

However, it is also a feature of professional practice that there are a core set of skills which are deployed to a broad range of circumstances and that makes pharmacists and other professionals slightly different to workers who might work in process oriented jobs where there is less deployment of skills or where there is an exclusive body of knowledge, skills and responsibilities which are, in effect, owned by that profession to be deployed to a broad range of circumstances. In my respectful submission, one thing which the Commission has to be mindful of is that pharmacists should not be seen as clerks or should not be seen as labourers. They're obviously in a different category and one must appreciate those characteristics in assessing the work value of the jobs that they perform. Indeed, that observation has been made in the context of the medical industry beforehand.

PN3403

President Fisher of the Industrial Relations Commission of New South Wales and of the then Industrial Court of New South Wales in Re Medical Officers - Hospital Specialists (State) Award 1990, 33 IR 79 at 84, noted in considering work value principles as it was to be applied to medical officers within hospitals;

PN3404

One of the problems with the application of the "strict test" to professional or managerial employment lies in the nature of change. Change must be accommodated, being an essential part of what professional practice is all about. It does not follow therefore without more, that changes, even spectacular changes, necessarily fall within the work value principle.

PN3405

That is a neat summary of the position that the Guild takes in this case, that we acknowledge there are changes. In fact, there have been changes every year since pharmacists have existed. The fact that this is a Guild who are representing pharmacy owners is an indication of the historical origins of pharmacy practice. Before pharmacists existed, there were apothecaries. They were engaged by guilds and by the very nature of a guild, it sought to control the profession by imposing professional standards, but also creating ownership, in effect, of a particular set of skills which were to be engaged in by a particular class of people.

PN3406

VICE PRESIDENT HATCHER: And to limit those entering into it.

PN3407

MR IRVING: We accept that there are limitations and the limitations are now imposed by government as well as by professional standards developed by various professional bodies. That's no different to any other professional organisation. But what it recognises is that it's the dominion over those particular skills and responsibilities which are the key in defining the profession deployed over a wide range of circumstances. One would be mistaken from listening to Mr Irving this morning on behalf of APESMA that this is, in effect, either for an arbitration of a paid rates award or a low paid authorisation in dealing with a class of employees who are unable to look after themselves. That's not the case.

PN3408

Quite plainly, this is an application for the establishment of fair and relevant minimum conditions of employment and one has to look at it in conjunction with the National Employment Standards by reference to work value justifications. There are two ways that one determines work value traditionally. One way would be to look at a date in point and then compare whether or not there's been any increase in work value from one point in time to another point in time. That is the approach we had understood APESMA was advancing based on its submissions and much of the evidence, in fact, all of the evidence which we deployed was sought to address the primary submission or, in fact, the sole submission at least initially that was being put by APESMA.

PN3409

Another approach, and it's an approach which the Full Bench adopted in a real estate industry case is to compare it against an external benchmark in another award and determine whether or not the value of that particular classification which hasn't been valued beforehand is undervalued relative to a comparable classification.

PN3410

VICE PRESIDENT HATCHER: Has the work in this award ever been valued?

PN3411

MR SECK: I want to come back to that because I understand what your Honour said earlier in terms of whether or not it's been valued. We say it has been valued. Perhaps, it hasn't been done by reference to detailed reasons and justifications advanced by Commissioner O'Shea, but certainly it has been valued and I want to take the Bench to Commissioner O'Shea's decision in trying to explain what he did.

PN3412

VICE PRESIDENT HATCHER: Commissioner O'Shea's decision seemed to invoke the first award's principle which was the notion that when you made a first award it was primarily based on existing market rates, which is an antithesis of a work valuation exercise.

PN3413

MR SECK: Two points there, your Honour, and I'll come back to it in more detail. Commissioner O'Shea wasn't operating in a vacuum there because there was existing state regulation of award conditions in Victoria at the time. So the Victorian Industrial Relations Commission had its own minimum rates award that applied to pharmacists and so that was one consideration taken into account by the Commissioner in determining the rates. Secondly, I think the case law does suggest that there is sometimes an overlap in determining the appropriate rates of pay for classifications in relation to a first award.

PN3414

So the first point I wish to make is that I don't think it was truly a first award in the sense it was dealing with the Greenfields industry because there was existing regulation. Secondly, when one looks at the approach adopted and applied by Commissioner O'Shea, he truly wasn't looking at market rates. He was actually looking at minimum rates and that's apparent when one looks at how he approached the task at hand. So I want to take the Commission in a bit more detail to how Commissioner O'Shea approached the issue.

PN3415

Can I then deal with the question about the appropriate approach for dealing with work value applications. The test of significant net addition is not really a test in itself and it's wrong to put it as a test. What we do say, however, is that it's an indication of the approach the Commission will take for determining whether or not the statutory requirements under section 156(4) have been satisfied. There are a number of considerations which go to demonstrating that point and I want to take the Commission to that and I summarise this in paragraph 7 starting on page 2 of my submissions.

PN3416

The first point to note, and I think the point is axiomatic, is that section 154(4) has to be construed in its historical industrial context as properly acknowledge by Mr Irving this morning. Namely, that the expression 'work value' and the considerations set out in paragraphs (a) to (c) of section 154(4) reflect principle 6 in the 2004 safety net wage fixing principles and it - - -

PN3417

VICE PRESIDENT HATCHER: I'm not sure about that because the history goes a lot further back than those principles.

PN3418

MR SECK: I accept that. I accept that and it's - - -

PN3419

VICE PRESIDENT HATCHER: The classic formulation is often said to be that decision of Senior Commissioner, I think it was Taylor in 1968.

PN3420

MR SECK: That's true, and I think the Bench dealt with that in the Real Estate Industry Award. The principles are, in fact, neatly summarised in the ABI's submission and I think there are multiple factors which Senior Commissioner Taylor listed which needed to be relevant to assessing work values. So it goes further back, as you say, Vice President, beyond 2004 because that's a distillation of the various principles which have developed over a period of time, at least since the 1970s and 1980s. So we say that you cannot construe the expression 'work value' in the absence of looking at the historical context in which those principles have developed over a period of time.

PN3421

The second point to note is that four-yearly preliminary jurisdictional issues case at paragraph 60 talked about the need to ensure that there's a stable modern award system which is one of the considerations which must be taken into account in determining whether or not the modern award objective has been satisfied in making an award or varying an award. In achieving that particular objective, the Commission said a party seeking to vary a modern award must advance a merit argument in support of the proposed variation accompanied by probative evidence properly directed to demonstrating the facts supporting the proposed variation.

PN3422

In my respectful submission, the test of significant net addition which is used in principle 6 and reflects a distillation of the principles that have evolved over a period of time is not dissimilar to that issue. That is, what it's doing is saying if you are going to demonstrate or justify that there should be a variation to the award, in particular, the wage rates, it has to be based or justified on a merit argument and it has to be based on probative evidence demonstrating that there's been a change to the work value. In my respectful submission, the approach of significant net addition is consistent with the approach the Commission has been adopting in relation to the four yearly review.

PN3423

VICE PRESIDENT HATCHER: Is this submission being advanced on a statutory construction?

PN3424

MR SECK: Yes, statutory construction.

PN3425

VICE PRESIDENT HATCHER: So what are we construing in section 156(4) which gives rise to this rate.

PN3426

MR SECK: What we're construing is nature of work. So might I just find that. I think I've put 154 in my submissions. It should be 156, obviously. So that's my error. So what we're looking at is the nature of work. So if one is looking at - so the test - the language which is used in principle 6 is a significant net addition to the work. There has to be a change to the nature of work which is a significant net addition to work requirements. And so what we're saying is subsection (4)(a) when one is construing the justification - - -

PN3427

VICE PRESIDENT HATCHER: Construing what words?

PN3428

MR SECK: The nature of the work.

PN3429

VICE PRESIDENT HATCHER: That's fairly obvious. What's the doubt about the meaning of that?

PN3430

MR SECK: There's no doubt about it. It's just really trying to give content to the standard which would need to be demonstrated in order to show there has been a change to the nature of work.

PN3431

VICE PRESIDENT HATCHER: But that's trying to impose a decision or policy consideration on the statute, isn't it? I mean, I'm not sure what you're saying we are actually construing in 156(4).

PN3432

MR SECK: Perhaps this construction is perhaps the wrong way of putting it. What I'm saying is that the Commission obviously has a power in determining whether or not there is a justification for a change in wages.

PN3433

VICE PRESIDENT HATCHER: Well, it's not really a power. I think it's a limitation, isn't it, that in the conduct before you review, we can only vary minimum wages if we're satisfied it's justified by work value reasons. So we can't do it for other reasons. Then 156(4) defines that and then the reasons only have to relate to any of the three identified subject matters.

PN3434

MR SECK: Your Honour has put it much more clearly than I have, but the - - -

PN3435

VICE PRESIDENT HATCHER: I'm not understanding where all this is coming from.

PN3436

MR SECK: No, I absolutely understand what your Honour is trying to get me to say and, perhaps, I'm probably not articulating it clearly enough is that when one is trying to look at the justification which is required, which is related to the nature of work, it is not inconsistent to look at whether or not there is a significant net addition because it's consistent with how the Commission has conventionally approached questions of work value. The reason why I say that, your Honour, is that the preliminary jurisdictional issues talk about what's necessary to justify that. What's necessary to justify a variation in the award and I accept 156(4) is a limitation on the exercise of the power, but it also directs to how the power should be exercised if the power is to be exercised.

PN3437

That is one has to look at the work value issues to demonstrate that there is a basis for the variation. So, in my submission, whilst there's a limitation, it also informs how and the manner in which the Commission should approach the task in determining whether or not there is a work value justification for increasing wages. That is consistent with various cases in the Commission in both the four yearly review and in other contexts as well that historical considerations by reference to the - in determining work value have applied and I have listed that in paragraph (c). Can I then deal with the question of the datum point?

PN3438

VICE PRESIDENT HATCHER: Do you know how many of these decisions adopted the significant net addition test that you posit?

PN3439

MR SECK: I think what I can say, your Honour, is that the equal remuneration decision refers to the significant net addition test as being one of the appropriate benchmarks for determining whether or not equal pay is justified. I think the decision which your Honour was on an application by United Voice and the Australian Education Union refers to the principles of Commissioner Taylor which comes to encapsulate principle 6.

PN3440

VICE PRESIDENT HATCHER: The difficulty I have with this is principle 6 has its own historical context based upon the centralised wage fixing system which sought to limit wage increases over a certain period. That is it imposed a whole series of constraints in that historical context which had not previously been there in the work value context.

PN3441

MR SECK: In my submission, those constraints would equally apply here and that's - - -

PN3442

VICE PRESIDENT HATCHER: But why?

PN3443

MR SECK: Partly because work value is defined by reference to - is a historical term which needs to be understood in that context. Secondly, it's consistent with a stable modern award system. If we're going to use a different test now for determining the basis for work value justifications to the one which had been historically adopted and is the basis for the classification and wage fixing for a whole range of awards which have been inherited from the predecessor to this Commission and in state and territory Commissions then, in my submission, that would have an effect which is the antithesis to a stable modern award system and that's a relevant consideration in understanding how the Commission should construe or understand its task in determining whether or not there's a justification for a wage increase by reference to work value considerations.

PN3444

Those historical considerations have been taken into account in determining wage increases by reference to work value in the Pastoral Industry Award, amongst others. The Real Estate Industry case which your Honours are obviously aware was a slightly different case because that was not based on a change to work value by reference to a datum point because, as your Honour pointed out, in that case there was no proper work value assessment which was done in the Real Estate Industry case. So that was a case of determining whether or not there had been undervaluation by reference to an external classification or benchmark. That's not the case which I understand is being advanced here by APESMA.

PN3445

Can I then deal with the decision of Commissioner O'Shea. So can I invite the Bench to go Commissioner O'Shea's decision which I handed up earlier today. The Bench will see Commissioner O'Shea's decision in 1996 related to the making of the Community Pharmacy Victorian Interim Award as I stated earlier. And there had been a number of matters which had been dealt with by consent between the parties, but there were a number of outstanding issues which were leave reserved matters including the questions of rates of pay and classifications.

PN3446

The context in which that occurred was that in Victoria there was a Chemist Shops Award and I hope your Honour has the same copy as I have, but at the bottom of page - the Bench has the same copy as I have, but at the bottom of page 3, I think there's a reference to the Chemist Shops Award of the Full Bench of the Victorian Commission. You will see that that decision which, I think, just looking at the number, is D91, it was a decision in 1991, actually accepted a proposition that pharmacists should be regarded as a scientist and there was evidence to support that proposition which is described as comprehensive and well-researched and there was an opposition expressed to that claim.

PN3447

The approach which was taken by Commissioner O'Shea in this case was not a dissimilar approach. So just moving up a few paragraphs to about point 6 on - sorry, I should go back up to about point 3 on the page.

PN3448

VICE PRESIDENT HATCHER: Page 4?

