PN1

VICE PRESIDENT HATCHER: All right, I'll take appearances. Ms Light, you appear for the Pharmacy Guild in Sydney with Mr Harris in Canberra?

PN2

MS J LIGHT: May it please.

PN3

VICE PRESIDENT HATCHER: In Newcastle, Ms Thomson, you appear for ABI and NSW Business Chamber?

PN4

MS K THOMSON: Yes, your Honour.

PN5

VICE PRESIDENT HATCHER: And in Melbourne, Ms Liebhaber, you appear for the HSU?

PN6

MS R LIEBHABER: Yes.

PN7

VICE PRESIDENT HATCHER: Ms Biddlestone, you appear for the SDA?

PN8

MS K BIDDLESTONE: Yes, your Honour.

PN9

VICE PRESIDENT HATCHER: And Ms Baulch, you appear for APESMA?

PN10

MS BAULCH: Yes, your Honour.

PN11

VICE PRESIDENT HATCHER: We have three issues to discuss today in terms of the plain language draft. The first is the coverage clause with respect to labour hire employees. In the January 2017 draft, this is clause 4.3(a). Am I right in saying, Ms Biddlestone, you had an issue with the drafting of that clause?

PN12

MS BIDDLESTONE: No, your Honour. It was actually Business SA which raised the initial issues, but I think it was in response to a question from the Full Bench.

PN13

VICE PRESIDENT HATCHER: Well, let me put it this way: does anyone present have any issue with the drafting of 4.3(a) of the January 2017 exposure draft?

PN14

MS LIGHT: No, your Honour.

PN15

VICE PRESIDENT HATCHER: All right, well that's easy. I'll report to the Full Bench that the parties who attended agreed that that's an appropriate draft. The second issue goes to the overtime clause, which appears in clause 20 of the exposure draft, and in particular, the plain language amendments which are set out in tracked changes in paragraph 80 of the Full Bench's decision of 27 March. Does any party have any issues with that amended drafting?

PN16

MS LIGHT: Your Honour - - -

PN17

MS BIDDLESTONE: Your Honour, the unions agree with the changes.

PN18

VICE PRESIDENT HATCHER: All right. Ms Light?

PN19

MS LIGHT: There are two minor issues. At the proposed draft clause 20.1 - - -

PN20

VICE PRESIDENT HATCHER: Can I just pause - can everyone in Melbourne hear Ms Light? Can everyone in Melbourne hear Ms Light speaking?

PN21

MS LIEBHABER: Yes, your Honour.

PN22

VICE PRESIDENT HATCHER: Yes, all right, go on.

PN23

MS LIGHT: The word, "employee", should read, "employees."

PN24

VICE PRESIDENT HATCHER: Where's this?

PN25

MS LIGHT: The "s" has been struck out - at clause 20.1: "An employer must pay all employees" - it must be a plural, not a singular.

PN26

VICE PRESIDENT HATCHER: Yes, it needs to say, "pay an employee" - yes, I see. Yes? There would be no dispute with that, would there?

PN27

MS BAULCH: No.

PN28

VICE PRESIDENT HATCHER: Yes, that's the first one.

PN29

MS LIGHT: And there was just one proposed amendment to that sentence. There has been removal of the reference to clause 20.3, which provides for the relevant overtime rates.

PN30

VICE PRESIDENT HATCHER: Yes.

PN31

MS LIGHT: However, the clause now requires an employer to pay all employees at the overtime rate. There are a number of overtime rates, so it may assist users of the award to refer to the relevant, appropriate overtime rate, as opposed to just the overtime rate, given that there are several.

PN32

VICE PRESIDENT HATCHER: Yes, I understand. Does any party have any issue with that change?

PN33

MS THOMSON: No, your Honour.

PN34

VICE PRESIDENT HATCHER: No? All right, that's the second one.

PN35

MS LIGHT: That was all, your Honour.