PN3449

MR SECK: This is page 3, Vice President. You will see that in the third paragraph it says: "The classification salary issue is argued within the framework of the SPA submissions." just pausing there, the SPA is the Salaried Pharmacists Association, one of the predecessor organisations to APESMA covering salaried pharmacists. "For parity with professional scientists, VECCI for a framework of relativities which retained the features of tiers within 'in charge and managerial positions', supported by exhibit VECCI3." So there was a document presented in support of it, whether or not it was, in fact, evidence or something else is a bit unclear. Then it says the structure of salaries and relativities favoured by VECCI are set out in the particular exhibit.

PN3450

As you pointed out, Vice President, about halfway down the page, the fourth paragraph after the heading, "Conclusions", the Commissioner acknowledged that the consideration needs to be assessed against the requirements of the Commission's wage fixing principles and he places particular significance on the first award principle. Then he says:

PN3451

Noting this is a minimum rates award, we will fix the matters at issue so the award meets the needs of the particular industry or the enterprise ensuring that employer's interests are also properly taken into account. It is also relevant for the Commission to ensure appropriate structured efficiency principles apply. I include here considerations of proper alignment by way of application of the minimum rates adjustment process.

PN3452

So just pausing there, I think what that demonstrates, Vice President, is that whilst there was some significance applied to the question of the first award principles, Commissioner O'Shea was also emphasising that this was a minimum rates award and it would be by reference to proper alignment. So it would be considering proper alignment by way of application of the minimum rates adjustment process. So it's plain that Commissioner O'Shea was seeking to make and had made a minimum rates award. That becomes clearer when he refers to the Chemist Shops Award and the way he goes about it is to say, well, excepting that the parties considered that professional scientists are an appropriate comparator, then I can use the Metal Industry Award to align the minimum rates for pharmacists working in the Victorian pharmacy industry and that's the approach which Commissioner O'Shea adopts on page 4.

PN3453

The Commission will see, just going down the top of the page, Commissioner O'Shea says about paragraph 5:

PN3454

An acceptance of the relevance of Part 4 of the Metal Industry Award does not necessarily mean a direct comparison or a direct transposition of rates between the two areas of skills. It does, however, provide the Commission with a strong reference point for an assessment of appropriate rates. A further reference point, given the history and likely development in these proceedings are rates for like work elsewhere. First award principles allow the Commission to have regard for a fair variety of factors in assessing what are fair and reasonable minimum rates vis-�-vis other awards and relative skills and responsibilities.

PN3455

So Commissioner O'Shea was saying, "Well, I'm going to look at another minimum rates award here, part 4 of the Metal Industry Award, and I'm going to have regard to those particular rates in trying to work out whether or not there's like work in determining the work value of the particular pharmacist in the classifications and then try to draw some line of comparability." So that's generally the approach with Commissioner O'Shea adopts and he sets out how he goes about doing that in the following paragraphs and, in effect, what he says is, "I'm going to fix pharmacists at 140 per cent of C10", and that's set out on page 5, and then there are corresponding increases depending on the nature of the position and seniority involved set out about halfway down the page.

PN3456

The other thing to note is that the Commissioner as well looked at interstate comparisons in other pharmacy awards. So that's apparent when one looks at paragraph 3 on page 4 and paragraphs 6 and 7. So paragraph - - -

PN3457

VICE PRESIDENT HATCHER: If this decision is to be relied upon as establishing from the outset what is a rate which fairly reflects the value of the work and assuming we accept your submission that nothing has changed, we should be looking at what amount is 140 per cent of the tradesperson's rate. Is that the logic where this goes?

PN3458

MR SECK: If that's the datum point which is being - I don't believe my learned friend is seeking to try draw comparability with professional scientists, but that was certainly the original - - -

PN3459

VICE PRESIDENT HATCHER: But you're saying the work value was properly established as part of that process, nothing has changed since, therefore, we don't need to do anything. But if this is the basis upon which work value is assessed, don't we need to look at whether the rates today, for example, are 140 per cent of the tradesperson's rate?

PN3460

MR SECK: That's certainly one way of doing it. Another way of doing it would be to say, "Let's try to measure the change between 1998 or 1996, depending on the datum point, and now", and that's the approach which is being advanced by APESMA. But if there is a change to saying, "Let's benchmark it against an external award", which I hadn't understood was the approach being put forward by the union, then that would be one award to look at and one classification to look at. I accept that. It's the obvious one given it was the one used in 1996.

PN3461

VICE PRESIDENT HATCHER: I'm just trying to follow this. In the third last paragraph on page 4, it refers to a pharmacist second year and thereafter classification. What was that?

PN3462

MR SECK: I think when one looks at the award, there is a second year classification under the Pharmacy Industry Award. I don't have that in front of me. I might be wrong. I had thought there was a second year before. It's years of experience. I don't know if it says "thereafter" under the award, but from my recollection, Vice President, I think there's a second year tier as well. I'll have to actually check. It's after the intern year. I apologise, I don't have a copy of the award with me here, but I might get that checked. Can I come back to that, your Honour? I might get my instructing solicitor to check that, but my understanding is there was a second year tier.

PN3463

VICE PRESIDENT HATCHER: There's the intern rate and then there's simply the pharmacist rate. Mr Irving will tell me if I'm wrong. So am I to read this as saying the 140 per cent is meant to be the intern's rate?

PN3464

MR SECK: I think that's right and that's how I had understood it.

PN3465

VICE PRESIDENT HATCHER: Then 150 per cent would be the base pharmacist rate.

PN3466

MR SECK: Base pharmacist rate and then one moves to pharmacist in charge, pharmacist manager. Can I just note as well that below that table, Commissioner O'Shea notes that nothing had been put in the proceedings to persuade the Commission that the percentages for the pharmacists' classification which currently apply to pharmacy trainees in the interim award should be altered. So there appears to be, and I probably should have checked this beforehand, a pharmacist trainee position under the award.

PN3467

VICE PRESIDENT HATCHER: There is currently a pharmacy student's classification based on first through to fourth year of course.

PN3468

MR SECK: That might be the equivalent.

PN3469

VICE PRESIDENT HATCHER: Yes.

PN3470

MR SECK: I might have to check that.

PN3471

VICE PRESIDENT HATCHER: Yes, go on, Mr Seck.

PN3472

MR SECK: Your Honour will then see that just in the last paragraph of the page, the PGA submission is that salaries and penalty rates should be considered together in an integrated way in that penalty rates and classification structures are inextricably linked. It's not apparent to me that the Commission adopted that submission and I just wish to draw that to the Commission's attention.

PN3473

VICE PRESIDENT HATCHER: I'm sorry, Mr Seck, where was that?

PN3474

MR SECK: So the last paragraph on my page 4 which says: "PGA salaries, i.e. in an integrated way."

PN3475

VICE PRESIDENT HATCHER: Yes.

PN3476

MR SECK: So I simply note that just to point out that it might be, if that approach was taken, suggested that the rates weren't arbitrated in a true work value way because it was treated as part of an integrated package and there might be an impression created when one reads the rest of the decision it's treated as an integrated package. But for my part, the way I had read the approach taken by Commissioner O'Shea was to deal with the classifications and rates contained and minimum rates as a discrete issue from the other issues. Can I note what happened after that - - -

PN3477

VICE PRESIDENT HATCHER: Just before you go on, at page 5, the third paragraph, the pharmacist in charge is set at 160 per cent of the tradesperson rate and then there's a reference to the middle tier of the pharmacist in charge. What's that? Is that the pharmacy manager?

PN3478

MR SECK: I think the answer is "No".

PN3479

VICE PRESIDENT HATCHER: I see. If you look at the bottom of the page, there was - - -

PN3480

MR SECK: Yes, look at the bottom, there are three tiers, your Honour will see, 160, 170, 180.

PN3481

VICE PRESIDENT HATCHER: So what happened to those? That is, they're not in the award anymore.

PN3482

MR SECK: I think they may have been collapsed because during - - -

PN3483

VICE PRESIDENT HATCHER: When did that happen?

PN3484

MR SECK: I think the answer to your Honour's question is that during the creation of the modern awards, there was a collapsing of various classifications when the various state awards were brought together with the national award which was obviously then binding upon response to the award and as part of that certain classifications were, in effect, eliminated. That's my understanding. My learned friend indicates that he thinks it collapsed into the category of experienced pharmacist which is now contained in the Pharmacy Industry Award.

PN3485

VICE PRESIDENT HATCHER: But what about the pharmacist manager?

PN3486

MR SECK: That might be now pharmacist in charge. Sorry, you're right. I'm not sure what the - so there is a pharmacy manager position under the award, under the current award. So those three tiers would have been collapsed into one.

PN3487

VICE PRESIDENT HATCHER: Do we know which rate survived?

PN3488

MR SECK: I don't know that off the top of my head, but I do think there is evidence on that in terms of which one survived because I may have done that - undertook that task for the purposes of the penalty rates case. So if the Bench would be assisted by me going back and trying to find that homework which I did on the last occasion, I can provide it on note to the Commission on that issue.

PN3489

VICE PRESIDENT HATCHER: All right.

PN3490

MR SECK: But I can't guarantee that my recollection is completely clear on this. So if the Bench will allow me to prepare a short note. If I do find any research, I can try to provide that. But certainly I think the task I did was I looked at the various state and territory awards and I looked at the classifications and tried to determine which classification matched up with the tiers contained in the Federal Award. What happened after the - - -

PN3491

VICE PRESIDENT HATCHER: Sorry, before we move on, is there any doubt that in this decision there was no evidence adduced as to the work of pharmacists?

PN3492

MR SECK: I don't know if I'd say there was no evidence adduced only because there's references to, for example, if you go to page 3, Vice President, about point 6 on the page, Commissioner O'Shea refers to on the basis of the material before it, the Commission accepts the submissions of VECCI. So it appears that the Commissioner had material before him in determining the appropriate rates. Now, it's true that he doesn't actually go through the evidence and analyse the evidence in detail to demonstrate how he actually came to his view. But it does appear he had material before him in order to provide a basis for his determination.

PN3493

VICE PRESIDENT HATCHER: I should note, perhaps this is more pertinent and you might want to follow this up, on page 2 under the heading, "Parties' submissions", there's a reference to the parties' positions being in transcript and in exhibits, and then it says: "The parties also relied upon some material and evidence in earlier proceedings before Deputy President Drake."

PN3494

MR SECK: Yes, I do have it. I do have a copy of Commissioner Drake's decision which I haven't actually brought copies of. Do I have a copy of it? I do have copies of Commissioner Drake's decision, in fact, so I can hand that up. So Commissioner Drake's decision was, in effect, the starting point for the making of an interim award which covered pharmacies in Victoria and based on, in effect, a consent position, as I understood it, Senior Deputy President Drake made an interim award and for those matters which couldn't be determined, that was dealt with as a leave reserved issue. The Commission will see that, I think, on page 3, there's references to evidence.

PN3495

VICE PRESIDENT HATCHER: On page 2.

PN3496

MR SECK: I hope the Commission has the same as I do. I've got seven pages. Is that right?

PN3497

VICE PRESIDENT HATCHER: We've got six.

PN3498

MR SECK: All right. Let me find it.

PN3499

VICE PRESIDENT HATCHER: There's evidence of a Mr Warren from PGA.

PN3500

MR SECK: Correct.

PN3501

VICE PRESIDENT HATCHER: And Mr Lunsden.

PN3502

MR SECK: So then what - - -

PN3503

VICE PRESIDENT HATCHER: There's a summary.

PN3504

MR SECK: Yes.

PN3505

VICE PRESIDENT HATCHER: But it seems to be mainly about trading hours.

PN3506

MR SECK: That's so. That's not to say there wasn't other evidence which was before Senior Deputy President Drake which was not relevant to those issues which was relied upon by Commissioner O'Shea in coming to his view, but most of it was related to hours of work. I think if one goes over to page 5, the Commission will see under the heading, "Pharmacist second year of experience thereafter", there's considerations of various definitions or classifications, but that's probably as far as I can take the Commission.

PN3507

I should put our position is that we say that there's nothing in the decision of Commissioner O'Shea to suggest that he didn't have evidence before him and his conclusions weren't based on evidence. Given that it was a contested issue, I think there's a presumption that it was done based on a proper consideration of the principles and on a proper consideration of the material before Commissioner O'Shea. So in my respectful submission, this is not a case where work value has not been determined and in the absence of another compelling factor demonstrating Commissioner O'Shea did not have regard to the material and did not apply those principles, by reference to - by determining minimum rates, it should be accepted as the datum point which was ultimately - - -

PN3508

VICE PRESIDENT HATCHER: But there's no reference in the decision at all to the work value principle.

PN3509

MR SECK: He adopts an approach which is by reference to external classifications and then - - -

PN3510

VICE PRESIDENT HATCHER: There's a reference to the structural efficiency principle and, if I remember correctly, that contemplated the all work value changes up to a certain date in that process which was about 1989/1990 had been taken into account. There is just no indication that he applied the work value principle.