PN36

VICE PRESIDENT HATCHER: So are they all the issues we have with the overtime clause? Yes, all right. The third one goes to the proposed definition of, "Pharmacy assistant - level 3." This was dealt with in the latest exposure draft at schedule A.3 at page 34, and at paragraph 85 of the 27 March Full Bench decision, and paragraph 86 says an alternative position advanced by the Pharmacy Guild which removes the list of indicative duties. Do you just want say something about that, Ms Light?

PN37

MS LIGHT: Yes, your Honour. This arose because the Guild did propose a definition that was somewhat amended in the revised exposure draft issued on 20 January. In looking at the way that the proposed draft fits within the current classification structure, it seems incongruous that for a pharmacy assistant or dispensary assistant, level 3 there are indicative tasks listed that could be tasks performed by pharmacy assistants across all levels of the award. The primary difference between a dispensary assistant and a pharmacy assistant is that a dispensary assistant performs their duties in the dispensing section of the pharmacy, and whilst they do perform some of those duties it's not necessary the duties that distinguish the type of work but where they perform it and the level of supervision under which they work. So in our view, the more appropriate way of dealing with it was potentially just to list dispensary assistant as in the current award, and to not set out - - -

PN38

SPEAKER: Sorry, I didn't hear that.

PN39

MS LIGHT: And to not set out - - -

PN40

VICE PRESIDENT HATCHER: Just move that microphone a bit closer, Ms Light.

PN41

MS LIGHT: Sorry. And to not set out the indicative tasks, as currently proposed in the exposure draft.

PN42

VICE PRESIDENT HATCHER: Where do we get the meaning of the term, dispensary assistant, from without that list of duties?

PN43

MS LIGHT: There currently isn't one, and his Honour, President Ross, I believe, suggested that it might be appropriate for the parties to consider one. The Guild then proposed one and have subsequently appreciated that it may not work, taking account of the remaining levels and the classification structure in the award. So currently each level is based on the appropriate competency or qualification that the employee has. It's not linked to the tasks or duties that they perform.

PN44

VICE PRESIDENT HATCHER: Yes, so in your draft how does 8.3(b) fit into that?

PN45

MS LIGHT: That is the wording from the existing classification for a level 3 under the award.

PN46

VICE PRESIDENT HATCHER: Yes, all right. What do other parties want to say about either what's in the exposure draft or the Pharmacy Guild's proposal?

PN47

MS BAULCH: Your Honour, it's Jackie Baulch from APESMA. We actually agree with the Guild that at level 3 there are two types of employee: there's the pharmacy assistant who does not necessarily work in the dispensary but from time‑to‑time does do some of the work that a dispensary assistant would do under the (indistinct). A dispensary assistant works in the dispensary under the supervision of a pharmacist performing the tasks that the Guild has proposed. We agree with the Guild's list of tasks and the way they've set it up. They actually are competencies that these people obtain when they obtain a qualification, and if it would assist the Commission - I haven't discussed this with the Guild - but if it would assist the Commission we could possibly redraft them into competencies, consistent with the qualification that both the Guild and the PSA run to qualify these people, if that would assist the Commission.

PN48

All these things are on the competencies that they have to acquire to get this qualification - this dispensary assistant qualification. So that might assist, but the problem is, as was pointed out, some of these duties are done by pharmacy assistants and dispensary assistants, and others are done just by dispensary assistants, so it is a bit of a complication. But we all agree, I think, that we need to have something in here to define what a dispensary assistant is. It's just how we do it.

PN49

VICE PRESIDENT HATCHER: Yes, so just to be clear, does the supervision of other pharmacy assistants, that is itself a pharmacy assistant level, or might a dispensary assistant do that? Anybody can answer that.

PN50

MR I HARRIS: Your Honour, it's Harris. The dispensary assistant may, if they've got the responsibility, supervise level 1s and level 2s, and the PA and that, but predominantly they are working within the dispensary area. The original one we put forward to the Bench was all those tasks were put together as a list of items that the dispensary assistant would do; however, it seems the drafter decided to spread it out into a list running down the page with "or" between them all.

PN51

MS BAULCH: Mm, where it can be "and", "and", and "and."

PN52

MS LIGHT: And it certainly wouldn't be appropriate for a person who is only ordering, unpacking and re‑packing stock to be treated as a level 3 in accordance with the award. It's not the intention of that classification level. It's a Certificate III qualified staff member.

PN53

VICE PRESIDENT HATCHER: Even if they've got the competencies?

PN54

MS LIGHT: If all they're doing is ordering, unpacking and re‑packing stock, I would say they wouldn't be able to be at a level 3, and they certainly wouldn't have the competencies required to perform work at that level.

PN55

MS BAULCH: We would agree with that.

PN56

MS LIGHT: And the difficulty, as Mr Harris noted, arose from a rather different looking definition that the Guild proposed that the plain language drafter has amended.

PN57

MS BAULCH: Maybe we could go back - I'm sorry, it's Jackie Baulch - maybe we could go back and look at the Pharmacy Board definition, which says - because that's the regulatory authority, for his Honour's benefit - - -

PN58

VICE PRESIDENT HATCHER: Sorry, does anyone have with them the exposure draft - yes, the December 2016 draft? At B.3 at page 36, if anyone has it, is that the existing definition?

PN59

MS BAULCH: What one are we talking about?

PN60

VICE PRESIDENT HATCHER: I just happened to have it in my folder - the exposure draft from December last year, so it's not the latest one; it's the one before that - and the relevant definitions at schedule B, B.3 at page 36, if anyone's got it, it's different. I'm assuming that's the current definition. Well, perhaps put it this way: was there any difficulty with the definition as it stands in the existing award?

PN61

MS LIGHT: No, your Honour. It was President Ross who raised whether the definition of a dispensary assistant would assist in understanding the award, but I understand that the parties have their own view and understanding of what that term means, and we're not aware of any difficulties within the industry of that classification being applied.

PN62

VICE PRESIDENT HATCHER: Again, just to tease this out, can it simply be said that a dispensary assistant is a person who works in the dispensary to assist the pharmacist?

PN63

MS LIGHT: I'd have to seek some instructions from the Guild, your Honour.

PN64

VICE PRESIDENT HATCHER: Yes. Mr Harris, do you have any view about that?

PN65

MR HARRIS: It's actually a little bit more than that, your Honour.

PN66

MS BAULCH: I agree.

PN67

MR HARRIS: They've got a series of tasks and jobs they have to do, which is up to at least a level 3 standard, a Certificate III standard, on when they're performing their role.

PN68

VICE PRESIDENT HATCHER: If you look at all the drafts, including the Pharmacy Guild draft, they all start with the first four lines, that is, you have to have the competencies to be the holder of a Certificate III and you have to be required to work at that level, so I don't think there's any argument about that, is there?

PN69

MS BAULCH: No, there's not.

PN70

VICE PRESIDENT HATCHER: So then the argument remains is whether dispensary assistant is something that everyone understands so well that it needs no explanation whatsoever, or whether it needs some form of explanation?

PN71

MS BAULCH: It does need an explanation.

PN72

VICE PRESIDENT HATCHER: Sorry?

PN73

MS BAULCH: I'm just looking at - we've just found the one from December.

PN74

VICE PRESIDENT HATCHER: It doesn't really define dispensary assistant either.

PN75

MS BAULCH: No, it doesn't.

PN76

VICE PRESIDENT HATCHER: So it doesn't take it much further.

PN77

MS BAULCH: I actually have brought in the Pharmacy Board, which is the regulatory authority, and it says - and maybe we can use these words somewhere:

PN78

Dispensary assistant -

PN79

or pharmacy technician, whatever you want to call them -

PN80

works under the direct and personal supervision of a pharmacist to assist in the selection, processing and labelling of prescription medicines.