PN3511

MR SECK: In my submission, whilst he doesn't use the expression or words to the effect, "I'm applying the work value principles", what he does say is he assesses them against the requirements of the Commission's wage fixing principles. One can assume as part of assessing it against the requirements of the Commission's wage fixing principles, it also includes in that, work value principles. Then when one looks at the approach he actually takes, he says: "I'm going to look at whether or not there's any comparability in the nature of the work which is being performed" - in other words, work value - "against Part 4 of the Metal Industry Award and, in particular, the scientist classification." So whilst he doesn't use the word 'work value' in terms, when one steps through the process which he adopts, in my submission, it can be comfortably inferred that's the approach which Commissioner O'Shea was adopting.

PN3512

That's probably as high as I can put it, Vice President. I know, perhaps, it could have been clearer. It's certainly been the starting point for APESMA's submissions and we have not sought to gainsay that as the proposition. But if 1998 is no longer the datum point, then that obviously means: what are we assessing, against what benchmark. My learned friends haven't adopted or referred to a particular benchmark which they say is comparable to the various pharmacist classifications and if that - - -

PN3513

VICE PRESIDENT HATCHER: I mean, one approach, and this is, essentially, what you've - as you've made submissions about the Real Estate Award, approaches to say, look, whatever happened in the past, these rates have never correctly reflected the work value of the relevant occupational rate.

PN3514

MR SECK: That's certainly one way of doing it. However, one has to establish the comparable classification which the Full Bench did in the real estate industry case and that was the subject of evidence to try to demonstrate comparability between the - I can't remember the name of the particular real estate position, but I think it was a property supervisor or property sales manager against the relevant classification in the Clerks' Private Industry Award. So there was actually evidence, as I understood it, having read the decision, to try to make an assessment to say it has been undervalued, firstly, and we can tell it's undervalued because we're looking at the comparable classifications in the relevant award and, clearly, if it's comparable with this position, they're getting paid a lot less than the relevant comparable classification or comparable external classification in another award.

PN3515

If that task or if that was the exercise which we had to deal with then we would have come to this Commission with evidence saying, "You're using that classification, here are the differences between what the pharmacists do and what that particular external classification entails." That hasn't been the case that we've been asked to meet in this case and that's the disadvantage that we have, and had that actually been identified at the very start as the comparator, then the case would have been run very differently. And it'd be very late in the day and it would cause a significant amount of prejudice if the approach which is adopted is by reference to an external comparator where we don't know what the comparator is at the moment and we haven't had the opportunity to adduce evidence on those points.

PN3516

VICE PRESIDENT HATCHER: I mean, you've placed reliance upon Commissioner O'Shea's decisions as assessing the basis for work value against which nothing has changed since, what about those comparators? That is the one the Commissioner used to set the rate in the first place.

PN3517

MR SECK: That might be one way of doing it, but then I think we'd have to look at how the professional scientist classifications match up now. There may be differences in terms of the tasks or qualifications or the work environment. So I think to be fair, if we were going to do that task, and I accept that might be one way of doing it, I think it has to be something which is identified from the very start so we can turn our minds to those particular issues and see whether or not there are any relevant differences between the scientist classification under the relevant award and the pharmacists.

PN3518

VICE PRESIDENT HATCHER: You're not submitting that there's been a negative change in work value since 98, are you?

PN3519

MR SECK: No, not at all. Quite the contrary, we're saying that there has been a change, it's just not a relevant change to justify a wage increase based on work value considerations. So it would be a very, in my submission, unsatisfactory way of proceeding given that the parties have spent a lot of time and costs based on an understanding of the case and if it's to be opened up again based on a different approach then we'd want to reserve our position in trying to address the Commission on those issues by reference to evidence and more specific submissions on those matters. But I accept that what you've identified, Vice President, might be another way forward in dealing with it. I'm not discounting that's not a valid way of addressing the issue. I just don't think we're in a position to address that point.

PN3520

VICE PRESIDENT HATCHER: Yes, all right. Sorry, go on, Mr Seck.

PN3521

MR SECK: That leads me to this point that the 1996 decision of Commissioner O'Shea is the basis upon which the classifications and rates are set for the national award which was made in 1998 and that award was made by consent of the parties adopting the salary levels and classification structures set in the 1996 decision for the Victorian Community Pharmacy Victorian Interim Award. So, in my submission, that would be probably a sufficient basis in order to enable a comparison to be undertaken between what happened in 1998 and what happened now, subject to trying to match up the relevant classifications that exist under the 2010 award as amended or as varied to the award in 1998.

PN3522

Can I then deal with the case which has been point against us? The case which has been put against us is that, at least as I understood it as originally presented, there has been changes to certain key areas since 1998 which would demonstrate an increase in work value from what pharmacists in the broad sense did in 1998 to what they do now. And that was done by reference to, firstly, education or registration requirements, secondly, new work and services which are being provided both under the community pharmacy agreements or otherwise, an increase in the clinical skills, responsibility and accountability of pharmacists, an increase in the training of pharmacists and an increase in the workload.

PN3523

I want to deal with each of those points in turn, step by step. The first is to understand the educational and registration requirements that applied to pharmacists in 1998. APESMA opened by taking the Bench to the determination made under the National Health Act 1952 which required a pharmacist who wished to participate in the PBS scheme to comply with various codes of ethics, professional standards and competency standards. What he didn't do was taken the Bench to the determination as it applied in 1998. So I have shown a copy of this to my learned friend. So can I hand up to the Bench a copy of the determination as it existed in 1995 and applied in 1998.

PN3524

The comparison that we're making, just to be clear, is the 2007 determination which is contained under tab 3 of exhibit 19 of the opening bundle in these proceedings.

PN3525

VICE PRESIDENT HATCHER: I might make that an exhibit, Mr Seck.

PN3526

MR SECK: May it please.

PN3527

VICE PRESIDENT HATCHER: The Human Services and Health Determination gazetted 29 November 1995 will be exhibit 30.

EXHIBIT #30 HUMAN SERVICES AND HEALTH DETERMINATION GAZETTED 29/11/1995

PN3528

MR SECK: The Bench will see that the determination was made in 1995 under the same paragraph of the National Health Act, paragraph 92A(1)(f), and the requirements for obtaining approval to dispense PBS drugs are subject to particular requirements. That's set out in paragraph 2(a), (b) and (c), and then it's detailed further in the following paragraphs. So, relevantly, for current purposes, it should be noted that in paragraph (c), pharmacists are required to comply with the current code of ethics, standards of practice, including maintaining a discipline dispensing procedure which includes - and then there's various requirements in terms of ensuring, to put it generally, the quality and accuracy of the dispensation of drugs and the advice and counselling given to patients.

PN3529

Paragraph 3 and 4 then set out in more detail the standards of practice which are required and the Bench will note there is a reference to the Australian Pharmaceutical Formulary Handbook, 15th Edition, published by the PSA, particular parts of it. Then turning over the page to paragraph 4, the standards of practice are set out in more detail in terms of pharmacists engaging in a much more holistic approach to practising including getting access to medical history, providing relevant medical information and - - -

PN3530

VICE PRESIDENT HATCHER: This is the patient's preparedness, isn't it?

PN3531

MR SECK: Sorry, that's so, which indicates that there is a reciprocal kind of a relationship which exists between the pharmacist and the patient. That is the patient has to provide this information and do certain things in order to allow the pharmacist to perform his or her job to the appropriate and requisite standard of practice, so I won't read all that out. Importantly, and it's a matter which I'll come back to later on, paragraph 5 says that:

PN3532

The approval is also subject to the condition that the approved pharmacist and any pharmacist under the control of the approved pharmacist will maintain the currency of his or her pharmaceutical knowledge through participating in continuing education programs.

PN3533

That is relevant because, obviously, the manner in which the union has sought to present its case is to say the regulatory and professional standards that have applied to pharmacists and the need to keep up to date has changed over time. And there's no doubt with updated medical knowledge and more medications coming onto the market, there have been changes to the content of those standards in some ways. But the major obligations which are placed upon pharmacists to operate in accordance with professional standards, to practice in accordance with the profession's code of ethics and to maintain their knowledge to ensure that it remain current has been a feature of pharmacy practice, in fact, a compulsory feature of pharmacy practice if you wish to participate in the PBS scheme since at least 1995.

PN3534

VICE PRESIDENT HATCHER: Speaking for myself, you're probably right in saying that continuing professional development and maintaining professional currency is an implicit part of being a professional and this document reflects that. But just going to more recent developments, what are we to make about the increase in CPD hours from 40, which on one view might have reflected the existing acceptable standard, up to 60? That must say something about what is required of professionals in a quantitative sense?

PN3535

MR SECK: It certainly would. It certainly suggests the profession takes it seriously and that obviously there's a belief that to maintain professional standards, 60 hours is considered appropriate.

PN3536

VICE PRESIDENT HATCHER: I mean, you would infer in the absence of evidence that if 40 hours was the requirement and people were doing 40 hours and there was some assessment that that is not enough and we want you to do more.

PN3537

MR SECK: I don't know if that inference suggests that people are only doing 40 hours. The inference might be we need to make it at a level which we think is necessary because CPD minimums doesn't actually reflect actual minimums. Though, I accept what your Honour says that it may be a basis for drawing an inference as to what people in the profession were doing. But if we take as the baseline that pharmacists have to do a certain level of CPD to demonstrate a level of professional competence and to meet professional standards and it's left up to the pharmacist to ensure that they have their knowledge updated, to practice in a manner which is in accordance with the current state of knowledge, one would assume that all pharmacists, absent any other evidence, would be doing all that CPD in order to practice according to that particular level. So, in my submission, it cannot lead automatically to the inference that pharmacists weren't doing 60 hours previously. If it's been determined to be 60 hours, in my submission - and that's to reach a particular professional standard and we assume that pharmacists have been operating in accordance with the professional standard previously and there was a much more general obligation placed upon them under the 1995 determination, then an equally open inference, I submit, would be they would be doing whatever is necessary and that could be up to 60 hours to ensure the currency of their knowledge.

PN3538

VICE PRESIDENT HATCHER: I note the time, Mr Seck. How are you travelling for time?

PN3539

MR SECK: I would say I'm probably about another hour, hour and a bit, I would say.

PN3540

VICE PRESIDENT HATCHER: All right. So if we adjourn until two, we'll have plenty of time to finish before four.

PN3541

MR SECK: I don't know how long my learned friend will take, but I think another hour to an hour and a half for me.

PN3542

MR IRVING: I'll be five minutes at this stage.

PN3543

VICE PRESIDENT HATCHER: Yes, all right. We will adjourn and we'll resume at 2 pm.

LUNCHEON ADJOURNMENT�� [1.01 PM]

RESUMED�� [2.08 PM]

PN3544

VICE PRESIDENT HATCHER: Mr Seck, I've just provided the parties with a document, not wholly checked, prepared over lunch which indicates by reference to the C10 rate what the numbers would be if Commissioner O'Shea's relativities were maintained which may itself call into question, on one view, the basis upon which the case has been run but is using that decision as a foundation for an assessment of work value.

PN3545

MR SECK: It perhaps may suggest that, your Honour, I'm not sure how the Metal Industry Award or the current award's changed over time and the basis for it but assuming that there's been no change, then obviously there is a question there.

PN3546

VICE PRESIDENT HATCHER: Right and to be clear, it's based on the C10 rate and the relativities referred to by Commissioner O'Shea and the relativities for the C1 rate but, as I think the parties would be aware, those relativities in that award haven't been maintained because of the history of awarding flat pay increases.

PN3547

MR SECK: I understand, your Honour, when it says it's Metal Industry Award, is that the manufacturing � sorry, yes.

PN3548

VICE PRESIDENT HATCHER: Yes, sorry, yes, you're quite right. To be clear, Mr Seck, I'm not suggesting that we should award those outcomes. I'm just raising the issue of whether it calls into the question Commissioner O'Shea's decision as a proper basis for a work value assessment.

PN3549

MR SECK: It might be necessary to see what the Metal Industry Award, in fact, it provided for in 1998 and compare that to what he, in fact, awarded and there might be an explanation between 1998 and now as to why there's that variance. I don't have the answer to that question at the moment.

PN3550

VICE PRESIDENT HATCHER: Well you'd need to do the mathematics. There is obviously an issue that the flat wage increases or flat dollar increases which were awarded for so long could press relativities for persons at the upper end of the scale but whether that's the whole explanation, I'm not sure.

PN3551

MR SECK: I'm grateful for that document. That perhaps is a matter I need to give some thought to.

PN3552

VICE PRESIDENT HATCHER: The other question which, speaking for myself, might be of interest is whether the actual award which governs professional scientists, which is now the Professional Employees Award, should be used as some sort of point of comparison.

PN3553

MR SECK: Obviously, your Honour, we're here to address the case which is being put forward by APESMA but it is sought to turn my mind to what might be an appropriate comparator if a comparison is, in fact, to be undertaken. Given that there's been a move towards federal awards, and there are numerous federal awards on the medical field, there's the Health Services Award or the Health Professionals Award, they might be potentially relevant classifications but obviously until I undertake the exercise of matching it side by side, it's hard to work out what's the best comparator but those are the awards which came to my mind, at least initially, as to what might be relevant benchmarks.

PN3554

VICE PRESIDENT HATCHER: All right, anyway let's move on.

PN3555

MR SECK: Anyway, if that case is run then we'll deal with it. Before lunch I was just dealing with the regulatory scheme under which education and registration requirements apply to pharmacists and I took the Bench to determination PB16 of 1995. There's obviously as I pointed out similarities to the 2007 determination but also some relevant differences.

PN3556

I'll come to that shortly but I want to take the Bench through to some of the relevant documents and a comparison's already been, in part, undertaken by APESMA between some of the relevant documents but the starting point, or the first one I wanted to deal with is the code of conduct or the code of ethics. If I can invite the Bench to go to GM26, identified as GM24 and paragraph 82 of my submissions. That's incorrect but it's GM26 which is the 1998 code of professional conduct. The ‑ ‑ ‑

PN3557

VICE PRESIDENT HATCHER: Sorry, what's that paragraph of the submission was it?

PN3558

MR SECK: Paragraph 82(a)(ii) I think I've identified as GM24, your Honour, so if you can make correction and identify that as GM26. That's my error in the rush last night. As I pointed out earlier, the code of ethics is given force, in part, under the 1995 PB16 determination, which is exhibit 30 in these proceedings, and looking at the code of professional conduct, the Bench will see that the concern about pharmacists, the primary concern of pharmacists in principle one is health and wellbeing of both the clients and community and then it's expressed in a bit more detail in the following obligations, just noting that there's still an emphasis on exercising professional judgment, that's 1.3, and 1.4 ensuring that all reasonable care is taken when disclosing medicinal products and chemicals.

PN3559

My learned friend made a point about well quality standards apply now which didn't apply previously. I'll come back to the professional standards very shortly but quite plainly, the principles are expressed at a level of abstraction to capture the safe and judicious use of medicines, which is language I picked up from Ms Willis' affidavit and, in my respectful submission, when one goes through each of the principles which are outlined in the code of professional conduct in 1998, there's no doubt that it makes clear that the pharmacists have an overriding obligation to deal with the health and wellbeing of clients and community.

PN3560

They need to exercise professional judgment, take reasonable care and have up to date and contemporary knowledge and in that respect, can I take the Bench to principle four, which is overleaf, which says "A pharmacist must maintain a contemporary knowledge of pharmacy practice, issues and professional knowledge in order to ensure a high standard of professional competence" and it talks about a pharmacist having to "Continually review and maintain a level of professional knowledge with a view of improving the quality and standard of pharmaceutical services available to the community".

PN3561

It doesn't use the language of CPD, that's much more specifically provided for in the determination but it does place a legal obligation as well as an ethical obligation upon pharmacists to ensure that their knowledge is continually updated so it reflects contemporary knowledge and practice. Just going down to principle six, it says "A pharmacist must respect the skills and expertise of other health professionals and work co-operatively with them to optimise health outcomes of their mutual clients" and so that's directed towards not only the dispensation of medicine but also looking after the overall health of patients which includes dealing with other medical and allied health professionals.

PN3562

This is the state of play, as it were, in 1998 in terms of the professional and legal obligations, at least under the code of professional conduct, that applied. They're not dissimilar and, in my respectful submission, they're materially the same as the majority of the obligations, in a professional sense, that apply to pharmacists today. They might be expressed in different words, there might be slightly more detail as to how one complies with those overarching standards of conduct, professional conduct, but the essence of those standards are the same.

PN3563

The comparison which needs to be undertaken is with the 2014 code of ethics, which is GM28, and that comparison's already been done by APESMA and I won't go through that but, again, the obligations are not materially different. The language may be different and so, to use an example, page 10, using the numbers at the bottom, there's a care principle which talks about a pharmacist's practices ‑ sorry, care principle one "A pharmacist makes the health and wellbeing of the patient their first priority".

PN3564

Care principle number two "A pharmacist practices and promotes patient-centred care". There's been much said about patient-centred care as being something which is new under the code of ethics. In my respectful submission, whilst the expression patient-centred care is not used, as set out in care principle two, it does mirror the obligation set out in paragraph 1.1 of the 1998 code of professional conduct which talks about pharmacists acting in a manner which promotes and safeguards the interests and welfare of clients.

PN3565

Whilst the language might be different, again, we would say the substance of those principles are relevantly the same. Then can we deal with competency standards. The starting point are the 1994 competency standards, which is exhibit 25 in these proceedings, so can I invite the Bench to go to exhibit 25 and then follow through how they operate, the basis upon which those standards developed and how they apply and then demonstrating the relevant similarities that exist.

PN3566

VICE PRESIDENT HATCHER: Well firstly in relation to exhibit 25, there was some challenge to not the document itself but whether it constituted an actual working document for the industry. Is there any evidence about that?

PN3567

MR SECK: What I can accept is that � I suppose it depends on what one means by working document.

PN3568

VICE PRESIDENT HATCHER: Well I mean we know - - -

PN3569

MR SECK: It's not - - -

PN3570

VICE PRESIDENT HATCHER: - - - on its face it was adopted by Australian Pharmacy conference but did it follow from that that it was distributed or pharmacists were told there was some expectation of compliance or did it not get beyond the conference?

PN3571

MR SECK: I think the answer to that is when one looks at, and I think GM24, and I know my learned friend went to GM24 in going through the history � sorry, I might be wrong, it's not GM24, it's 23.

PN3572

VICE PRESIDENT HATCHER: What page in GM23?

PN3573

MR SECK: Pardon me, your Honour, page 98, which is appendix one. I can acknowledge this is that there is no evidence and certainly nothing in the legislation which suggests that these competency standards had any legal operation unlike competency standards today which find force in the determination. These competency standards were prepared with a view of circulation and encouragement and there was encouragement given to members to follow it, or there's an expectation that members would follow it, but there's no - - -

PN3574

VICE PRESIDENT HATCHER: Sorry, members? Members of what?

PN3575

MR SECK: Sorry, when I say members, members of the, sorry, professional community. That is pharmacists would follow it within the relevant jurisdictions.

PN3576

VICE PRESIDENT HATCHER: Yes, well that's a point. What's the evidence of that?

PN3577

MR SECK: Yes, I accept that and there was no evidence to say that this applied but I think the best evidence is that it was endorsed with an expectation that it would be encouraged.

PN3578

VICE PRESIDENT HATCHER: Was it even distributed? That's what I can't get.

PN3579

MR SECK: I think it was. If you go to the bottom of page 98, your Honour, it says, second sentence "Comments and suggestions the change were called for from stakeholder organisations and from individuals who have had experience" ‑ ‑ ‑

PN3580

VICE PRESIDENT HATCHER: I see.

PN3581

MR SECK: - - - "implementing 1994 standards". Whilst it didn't have legal effect, it was distributed, stakeholders had involvement and individuals had involvement in implementation. I don't think I can say it had legal implementation or widespread acceptance, the evidence doesn't go as far, but certainly it must have been disseminated within the profession in order to call for comments. That's as high as it goes.

PN3582

VICE PRESIDENT HATCHER: Well it implies it was implemented in some way.

PN3583

MR SECK: It does suggest that and it was probably implemented on a case by case basis by pharmacists within the industry so whilst there was no legal obligation it certainly suggests that there was implementation of it by some people. I can't say how many. Hopefully that answers your Honour's question because that's probably the best evidence we have.

PN3584

VICE PRESIDENT HATCHER: Thank you.

PN3585

MR SECK: Can I go back to exhibit 25 and just explain partly the provenance of the document because it reflects not only what it was intended to do but how it was actually created. If one goes to the front page of exhibit 25, it's a project which was commenced in 1992 after a contract was awarded to the PSA. It's the PSA who had responsibility for creating the document and what happened was that, and this is apparent from reading research, the third paragraph, is that research co-ordinators went out to every state and interviewed people to ascertain the competencies required, and that's clear from the third paragraph that there were critical incident interview techniques to validate the competencies.

PN3586

In using the word "validate", that would suggest, in my respectful submission, that the co-ordinators were going out to ascertain what the competencies were required in the field. That resulted in the preparation of a draft document, and I won't go through all those points there, but if one goes to about point five on the page, it says "The steering group examined methodologies considered appropriate for the assessment of competencies and recognised that many were already employed by at least one pharmacy registering authority in Australia".

PN3587

Just pausing there, that suggests that the steering group actually went out to the field to work out what was appropriate based on what was happening and importantly, there was some state or territory registration authorities, presumably state and territory pharmacy boards, which were already implementing standards of a similar nature to what's contained here. What this document was doing was to try to nationalise disparate state and territory competencies which existed, and then the steering group talks about the process moving forward and seeks to endorse it.

PN3588

What those points demonstrated are these, is that this document wasn't purely an aspirational document. It was a document based on research on the ground, speaking to pharmacists to work out what competencies needed to be validated. The second point is that there were already other instruments in place, at least amongst some states or territories, setting out these particular competencies and if one accepts that then one doesn't see this as purely a document which has no relevance.

PN3589

It obviously seeks to bring together what's happening on the ground in terms of professional practice and competencies but also what the registration boards are doing in order to establish the appropriate standards for those competencies. Then if one goes through the document, and I won't spend too much time on it, is that the units of competencies focused, amongst other things, I'm looking at page six now, on implementing a policy, and this is under the heading Units of Competency, third-fourth paragraph.

PN3590

The Bench will recall that Dr March talked about the World Health Organisation coming up with a policy about the rational use of drugs and that led to the implementation of these kind of standards, and there's a reference there to the Australian government health policy on the quality use of medicines by the Pharmaceutical Health and Rational Use of Medicines committee. Just pausing there, the national medicines policy wasn't something which was developed anew.

PN3591

There was a previous policy which had been developed which governed the quality use of medicines. This is a concern which existed for many years prior to 2000. It didn't magically develop in 2000. There is obviously an evolution and a refinement of those policies over time but those policies, in fact, existed.

PN3592

VICE PRESIDENT HATCHER: Are we able to date that? That is the policy and the reference to the PHARM document apparently. Yes, do we know what the date of that is?

PN3593

MR SECK: No. We can find that out but I assume it's between 1987 and 1994. It has to be because it obviously leads from the World Health Organisation's statement and this competency standards 1994, so it's clearly before 1998 which is the key point. Then if one goes to the last paragraph, it talks about pharmacists "Possessing a body of knowledge and the technical and interpersonal skills relevant to practice of pharmacy, the ability to communicate effectively, problem solving skills and the professional and ethical attitude which enable the exercise of judgment and the acceptance of responsibility and accountability".

PN3594

Those echo very strongly the points which have been made by APESMA to justify the wage increase based on work value concerns here. Communication, interpersonal skills, increased accountability and responsibility, quality of medicines. All these are things and all these are matters of competency which are being addressed in 1994. In my respectful submission, to see the creation of competency standards and greater emphasis on these issues over time is, of course, true but it has to emanate from somewhere and this is the source of it way back in 1994.

PN3595

Then if one goes through the units competency, there's initially a summary of them and there are seven units all up, but the ones I wish to emphasise is the first one, unit one, which starts at page 17 which is "Promote and contribute quality use of medicines". Again, the emphasis here is not only on dispensing medicines but is promoting and contributing to the quality use of medicines and it talks about engaging in an intellectual process of monitoring and evaluating the drug therapy to work out whether or not it's appropriate and that's having regard to perhaps what other health providers may do to determine the choice of, and this is the language they use, rational drug therapy in order to optimise health outcomes.

PN3596

Again, that is very much similar to what the quality standards are seeking to achieve and I won't read out the various points there, they obviously deal with a whole range of issues, other than to emphasise 1.3 talks about recommending action to optimise health outcomes which, again, is something which is beyond just dealing with the medicine, even though that's obviously the primary focus, but talking about optimising the health outcome for the particular patient.

PN3597

VICE PRESIDENT HATCHER: Just staying with the issue of date, when you analyse the Commissioner O'Shea decision you sourced it back to a much earlier decision by the Victorian Commission. What was - - -

PN3598

MR SECK: Yes, that was 1991 I think.

PN3599

VICE PRESIDENT HATCHER: Do we know anything about how that decision arrived at the outcome?

PN3600

MR SECK: No, I must say I did try to chase that rabbit down that rabbit hole and because the Victorian Industrial Relations Commission ceased to exist, I have no idea where to find those documents. The Commission might have access to it but I can't really take it much further beyond that. Quite plainly the 1991 Victorian decision was relevant to Commissioner O'Shea's decision but I think what's also obvious is that he had material before him which was in 1996, which is after these professional � sorry, these competency standards had been developed.