PN81

And then it goes on:

PN82

Their duties include dispensary stock control or preparing dose administration, aids, et cetera.

PN83

And blah blah blah. So that's sort of short and succinct. Maybe Mr Harris and I could perhaps come up with something that adds that in there, because you're right, your Honour, the level 3 definition starts off saying you must have the level 3 certificate and competencies, and then we could perhaps just add this sentence in that shortens it, because the way it sits at the moment, you'd think that everybody at level 3 was a dispensary assistant, where that's actually not the case.

PN84

VICE PRESIDENT HATCHER: In terms of the Pharmacy Guild proposed definition, I think everyone agrees with it so far as it goes, is that right?

PN85

MS BAULCH: Yes.

PN86

VICE PRESIDENT HATCHER: And so the only question is whether we add a (c) to talk about what a dispensary assistant does, or whether we assume that we know what it is.

PN87

MS BAULCH: Well, I'm always one for actually defining - if there is an occupation like that, and there is, and it's a growing occupation within the community pharmacy industry, there needs to be - and there's a growing number of people with a Certificate III - there needs to be some sort of definition of those people in the award so that everybody knows where they should be classified.

PN88

VICE PRESIDENT HATCHER: Put it this way, leaving aside pharmacist, is there any situation where a person would work in the dispensary and not be a dispensary assistant?

PN89

MS BAULCH: Other than a pharmacist?

PN90

VICE PRESIDENT HATCHER: Yes, other than a pharmacist?

PN91

MS BAULCH: A pharmacy assistant may walk into and - but they're not really supposed to be.

PN92

MR HARRIS: I'd agree with that comment, your Honour.

PN93

VICE PRESIDENT HATCHER: Yes.

PN94

MS BAULCH: They do sales and that from the dispensary sometimes - - -

PN95

VICE PRESIDENT HATCHER: Mr Harris, you were going to say - - -

PN96

MS BAULCH: - - - but they don't do stock selection or labelling or anything like that. That's restricted by legislation.

PN97

VICE PRESIDENT HATCHER: Mr Harris, were you going to say something?

PN98

MR HARRIS: I just concurred with PPA's answer on that one previously, your Honour, that it's only - a dispensary assistant is performing those tasks, at a PA level 1 or a PA 2, may serve a customer that's already received their goods, but anything to do with the dispensing of the medicines is a dispensary assistant under the supervision of a pharmacist.

PN99

VICE PRESIDENT HATCHER: It seems to me that a dispensary assistant, 1) works in the dispensary, 2) under direct supervision of a pharmacist, and 3) performing dispensing functions.

PN100

MS BAULCH: Yes.

PN101

VICE PRESIDENT HATCHER: How does that sound?

PN102

MR HARRIS: That's the basic part of it, your Honour.

PN103

MS BAULCH: That's absolutely right.

PN104

VICE PRESIDENT HATCHER: Can we do it that way?

PN105

MS BAULCH: Yes.

PN106

MS LIEBHABER: Yes, your Honour.

PN107

VICE PRESIDENT HATCHER: All right. So we will use the Pharmacy Guild definition that's in paragraph 86 of the last exposure draft - - -

PN108

MS BAULCH: Yes, that's fine by us.

PN109

VICE PRESIDENT HATCHER: - - - and add a (c) which says what I've said, that is:

PN110

Performs the duties of a dispensary assistant, that is, works in the dispensary, works under the direct supervision of a pharmacist, and performs dispensing functions.

PN111

MS BAULCH: It's basically assisting the pharmacist perform their role.

PN112

VICE PRESIDENT HATCHER: Assist the pharmacist performing dispensing functions. Can we leave it on this basis: I will prepare a modified draft of that, I'll issue it to the parties, and can the parties advise me within seven days whether that's an acceptable proposal or whether they want to make some further modification? And please, if there's any modification, discuss it among yourselves in the seven days, if you can, to see if you can come up with any agreed modification.