PN3601

Can I then take the Bench just to one or two other units of competency. Unit four, which starts at page 32, is entitled Provide Primary Health Care. The Bench has heard much evidence how there's been an evolution away from dispensation of medication to providing primary healthcare services. This has obviously been a concern and a matter which was the subject of � sorry, a matter which had been practised, at least amongst some pharmacists, as early as 1994 and when one looks at the definition of providing primary healthcare, it goes beyond simply the medication issue but deals with the overall health of the patients and public and you can see each of the units, or sub-units of unit four, that refers to many of the things which APESMA's witnesses referred to.

PN3602

That is looking at patient history, looking at patient symptoms within, obviously, the skillset of pharmacists and then providing other kind of health services and referring them onto other healthcare providers as appropriate.

PN3603

VICE PRESIDENT HATCHER: Is 4.11 still a current function of chemists?

PN3604

MR SECK: Pardon me?

PN3605

VICE PRESIDENT HATCHER: Is 4.11 still a current function of pharmacists?

PN3606

MR SECK: Your Honour's ahead of me.

PN3607

VICE PRESIDENT HATCHER: 4.11.

PN3608

MR SECK: 4.11. It may be, your Honour, I don't know. I think the � I haven't seen that in any of the latest documentation but perhaps they were doing more work back then. This might be an example of where pharmacists are doing less work and therefore, I don't know, maybe there's a concurrent reduction in the work value in that respect, but we're certainly not advancing that argument, your Honour.

PN3609

Can I just point out, unit six deals with practising pharmacy in a professional and ethical manner. I won't read all through that but there's references to code of ethics and standards of professional practice and competence. Again, all things which APESMA have sought to emphasise as being new but existing in 1994, at least in terms of what's being recognised as practice amongst some pharmacists and a relevant issue to be the subject of competency under the competency standards.

PN3610

If one then compares that to the competency standard that exists today, and that is annexure GM22, hopefully I'm right with my referencing, I might be wrong, it should be GM ‑ can the � all right, sorry, sorry, it's exhibit 25, I apologise, that's my fault, exhibit 25.

PN3611

VICE PRESIDENT HATCHER: That's the document you just took us to.

PN3612

MR SECK: No, pardon me, competency framework is, in fact, GM23. Again, my cross‑referencing is off. Can the Bench just correct my typo there. The competencies are a bit lengthier and as my learned friend, Mr Irving, pointed out it's much harder to do a comparison between what existed in 1994 and what exists in the 2016 competency framework but you'll see a lot of common themes such as professional ‑ this is starting at page 14, they're in domains this time, professional and ethics, communication and collaboration, medicines management and patient care, education and research.

PN3613

Whilst not descending into the detail, the big picture points are very much the same. Can I then deal with the question of professional standards which are not dealing with competencies but the quality of the services and advice which are being afforded by pharmacists. What we have is the competency standards � sorry, the professional practice standards that existed in 1999, which is GM24, and the Full Bench will remember this document because I cross‑examined Dr March on this in quite a bit of detail.

PN3614

These were standards which were the forerunner to the acute quality care pharmacy standards but also to the professional practice standards that existed, so if the Bench goes to page (iii), that obviously sets out the key standards which are in place and the high level points I want to make are these, that firstly a lot of the matters which were funded under 6CPA were matters which were the subject of the professional practice standards in 1999. One can assume if it was made shortly after 1999, which is May, that these things were happening prior to 1999, that's the first point.

PN3615

The second point is when one looks at those particular professional practice standards, they themselves refer back to source documents which are earlier than 1999, all the way back to the early to mid-1990s in some cases. To use an example, let's look at dose administration aids, which is starting at page 13, and I put this to Dr March in cross‑examination, which he accepted after a bit of effort, that what the standards reflect are best practice and it reflects best practice, it reflects that people were, in fact, doing it in 1999, if not earlier, and definitely I should say.

PN3616

That's sourced in a report, if one goes to page 17, prepared by the University of South Australia in 1997, so it does suggest that people were creating dose administration aids prior to 1998. I can accept, and I'll come back to this later, things are now done differently but it doesn't change the fact that one has to supervise how those dose administration aids are prepared and make sure that they're done properly. Those things remain in common.

PN3617

Another example is standard four, which is patient counselling, and I won't go through that again because I cross-examined Dr March in quite a bit of detail on that issue, and then moving to comprehensive pharmaceutical care, which is page 44. This is the equivalent of a meds review and whether or not one does it at home or whether one does it elsewhere, what it involves is assessing with the patient the optimum drug therapy for that particular patient so that it improves their health quality of life and achieves positive clinical outcomes and, again, the Bench will see the language used here is patient-centred outcomes oriented practice.

PN3618

Language which APESMA relies upon to say after - this is a matter of more recent mention, these are matters which are being raised in 1999, and then if one goes to - - -

PN3619

VICE PRESIDENT HATCHER: Were you relating this to medication reviews were you?

PN3620

MR SECK: Yes. They're not dissimilar to meds check, they're not dissimilar to home HMRs. In other words, people are looking at the medication which patients are taking and assessing whether or not this was appropriate for them. I think comprehensive pharmaceutical care is a much more � is a different way of expressing the same thing and when one looks at the criterion - - -

PN3621

VICE PRESIDENT HATCHER: You say this discounts any change affected by the introduction of the accredited pharmacist role?

PN3622

MR SECK: Yes. Not discounts but demonstrates that these things were being done in 1998 or earlier. I'm not saying that it discounts it. What I'm saying is that to say that these things weren't being done obviously is wrong if one accepts that this reflects standards for things which are happening out in the field, things that pharmacists were doing at the time. It might be that more people are doing it and the funding means that obviously there's a greater uptake in doing those things.

PN3623

I'm not gainsaying that proposition that there might be more people doing it but in terms of the skills and responsibilities and whether or not the work was being done, in my respectful submission, the evidence is clear. Those skills and responsibilities were the subject of these performance practice standards in 1999, which is sourced to earlier times, and more importantly, they were, in fact, being done during that time.

PN3624

VICE PRESIDENT HATCHER: Does that mean the introduction of the, I'll call it, qualification, although it's probably not quite the right word, of accredited pharmacists and the need to undergo the training requirements and CPD requirements of that does not constitute � just as a discreet work value change?

PN3625

MR SECK: In my respectful submission, it doesn't constitute a change in work value and that there are three reasons for that, and I'll come back to this later. Firstly, what we say is the evidence shows what's being done is systematising and documenting things. That seems to be the major change for most of those reviews and documentation and systematising things doesn't necessarily mean that there is any new skill or responsibility involved.

PN3626

It means that things have to be recorded chiefly to ensure that the government knows the work is being done and that you can claim the payment. The second point is that the fact that accreditation's required is more in the nature of credentialing to say you now have the credentials to do these things because we can be assured that you are doing it properly.

PN3627

VICE PRESIDENT HATCHER: It's attached to a training requirement isn't it?

PN3628

MR SECK: I absolutely agree with that but it doesn't necessarily mean people weren't doing training beforehand, Vice President, so I accept it's now mandatory and that might be something which is more appropriate for an allowance and I can acknowledge upfront that it's probably a case for an allowance in relation to those matters but that's not the case we're facing today even though I know it's been suggested as a fall-back option in dealing with these particular issues.

PN3629

In terms of work value, we say there is no additional significant net addition to the work requirements because the work was being done, the skills and responsibilities are the same. This is now credentialing, there's an accreditation which will involve some training. Doesn't say the training was being � it doesn't mean training wasn't done beforehand it just means now it's mandatory.

PN3630

Can I just note that page 48 gives a bit more detail and additional information one about the nature of what's involved in a pharmaceutical care plan. It's not relevantly different to what's been described for the meds check and I won't read all that out. The last thing, or the last point, maybe more than two more things, firstly, I'll work backwards, standard 11, which starts at page 60, pharmacy services to residential care facilities.

PN3631

This is not different from RMMRs. Again, it's about going out to the residential care facilities, not only dispensing with the medicines but also providing them with information and responding to their particular needs. If one goes through the particular details, it's about having systems in place, delivering it, storing it, monitoring it, advising on it. These, again, whilst not exactly the same, they're not dissimilar to what's been contemplated under the RMMRs and if one goes to the references, these things were being addressed under guidelines and various other forms of regulation as early as 1997.

PN3632

That's set out in page 66. Sorry 1996 I should say. You'll see there, there are standards for comprehensive medication reviews which are identified in the Australian Pharmaceutical Formulary Handbook in 1997. There are other aspects which talk about health promotion and liaison pharmacy with hospitals and things like that. These are all matters which APESMA relies upon as a significant change in work but plainly, the professional standards, address many of those issues.

PN3633

Can I then just deal with QCPP, just very quickly, pardon whilst I turn my back to the Bench. The Full Bench will recall that there was a document which was tendered, which is exhibit 26, the quality care program and we included extracts out of it, but the front page indicates that the Quality Care Pharmacy Program was something which developed initially in 1998 and that's apparent from point five in the page in the middle paragraph, where in March 1998 there was the official launch of the community care pharmacy program.

PN3634

That led to a review of the professional standards in 1999, and that's the document to which I've taken the Full Bench, and that leads to this document being, which I've tendered, which is the 2000 document. Again, quality care pharmacy programs existed in 1998 according to this history and part of that was adherence to professional standards.

PN3635

Can I deal with the issue of change in work and there have been numerous cases, and I set this out in paragraph 85, that merely because there's a statutory requirement to hold a certificate of competency does not, in and of itself, constitute a relevant change in work value because there has to be change in the work itself or in the skill or responsibility required and whilst these are old cases which I've referred to in paragraph 85, hopefully it's paragraph 85, it might be a different paragraph, might be 86 because I've updated my submissions, but you'll see there, there are cases which support the proposition that a change in, or a requirement to have, competencies in itself does not necessarily mean that there's been a change in work value and I think in this case, obviously, we accept there have been competency standards but they applied in 1998, so I don't think that's an issue which we need to address.

PN3636

Can I deal then with the four year bachelor degree. Exhibits 27 and 28 contain - - -

PN3637

VICE PRESIDENT HATCHER: Just before we move on from that, if the structuring of duties and the introduction of standards leads to a greater professional accountability for any failure by reason of the fact that they're standardised instruction, is that an increase in responsibility? Rather than having some sort of informal notion that pharmacists are supposed to do things, if you have a structured system whereby there's a set of fixed standards and there's a professional system to hold you accountable if you don't meet those standards, has that changed your level of responsibility?

PN3638

MR SECK: No because the accountability standard remains the same. What the competency standards and the professional standards allow you to do is to work out, with much more clarity and precision, what you have to do to achieve that standard. The way I would put it, Vice President, is that it doesn't change the accountability, it just makes it more transparent and by making it more transparent, it makes it easier, in a way, for the professionals because they know what they need to do to meet those professional standards or those competency standards rather than having something amorphous which applied to them, which has always applied to them, that you have to operate according to a particular professional level.

PN3639

The fact that there are guidelines, standards and the like which apply, in my respectful submission, doesn't change the fact that for every professional there are professional standards to be met. In fact, it just makes it clearer and, in many ways, easier because you now know what you have to do.

PN3640

VICE PRESIDENT HATCHER: All right, thank you.

PN3641

MR SECK: In terms of the Bachelor of Pharmacy course content, can I just deal with that quickly. The four year requirement was introduced before 1998. It's true that the first cohort of students who came out probably came out after 1998. Can I invite the Bench just to go to, for example, exhibit 27 which is � it's easier to go to exhibit 28 which is the Sydney University course content. The first document which is contained there, and unfortunately I haven't paginated this document, is the 1996 handbook and the 1996 handbook you'll see contains, this is on the second page, and there's the summary requirements.

PN3642

VICE PRESIDENT HATCHER: Was this three or four years at the time of this handbook?

PN3643

MR SECK: What you'll see, your Honour, is that if one turns over the page to the 1995 handbook, I think in 1996 it's a three year course because it's governed by the 1990 resolutions. Then in 1997 there are resolutions which are made by the university senate and that's in the 1997 handbook and if you can turn probably about six pages over, there's a 1997 handbook and you'll see the resolutions which start in the first column.

PN3644

I won't read all of that out but if you go to the definitions in the second column, it talks about a four year course, which is in paragraph 1(ii) "Each course shall be designated a first year course, second year course, third year course and fourth year course". This is something which is already � which occurs in 1997 and then if one turns over two pages, you can see in table vii the courses for a pharmacy degree, 1997 degrees, it does say honours degree but it is a fourth year course, and just noting that if you go up to some of the courses above, it does talk about pharmacy practice.

PN3645

We don't have any details of what's contained within those courses at the time other than one can infer from looking at later course content, and if I can ask the Bench to go to the 2000 handbook which is about five or six pages forward, this is based on the 1997 resolutions, you'll see that there's a description of the course content and relevantly there's subjects called Professional Pharmacy, Professional Pharmacy 2A, et cetera, which talks about having these communication soft skills, non-verbal skills.

PN3646

VICE PRESIDENT HATCHER: Where's this?

PN3647

MR SECK: Pardon me, if your Honour goes to - - -

PN3648

VICE PRESIDENT HATCHER: This is 2000?

PN3649

MR SECK: This is 2000 and when one goes about two pages over, it has two columns with course content.

PN3650

VICE PRESIDENT HATCHER: Is this the page 141?

PN3651

MR SECK: Yes, 141 and then one moves over to 143.

PN3652

VICE PRESIDENT HATCHER: Right.

PN3653

MR SECK: You'll see Bachelor of Pharmacy first year at the top and the description of the Professional Pharmacy about point five of the page, first column, then if one goes to page 145, there's Professional Pharmacy 2A. These are the same courses which existed in 1997 and I accept when the award was being made, it was done in knowledge, it must be inferred, that the university course was changing from a three year course to a four year course, but I accept the first graduates didn't come out until afterwards. There was a question which your Honour directed to Mr Irving ‑ ‑ ‑

PN3654

VICE PRESIDENT HATCHER: Sorry, Mr Seck, I can't find the second one you took us to.

PN3655

MR SECK: Pardon me. Second column on page 145 about point three in the page, Pharmacy Practice 2A.

PN3656

VICE PRESIDENT HATCHER: Yes, thank you. Dr Krass.

PN3657

MR IRVING: It's a course taught by Dr Krass, as was the other course that my friend's pointed out. It's the - - -

PN3658

MR SECK: I know, I know. Dr Krass could have given some evidence a bit more on this and had I known this, I would have asked a bit more about it but I did note that when I was going through the material. Before she was a professor ICM(?). In answer to one of the questions which was put by your Honour to my learned friend earlier today about whether or not the university content reflected actual practice, in my respectful submission, when one is taught something about practice, one's teaching people about what the practice is not what the practice should be.

PN3659

That's the very nature of practice. If you're teaching someone about what the practice is, presumably it's based on what is, in fact, occurring and what has occurred in the past and it's not a safe basis upon which to say that because the university introduced the course in 1997 it was being done for the first time and people weren't doing it beforehand. All the other evidence converges to suggest that questions about communication skills, ability to deal with patients on the shop floor were matters which were of concern and which were happening on the ground prior to 1997.

PN3660

The much more powerful inference to draw from the contextual evidence, in my submission, is that the courses were directed to implementing what was already being, in fact, done in the Australian community pharmacy industry. No doubt it's developed and been refined over time and the guild does not gainsay that proposition but it was something which was simply recognising what, in fact, had been occurring and what was, in fact, occurring.

PN3661

Can I deal quickly with CPD. I've already taken the Bench to determination PB16 1995. Can I ask the Bench to add to that section in my submissions on CPD for the reference to the code of professional conduct which also required people to keep abreast of ongoing developments. The evidence of ‑ ‑ ‑

PN3662

VICE PRESIDENT HATCHER: Sorry, what paragraph of the submission?

PN3663

MR SECK: Paragraph 87 but I'm just conscious that I - - -

PN3664

VICE PRESIDENT HATCHER: I see, yes, yes.

PN3665

MR SECK: - - - changed my paragraphing number, but the point to make is this, is that, and I've already averted to it, the evidence is that pharmacists have always been engaging in continuing professional development to maintain the currency of their knowledge in order to practice at their requisite professional level. Whether or not that was a certain number of hours or not, it's hard to tell because that's going to be � it's going to vary between pharmacist to pharmacist.

PN3666

Can I correct one thing which emerged this morning is that people are using hours, and I think we're more accustomed to talking about hours in the legal context. CPD is based on points in the pharmacy industry so if one talks about 60 points, so it could be you attend a course for one hour which might be worth more points than another course of a similar duration which has less points so it's on a points basis not an hour basis. In my submission, the fact that there's a requirement to keep abreast of changes, as I've set out in paragraph (d), doesn't necessarily mean there's necessarily a change in work value especially where it's a necessary part of any professional obligation, least of all, in this case, when there was an obligation in any event placed under the 1995 determination.

PN3667

Can I then deal with the issue about new services and new work. The Bench has heard from me beforehand that our essential point is that pharmacists are exercising skill and responsibility in performing work which is essentially the same nature involving a core set of competencies that have applied before 1998 and past 1998. How that's applied to changes in medicine or changes in community health standards, obviously, is going to differ and it will differ on an ongoing basis.

PN3668

We can come back in three years' time and I can probably safely say there will be more medications which will develop, there will be probably more medicines that have been moved between schedules, there will be new technology that's developed but it doesn't necessarily change the nature of the skill and responsibility or the fundamental core responsibility that applies to pharmacists and that is dispensing prescription medication, ensuring the safe quality use of medicine, including by minimising side effects and preventing adverse reactions, providing advice and information to patients and determining the appropriate course of action when people come into the pharmacy and ask and present with health problems or ailments.

PN3669

Those are the four fundamental components of what a pharmacist does. That has always been the case and it will continue to be the case and what's happening in terms of the new work and services is simply the deployment of those particular fundamental skills and I want to demonstrate that by reference, which I've already done, to the CPA services and the non-CPA services.

PN3670

The Full Bench will recall I took Professor Krass to a table that she and her co-authors prepared in the semi-structured interviews, and can I ask the Bench to go to part 2 of the report. It is exhibit 15 and it's page, I think, 29. Mr Irving has already referred to this table in his submissions. All the table does demonstrate is that the provision of certain services is much more prevalent for 6CPA, funded CPS, and is less prevalent for non 6CPA funded CPS other than the case of blood pressure and blood glucose.

PN3671

VICE PRESIDENT HATCHER: So what page was the table?

PN3672

MR SECK: Twenty-nine, your Honour. So looking at the page numbers - - -

PN3673

VICE PRESIDENT HATCHER: In part 2?

PN3674

MR SECK: Part 2 of the report, which is exhibit 15.

PN3675

VICE PRESIDENT HATCHER: Yes.

PN3676

MR SECK: The Bench will recall this document, or this table. Can I make the easy point first. It's plain that for non 6CPA funded CPS, based on the sample of 25 pharmacists the vast majority of the new services which are APESMA relies upon as the basis for the work value change are not provided by pharmacies which employ these pharmacists. Unless the Bench can be satisfied that this is an enduring and predominant feature of pharmacy practice for the vast majority of pharmacists then in my respectful submission it does not justify a work value change because it's not a part of the work requirements of the profession, or the particular classification. It's something which might be provided on an ad hoc basis by various pharmacies and the state of play at the moment is that there's just not enough evidence to demonstrate that there's widespread incidence of providing these particular services. That's the first point. The second point is that where those services are in fact provided, they're provided by the pharmacies, not the pharmacist, so there might be, as you pointed out, Vice President, one pharmacist just providing those services in a pharmacy, but not all pharmacies. So not all pharmacists within the pharmacy. So that was a point conceded by Professor Krass in cross-examination. So again this is telling you what services are provided by the pharmacies, not the pharmacist.

PN3677

The third point to make is that for the two services where there is a majority of pharmacies which provide it, they're primarily in the nature of machinery - - -

PN3678

VICE PRESIDENT HATCHER: They're the two non-funded ones?

PN3679

MR SECK: The two non-funded ones, the blood pressure cardiovascular disease, and blood glucose. Those were in large part based on instructions as to how to use the machine, or self-service machines. So in the case of blood pressure the evidence was sometimes it's done by the pharmacist. And a common feature for a lot of pharmacies is to have a self-service machine and there are instructions there for you to do it yourself. In the case of blood glucose the evidence is, is that there are instructions given to show the patient how to use the blood glucose meter. They go home and use it themselves and they bring it back. So what is being done by the pharmacist there is to give the patient instructions as to how to use a particular device. Now giving instructions is obviously additional work but it's not a significant change from what they were doing beforehand. Pharmacists give instructions as to how to take medicines and the like on a regular basis. The fact that those skills are being deployed in relation to a particular treatment does not necessarily mean that it's new work.

PN3680

So putting all the non 6CPA funded services aside for the moment, let's deal with the 6CPA funded CPS. The Bench has already heard one of my submissions, namely that many of these services were provided on an ad hoc informal basis in 1998. That's evident from the lay witnesses from PGA, but it's also evidence from looking at the professional standards. In 1999 those services were the subject of those professional standards and are sourced in earlier documents such as the formulary handbook in the early to mid-1990's. The second point is that funding, we accept, may indicate an increase in incidents of those particular services but it doesn't necessarily mean it wasn't done beforehand. And if we're talking about changes to work, the fact that more people are doing it doesn't necessarily mean people weren't doing it and there's a change to work requirements.

PN3681

The third point is - - -

PN3682

VICE PRESIDENT HATCHER: So what I'm trying to work out is, is the incident to which it � or that (indistinct) agreed to (indistinct), is that relevant to work value, or not?

PN3683

MR SECK: No. No. Well, I - - -

PN3684

VICE PRESIDENT HATCHER: You've just said you - - -

PN3685

MR SECK: I suppose it could be, your Honour, in terms of the third work environment. I'm just trying to think it through. It doesn't change the nature of work, because the work is the same.

PN3686

VICE PRESIDENT HATCHER: You made the submission based on that table that because most of the unfunded ones are not done in the majority of pharmacies it can't amount to work value. That's a submission based on incidence of the work.

PN3687

MR SECK: I accept that.

PN3688

VICE PRESIDENT HATCHER: Does the converse work, that if people are doing it a whole lot more, or everybody is doing it as distinct from some people, that's a change in work value?

PN3689

MR SECK: No, not by itself. I accept if there are times where it affects skill and judgment, that is, because you're doing more of it and it affects your skill and judgment because you're doing more of it and it improves as a result, then there might be that particular circumstance. But the fact that you're doing it more doesn't necessarily mean that the change in the nature of the work or the change in the skill or responsibility involved. The best ones, we'd say, is that it could be a change to the work environment because the environment for doing the work now is in a much more formalised way as opposed to the unstructured way it perhaps may have been done beforehand. So I accept if it falls within anything, it's paragraph (c). Work environment, I think it's more directed, in my submission, to the conditions of work overall. It can involve changes in the composition of duties. But what we're really talking about is now how much time people spend doing this rather than whether or not they had the skills or they were doing it beforehand.

PN3690

VICE PRESIDENT HATCHER: If they're not - - -

PN3691

MR SECK: There's just not enough evidence. Sorry?

PN3692

VICE PRESIDENT HATCHER: If they're not doing it a whole lot more than what was done before what is all that money being paid for in those community pharmacy grants?

PN3693

MR SECK: It could be two things. Your Honour heard the answer from Ms Willis. I know there might be a question as to whether or not the economics of what she presented is accurate but she said, well - - -

PN3694

VICE PRESIDENT HATCHER: It's either right or it's wrong. That is, she said it was just in effect a top up for loss of prescription income. But the expert evidence suggests that prescription income is increasing steadily, to put it mildly.

PN3695

MR SECK: I think the evidence which Mr Irving referred to was between the period of 1991 to 2014. So it's not a period which overlaps between � it overlaps but obviously covers a much broader period than what we're talking about here. I can't talk about whether or not what happened between 1991 and 1998 � but that's the first point to make. The second point to make, the fact that there's a change in Government funding which to emphasise these particular services, doesn't necessarily in itself mean that the services weren't being provided beforehand, it just might be another way that the Government has decided to change the mix of funding. And just because Government decides to change the mix of funding doesn't necessarily - - -

PN3696

VICE PRESIDENT HATCHER: But that's the point of Ms Willis' evidence. That is, did they change the mix of funding or not? If prescription income is just going up and up, and there's this other funding on top of that, what are they actually paying it for? What's it to do? What are pharmacies meant to do with that money?

PN3697

MR SECK: The answer is, I don't know. So I don't know whether it necessarily takes � what pharmacies would do with that additional money and why, other than to say that's the funding mix which is now used. If your Honour can excuse me for a sec. Ms Wellard reminds me that that's the available funding. It doesn't necessarily mean they get the funding. So they would have to do the services to get the funding.

PN3698

VICE PRESIDENT HATCHER: Sure. But on your case, all those services were being done already and for some reason the government's decided to pay hundreds of millions of dollars for something that was being done for nothing. And I just don't � unless those agreements are just a sham. But why - - -

PN3699

MR SECK: I don't think the evidence demonstrates � I know that's what my learned friend says, that it's a sham.

PN3700

VICE PRESIDENT HATCHER: No, no, the applicant says that they're not a sham, they're to be taken at face value.

PN3701

MR SECK: I think it can be answered in two ways, your Honour. Firstly, it could be just another way of supplementing that particular income, and whether or not the total funding envelope has remained the same or expanded, that could be another way of doing it. The second point is, I think I can accept the proposition which I did at the start that there will be a greater incidence of people doing that kind of work. All I was saying was, it doesn't mean people weren't doing the work beforehand, there's just a greater number of people are doing that work. The fact that a greater number of people are doing that work doesn't change, as I said, the nature of the work down or the skills and responsibilities. It just changes the work environment. So I suppose I'm accepting what your Honour is putting to me, that there will be a likely increase in the numbers of people doing that work. It just can't be used in the reverse to say that people weren't doing that work beforehand. So I don't think the reverse proposition works, to say that no one was doing it beforehand, and clearly people were doing it beforehand. But it will increase - - -

PN3702

VICE PRESIDENT HATCHER: On one view what's happened is that what was previously regarded as best practice has now been adopted as the standard. That is, everyone has to do what was previously done by the best practitioners.

PN3703

MR SECK: And that's one way of looking at it, is to say that people were doing it beforehand and now we're establishing a practise and we'll remunerate you for that particular best practice which includes standardised processes, documentation and accreditation. And that could be another way of looking at it now. Whether or not that accreditation is necessarily reflective of people not doing it beforehand, it's not clear. But what your Honour has just put is one way of looking at it. But that would tend to support our position that it was being done and we're just now standardising the level of practice by providing financial incentives for you to document that you're doing that. I think I've said everything I want to say about services.

PN3704

Can I then now deal with patient interaction and clinical interventions. I have taken the Full Bench to the relevant parts of the competency standards and the professional standards where patient interaction and clinical interventions were considered part of practice during that time period. So one can infer from the fact that those standards existed at the time, that these things were happening at the time. That's the first point. The second point is that PGA's witnesses say they were exercising those particular skills, responsibility and accountability at the time. Now it may be the case that there will be some people who were back in 1998, more comfortable behind the dispensary and now are forced to come out to the shop floor, but that doesn't change the nature of the skills, it doesn't change the nature of the work. At best it changes the work environment for those people who were more comfortable working behind the dispensary beforehand and now are forced to engage in much more interaction with patients in providing that particular advice. But absent any evidence that this is a tsunami of numbers of people who are changing the way they practice, affecting the work environment, in my submission that's not enough to demonstrate a relevant change to work requirements.

PN3705

VICE PRESIDENT HATCHER: The submission was made, I think, and it's along slightly different lines, that the modernisation and computerisation of the dispensing procedures has meant that pharmacists have been able to spend less of their time on low value work and a lot more of their time on high value work. What's your response for that?

PN3706

MR SECK: Probably true. But when we talk about value, it's more value to the � economically valuable to the pharmacy because they can go out there and � and also valuable to the community. But it doesn't necessarily mean that it's more work, that the work value's changed. So I accept that � and I think Ms Willis actually said this in evidence, with more dispensary systems, with more automations, more computerisation, that is freeing up more time for pharmacists to actually do engage in patient interaction and to provide clinical interventions. I certainly don't disagree with that proposition, your Honour. What I would say however is that it just means that the time involved in doing that has increased. And in my respectful submission the mere fact that more time is being spent allowing pharmacists to perform more meaningful, high value work, doesn't necessarily mean that work value is increased. The economic value may have increased to the community but it doesn't necessarily mean work value has increased. And in one sense, just dealing with the issue of automation and computerisation, that has actually also made pharmacist jobs easier in many respects. It's obviously allowed them to do things a lot more quicker. They've got access to more information at their fingertips. It means that perhaps some of the more drudgery work is no longer being done. And therefore there's more fulfilment in the performance of the job, rather than doing perhaps some of the slog work, as it were, in preparing DAA's and dispensing medicines.

PN3707

Can I then deal with the question of down scheduling. I can accept as a proposition that more medicines are moved down than they're moved up. There is no - - -

PN3708

VICE PRESIDENT HATCHER: The factual premises is that over the relevant period there was either one drug in schedule 3 and that's now up to around 60 drugs. Is that accepted, or is that in dispute?

PN3709

MR SECK: the answer is, I had no evidence to dispute it. I'm not saying I accept it but I have no way of refuting it. And I think the general - - -

PN3710

VICE PRESIDENT HATCHER: So do you accept that that's what the evidence before us shows?

PN3711

MR SECK: I think so. I think one person gave that evidence, I just can't remember who, but I accept that evidence is before the Commission.

PN3712

But scheduling a medicine is, in a way, really no different to new medicines coming up onto the market and pharmacists having to deal with those new medicines. It means that the pharmacist has to learn about those medicines, work out the appropriate use of those medicines, and counsel patients in those medicines. The fact that medicines have expanded or been down-scheduled doesn't necessarily change the fundamental fact that pharmacists have been doing this from the very start of their career. At the moment it's now scheduled � we're describing here, scheduling but it's actually part of a broader skill, new medications coming onto the market, having to learn about those new medications and advise as to those new medications. Even if we didn't have scheduling that would be an inherent feature of what pharmacists do as part of their day to day job. And they were doing that prior to 1998.

PN3713

VICE PRESIDENT HATCHER: But isn't the point this, that if it's scheduled at 4 and above, the primary function of diagnosing the patient and determining the correct medical response, is that of a medical practitioner?

PN3714

MR SECK: I accept that.

PN3715

VICE PRESIDENT HATCHER: Whereas if it goes down to schedule 3, a medical practitioner may not be involved at all and the pharmacist takes on the primary responsibility of diagnosing the patient and determining the correct medical response.

PN3716

MR SECK: That was the case with over the counter medicines anyway. So the fact that medicines may have moved from schedule 4 to schedule 3, is not necessarily any different to a new medicine coming up for the first time and having to actually � which is not put on schedule 4, and put straight onto schedule 4 and a pharmacist having to learn about that new medicine and working out the appropriate circumstances at which it can be provided to a consumer. There is no material difference between those two circumstances. One involves the moving between schedules and another one is just a new medication which has come onto the market, which has just moved onto the pharmacy only schedule. So the fact that that's always happened and that the skills and judgment which needs to be deployed are exactly the same, in my respectful submission demonstrates that the clinical skills and responsibility and the accountability haven't really changed. The circumstances in which a pharmacist is allowed to do that may have changed but the skills and responsibility and the work involved in that hasn't changed. So down-scheduling in itself, in my submission, is not evidence of a change in work practices or work requirements. Can I then deal with - - -

PN3717

MR IRVING: Just while my friend pauses. I notice the time, I notice the deadline. At this stage I will want 20 minutes in reply if that's possible.

PN3718

VICE PRESIDENT HATCHER: Right, thank you.

PN3719

MR SECK: I am coming towards the end. I have already dealt with the � I think, accreditation, I've already dealt with, and I want to come back to the new classification. I then have to deal with workload. I didn't hear too much from my learned friend today on workload but I know he addresses it in his submissions. The issue of workload obviously has many factors which play into it and I put some of those factors to some of the witnesses. And that can be influenced by staffing issues, it could be affected by the time of day at which the pharmacist is working, the particular activity in that particular pharmacy, all the nature of the services supplied to that pharmacy. There are many factors which play into workload. The case law seems to suggest that workload ordinarily is an issue which goes � is not relevant to work value and is more an issue to appropriate staffing levels. In my respectful submission the evidence does not demonstrate that this is an inherent feature of pharmacists' work and that everyone is working a lot harder, and this is somehow different from 1998. And to the extent work intensity has increased, workloads have increased, that is the product of a whole range of factors in respect of which work value is not a relevant consideration.

PN3720

Can I then deal with pharmacy interns. There's a distinct lack of evidence on this point. Ms Thompson gave some evidence as to what she did during her internship program and that was, I think in the last two years. The evidence of Mr Yap was evidence from 1999. The only pharmacist who worked in 1998 who was represented by APESMA did their internship years in the seventies or eighties. There's just an inadequate foundation for the Bench to demonstrate that the work requirements of pharmacy interns in 1998 are materially different from the work which they're doing now. This is a point where I need to raise, I think, some of the evidence which has � and I haven't actually gone to it in a lot of detail, but we have three witnesses who all worked in 1998. APESMA have presented multiple witnesses. Only three of those witnesses were working in 1998, Ms Madden, Ms Malakozis � I hope I'm not mispronouncing her name, and Ms McCallum. So we're talking about three witnesses, versus three witnesses in terms of being able to compare what was happening in 1998 with what's happening now. That's not to say the other witnesses who have been presented by APESMA haven't given relevant evidence. They obviously can give evidence about what they're doing now. But what they can't do is give evidence about what happened in 1998. And the issue of pharmacy interns nicely, or neatly demonstrates one of the lacunas that exists in APESMA's case. That is, trying to work out what happened in 1998 in relation to a whole range of issues, and pharmacy interns is actually a stark example of that.

PN3721

Can I raise one point and I'll come back to it in a bit more detail. There was evidence from Mr Pricolo about the pharmacy interns and one thing the Commission will have to be careful about is, pharmacy interns are, in the nature of apprentices, they're in their first year. And they're obviously being supervised and being trained during their first year in order for them to acquire sufficient skills and experience to move up through the ranks. If the Commission raises the wages for pharmacy interns it will have to be very cautious in doing so because it may only discourage the employment of pharmacy interns if the wage is raised too high. So that is a factor which the Commission will have to take into account under section 134 in determining whether or not there's a fair and relevant wage in meeting the modern award objective, but that is something which I think needs to be considered very carefully because the only person who gave evidence on this was Mr Pricolo.

PN3722

I think I have already dealt with the question of accredited pharmacist, so I can leave that alone. Can I then deal with the modern award objective. I have already made the point that the question on what's fair and relevant has to be what's fair and relevant as a minimum award. Much of the submissions which have been made by APESMA is about ensuring that the rate encourages people to remain in the industry, firstly. Secondly, that this is a regulated industry and there is the capacity to pay for this and the pharmacist should be allowed to share in the profit earned from 6CPA schemes. And thirdly, a comparison of mean wages in other professions to the market wages in the community pharmacy industry. In my respectful submission each of those factors are irrelevant to establishing a fair and relevant wage as part of the conditions of employment to meet the modern award objective. The matters which go to the merit of the actual wages to be paid to employees including whether or not there is a capacity to pay, and a matter of fairness against how other professions may be paid including some professions which are not covered by awards.

PN3723

Having made those general observations can I just go quickly through the relevant matters under section 134 subsection (1) of the Fair Work Act. The key points I want to make firstly are that pharmacists are not low paid, other than pharmacy interns. And I think that's acknowledged by my learned friend. Second, the need to encourage collective bargaining. I accept there are structural features within the pharmacy industry which may make it difficult to engage in collective bargaining. The fact that there are small business owners who employ small numbers of staff who are dispersed over vast geographic areas means that perhaps the economies of scale in being able to negotiate enterprise agreements with those employers are made more difficult as a result. However, two points to bear in mind. Firstly, there is capacity under the Fair Work Act to negotiate Enterprise agreements across multiple employers where it's a single employer and their related body corporates, and the evidence does show that pharmacy owners can own up to four to six pharmacies. And if one assumes there are multiple pharmacists employed across pharmacies then that is not a small business.

PN3724

The second point is - - -

PN3725

VICE PRESIDENT HATCHER: It might get you up to about 20, 25 people.

PN3726

MR SECK: It could do. It could do. But it's not unheard of to have enterprise agreements which cover those number of people. The second point to make is that you could have multi-employer enterprise agreements from across banner groups, for example. So that's another way of dealing with it. And the third point to make is that APESMA haven't even tried. So if one was actually looking at making collective agreements one would actually say, well, what's our strategy here, how can we organise within those industries so we can actually engage in collective bargaining. The consistent evidence and the people who gave evidence in these proceedings on behalf of APESMA were all members of the PPA committee from APESMA, is that none of them were aware of any strategy to negotiate enterprise agreements in the industry except for National Pharmacies. So one has to caution against using this application as a de facto means of dealing with collective bargaining issues. And that's another way of saying, well, it shouldn't be addressing issues of market negotiation. And the Bench heard that most of these employees get paid significantly above the award and if there is going to be a wage increase, any increase is likely to be absorbed by those above award payments anyway. There was evidence, I think, of Mr Le, who says he was subject to, on various occasions, an individual flexibility agreement. Whether or not it was in fact an individual flexibility agreement or not doesn't really matter but he'd obviously negotiated his own agreement which he said he was happy with. If there is an increase in wages I can't say it's going to have an economic impact on most pharmacies because most pharmacies pay above the award. It is relevant however for those who are award reliant, and those who are award reliant are pharmacy interns. So if there's an increase in pharmacy intern wages � and they're the critical people because they're the ones who need to find a job in the industry in the first place, then it may have an impact in discouraging employment and decreasing workplace participation.

PN3727

Then can I deal with the issue of a stable and sustainable modern award system. And it's really circling back to a point which I raised earlier on. That is, the whole basis which underpins the modern award system has been work value principles which have been developed over time and inherited as part of the modern award system. That was obviously done in the context of an award modernisation process where there were tens of thousands of awards which were rationalised into, what, roughly 225 awards. I don't know what the precise number is.

PN3728

VICE PRESIDENT HATCHER: I don't think work value had much to do with that process.

PN3729

MR SECK: No, and I absolutely accept that work value didn't have a lot to do with the award modernisation process. But that's not to say that awards which had been made prior to the award modernisation process had not been set by reference to work value considerations. Obviously some were and some weren't. If we came to the basis upon which work value considerations are determined, that is, by demonstrating significant net addition to work requirements - - -

PN3730

VICE PRESIDENT HATCHER: What do you mean, change the basis?

PN3731

MR SECK: Well, if it's being suggested by my learned friend that the principles which have coalesced to determining work value - - -

PN3732

VICE PRESIDENT HATCHER: That's going back to the premise of it, but the actual wage fixing principles disappeared 13, 14 years ago, didn't they?

PN3733

MR SECK: I don't disagree with that. But it would be wrong to say that principle 6 has not been deployed in various contexts in this Commission both in equal remuneration and in work value context.

PN3734

VICE PRESIDENT HATCHER: You've yet to show us that.

PN3735

MR SECK: I think what I can say is, the Pastoral Award, and I put paragraph 49 there, refers to all these historical principles including principle 6. Now I'm not saying it uses the expression, "significant net addition to work." But it certainly encapsulates the factors which your Honour pointed to in Senior Commissioner Taylor's decision which ultimately led to the formulation of principle 6. The equal remuneration decision also refers to historical work value considerations which led to the crystallisation of those principles in principle 6. Now I'm not saying principle 6 is obviously the benchmark for determining these issues. It isn't. And as my learned friend points out, the language which is picked up in section 156, subsection (4), picks up part of the language in principle 6 and not the entirety of the language. But if one assumes as a premise that there are at least a number of awards which were made pursuant to principle 6 and the traditional work value considerations - - -

PN3736

VICE PRESIDENT HATCHER: There is no award, there's no modern award that was made pursuant to principle 6.

PN3737

MR SECK: No modern award but I think it would be closing our eyes, with respect, Vice President, to how most of these modern awards were in fact set. If they were set on the basis that one assumed that they met the modern award objective, and one of the modern award's objectives is that they set fair and relevant minimum rates, and fair and relevant minimum rates were not a dissimilar criteria under earlier legislation and work value was part of that process, then it does open the door for other applications to be made by other unions to say, well, we wish to reopen our work value issues, and that would be factors that are taken into account in saying it may lead to instability in the modern award system. So that's the only point I wish to make, your Honour. I'm not saying that the test is the same but I do think the premises which underpins wage fixing or the establishment of minimum wages under the modern awards, is inherited from an earlier system which used principle 6 and other work values principles as the basis for calculating the minimum rates in those classifications. And if one opens the door on how work value is calculated which is radically different from what was done previously then in my submission that will be a consideration the Commission needs to take into account in determining whether or not they have to be consistent with a sustainable and stable modern award system as required under the considerations. I note the time.

PN3738

VICE PRESIDENT HATCHER: This Act has been in place for eight or so years, and I think you can count the number of work value cases on the fingers of one hand.

PN3739

MR SECK: I think in terms of the four yearly review, this is probably the third one. I think we've got Pastoral � I concede that � Pastoral Award and the Real Estate Industry Award. But can I point out these two. Real Estate Industry Award was very limited circumstances as your Honour knows because there was no work value assessment there. That was, in effect, done for the first time. I think the Pastoral Industry Award, I think, had regard to the historical circumstances. This is the third one. But it's still one which on the basis which is being advanced by APESMA, puts forward a case which involves as a premise, the historical approach to work value considerations, whilst they're relevant, differ under the statute to how it was done previously. And if that proposition is accepted, which hasn't been advanced previously, in my respectful submission, then it is a relevant consideration in terms of whether or not it promotes a stable and sustainable modern award system. I need to just get some instructions. Can I indicate one more thing, I just forgot to indicate this. If it's helpful, and I don't say it's anything more than � I might leave it alone, sorry. I can't find the piece of paper. May it please your Honour. Nothing further.

PN3740

VICE PRESIDENT HATCHER: Mr Irving?

PN3741

MR IRVING: Yes. Thank you, your Honour. I have ten points. First, about the Commissioner O'Shea decision. We accept the logic of that decision is that these were the relativities that were set. They were set by reference to the C10(?) rate. If there are not work value changes then those relativities as set by that decision should be so affixed at the previous C10 linkage. Now obviously C10 does - because of the flat rate increases over time, doesn't accurately reflect the 140 per cent increase as set out in this document. However that appears to be the starting point if there were no work value increases. If there were work value increases then there would need to be additions onto that. That's point number one.

PN3742

Point number 2 about the Commissioner O'Shea decision is that my friend has said, well, there may well have been a change in relation to the Professional Scientists under the Metal Industries Award or the Manufacturing Award and therefore we can't safely base the new wage rate for pharmacists by reference to that classification because that classification could have changed. But that's always the problem one has in work value cases where you point to an external comparator and say, well, it used to be linked with this rate, but that rate might have changed, and that rate might have changed, et cetera. And one ends up down a worm hole in work value considerations. For example, if one says, oh, well, it was linked to, you know, 140 per cent of the scientist rate and the Metal Industry Award. That might have changed. But of course, it's 140 per cent of the Tradespersons' rate, and that might have changed. And the way in which the Commissions have traditionally dealt with that and which is dealt with in the NSW Industrial Relations Commission decision at paragraphs 141, is to say if you've got a previous relativity and it should be re-established you can proceed on the basis that there has been no relevant change in that other classification unless proved otherwise. That way you do not need to lead evidence, you are not required to lead detailed evidence concerning the work of the hospital scientist or other health professionals in order that the Commission may have regard to salary rates applying when establishing those linkages.

PN3743

The next point is the following. In the initial submissions filed by the Guild they tracked through by reference to the Commissioner O'Shea decision, the relativity in the linkage built between the pharmacy rates, Pharmacy Industry Award rates, and C10. They are the submissions dated 13 June 2017, and the relevant paragraphs are from paragraphs 21 through to 26. And the position that they outline there was that the Commissioner O'Shea decision. It was the first national award covering the industry. And it was based on the Victorian award and the relativities set were first year pharmacist, 140 per cent, C10; second year pharmacist, 7 per cent above, et cetera. It said the rates for the supervisory levels broadly aligned to professional scientist level within that award.

PN3744

VICE PRESIDENT HATCHER: What are the dates of those submissions?

PN3745

MR IRVING: Those submissions are dated 13 June 2017. And they're titled, "Outline of submissions for the Pharmacy Guild of Australia."

PN3746

VICE PRESIDENT HATCHER: Right.

PN3747

MR IRVING: It was part of the Pharmacy Guild's case from the beginning that there was this linkage. And they say, well, there was no work value change. But as Mr Seck concedes, there has been no work value decrease and it would appear to flow from that that those linkages are the appropriate linkages.

PN3748

VICE PRESIDENT HATCHER: Yes, except that would have implications for every award of the Commission if we took that approach.

PN3749

MR IRVING: Nobody leapfrogs a tadpole. I mean, we're at the bottom of the heap at the moment and the notion that teachers are going to be lining up, or nurses or any of the other classifications are going to be lining up, seems somewhat far-fetched in circumstances in which these professional (indistinct).

PN3750

VICE PRESIDENT HATCHER: The point is that award relativities for higher pay classifications in all awards were awarded because of the flat rate increases awarded over a period of a decade or more.

PN3751

MR IRVING: Yes. Yes, I appreciate that, your Honour. But this is a case in which we've not only established � that is an appropriate point even if there were no workplace changes but it would be rare for an organisation to be able to come along and justify variations by reference to work value changes. That will be the bar. The second point that I wish to make is in relation to the document which is exhibit 30. My friend drew attention to the CPD obligations mentioned there and readily concede it's part of the role of the professional to keep up to date. That's what happens. But there are a couple of things that I just wanted to mention about that. He says, well, the regulations or the determination that existed at the time referred to existing codes and standards of practice. But when one looks at the standards of practice that were existing that's in exhibit 30, looked at the standards of practice that are referred to there in paragraph 3, it says, "The standards of practice which are applicable are those set out in sections titled 'Dispensing practice and counselling and additional instructions for dispensed medicines.'" So it wasn't about broader professional standards existing at the time, it was about dispensing practise, how one goes about dispensing.

PN3752

The next point I wanted to draw your Honours' attention to is in relation to the comparison of the codes of conduct. My friend says, well, they're materially the same. The majority of the obligations are the same � in essence are the same, the language may be different. One of the things about the codes of conduct, as with the other standards is this. They are expressed in language that needs to be understood by 27,000 pharmacists. They're expressed in simple terms. There is no magic to their interpretation, they should be interpreted like any other document. Our case is, the words mean what they say. Where there's been a change it's apparent by looking at the things, side by side. And in circumstances in which one can see on its face, an obvious and clear change then there is an obvious and clear change. And the gloss to suggest otherwise is incorrect.

PN3753

The third point is in relation to exhibit 25 and my friend took you through in some detail, exhibit 25, the competency standards from 1994, which is in the circumstances, somewhat extraordinary, extraordinary in circumstances in which no one says this is ever binding, no one says that this was the expectation, no witness says this was the expectation. No one says this was endorsed prior to 2001. My friend says, well, this expresses concerns existing prior to 1994. I'm not quite sure where that takes him but it does express those concerns. It certainly doesn't take him anywhere near as high as saying, well, this was how practice was engaged in prior to 1994. This was competencies that existed prior to 1994.

PN3754

VICE PRESIDENT HATCHER: It was obviously prepared at a fairly high level. One can at least infer that it reflected the understanding of those people who prepared it.

PN3755

MR IRVING: Yes, so - - -

PN3756

VICE PRESIDENT HATCHER: And I see it's not � it wasn't prepared in fantasy land or something, it's - - -

PN3757

MR IRVING: No. No. Absolutely. But there is a difference between the nabobs of the industry getting together and saying, look, this is what we should do in the future, and the Registration Board saying yes, that will be the competencies for the future. There is a link between the two. My friend has various, quite speculative constructions of this document as to how it garners life. He says, well, you know, there's a validation process and � well, what I understand to be validation is something that was never the subject of the evidence. And what the consultation process was, you know, would ordinarily be, but that was never the subject of the evidence. What actually happened hasn't been the subject of the evidence. He says that this was rationalising similar schemes in each state, and this is the process that he has gone through with a number of documents to say, look, on one construction there might have been some stuff out there in the states and therefore this is, what, some sort of codification of a dozen documents that you've never seen? It's an unsafe conclusion.

PN3758

The next point is in relation to the comparison of the practice standards and he says when you look at them side by side, what you will see is that they are essentially the same and there's no real difference, and he makes particular reference to dose administration aids and comprehensive medication review. I invite the Commission to look at those documents side by side and we say the words mean what they say, and it's not just the words different but the substance is clearly and obviously different.

PN3759

The next point is in relation to the University of Sydney handbook and material there. It's suggested that what the university were doing were teaching the practice. And it's said, well, it must have been the practice by 1997 for certain things to have occurred as it was moving to a four year degree. And he points to the handbooks in 2000 and says, well, this was teaching the practice from which had been established in the industry in previous years. The handbooks from 1995, 1994, 1993, they're not produced. They could have been produced. And if he was right that the university was teaching the practice then we could have looked at the 1993 books and seen that, oh, my God, they were teaching back in 1993, all of these QUM principles and these CPS courses. Instead, he points to material in 2000 and tries by some process of construction to say, well, this is a reflection of changes which have occurred five years before. The material is not present there to support that tenuous construction.

PN3760

The third last point is in relation to CPD's. My friend said, well, we've conflated units and hours and that you can do a course which goes for an hour and it can earn you multiple units. I don't think that's the evidence. I think the evidence is that a unit equates to an hour. In Ms Madden's statement on page 6, she equates units and hours. We've done a search as best we can find in the period we've got but I understand it, that's the factual position. In relation to scheduling my friend says, well, the pharmacists have always needed to know about these drugs and therefore there's no increase in knowledge or skill as a result of down-scheduling. But when it goes into schedule 3 the pharmacist has primary responsibility for determining whether or not there will be, or will not be, medication given and what sort of medication given. There's responsibility, increased responsibility when there's more drugs in schedule 3, and on the evidence there's been a 60-fold increase. We've moved from one to 60, a 60-fold increase in responsibility as a result of down-scheduling. Unless there is anything further from the Commission - - -

PN3761

VICE PRESIDENT HATCHER: Mr Irving, in respect of your client's claim I don't think we still yet have an understanding of how the figures are calculated. That is, what the percentages are, what they're based on and how they derive from the previous relativities. Can you file a document, say, in seven days which explains all that?

PN3762

MR IRVING: Yes. And I will keep it to fewer than two pages, and hopefully (indistinct).

PN3763

VICE PRESIDENT HATCHER: All right, thank you. All right, if there is nothing further, subject to the receipt of that further note, we reserve our decision and we thank counsel for this submissions, and we'll now adjourn.

ADJOURNED INDEFINITELY�� [3.55 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #30 HUMAN SERVICES AND HEALTH DETERMINATION GAZETTED 29/11/1995............................................................................................................. PN3527