PN113

MR HARRIS: Yes, your Honour.

PN114

MS BAULCH: Yes. That's fine by us, sir.

PN115

VICE PRESIDENT HATCHER: Yes. All right, is that all the issues?

PN116

MS THOMSON: Sorry, your Honour, it's Ms Thomson here.

PN117

VICE PRESIDENT HATCHER: Yes?

PN118

MS THOMSON: I think there may have been some misunderstanding, your Honour, about the purpose of this afternoon's conference. I think Business SA, we've had some discussions with them and some of the other employer organisations in relation to the on‑hire issue, and I do think that there's some further discussion which is required with respect to that issue.

PN119

VICE PRESIDENT HATCHER: I thought we'd passed that, but all right, anyway, what's that?

PN120

MS THOMSON: It is continuing to be, I think, primarily driven by Business SA and it's in the context of some other issues that have arisen with respect to other awards which are particularly important to the South Australian community, such as the Wine Industry Award which is highlighted in the Full Bench's judgment from March. I do think that they didn't appreciate that that issue is going to be the subject of discussion today, and that might have arisen out of some correspondence which was issued from your Chambers, which is possibly just an error in communication between the parties, and I think it may be appropriate if we are able to convene a conference to discuss that issue discretely because I think it may have some further effects with respect to other awards beyond the Pharmacy Award.

PN121

VICE PRESIDENT HATCHER: What might have further effects?

PN122

MS THOMSON: The definition of, "on‑hire."

PN123

VICE PRESIDENT HATCHER: In the January 2017 draft?

PN124

MS THOMSON: Sorry, it's the issue which you've raised at clause 9, 10, 11 and 12 of the judgment.

PN125

VICE PRESIDENT HATCHER: Yes. I'm just asking are the issues satisfied by reference to what's contained - let me put it this way - the Business SA position arose, as I understand it, in response to a concern the SDA had about the proposed draft in my recollection.

PN126

MS LIGHT: Your Honour, I actually think it arose from a question from the Bench in the January decision.

PN127

VICE PRESIDENT HATCHER: All right. Rather than focussing upon what is said to be the intentions - I'm looking at paragraphs 12 and 13 - I'm really focussed upon the January 2017 draft at 4.3(a). Was there any difficulty with that draft?

PN128

MS BAULCH: Not from the unions.

PN129

MS BIDDLESTONE: No, your Honour.

PN130

VICE PRESIDENT HATCHER: Sorry, Ms Thomson, I was really directing that at you.

PN131

MS THOMSON: The definition that's at the heart of I suppose the concern, your Honour, is not the community pharmacy definition but the on‑hire issue.

PN132

VICE PRESIDENT HATCHER: Yes, 4.3(a), page 10.

PN133

MS THOMSON: I think there may be some outstanding concerns in that regard, your Honour.

PN134

VICE PRESIDENT HATCHER: What are they?

PN135

MS THOMSON: Again, your Honour, this is an issue that Business SA had particular concerns with, so I'm more sort of advocating on their behalf in their absence, because as I said, I think there was a misunderstanding as to what was going to be discussed today. Perhaps it might be appropriate then, your Honour, to offer them the opportunity to provide some further comment if they don't consider the issue to be resolved?

PN136

VICE PRESIDENT HATCHER: Ms Thomson, what was the misunderstanding? I'm confused.

PN137

MS THOMSON: There was some correspondence which issued from your Chambers, your Honour, which said that this conference was going to be for the purpose of discussing the issue at 80 of the decision, which is the overtime issue.

PN138

VICE PRESIDENT HATCHER: Sorry, paragraph 18?

PN139

MS THOMSON: Paragraph 80, sorry, your Honour - the overtime issue.

PN140

VICE PRESIDENT HATCHER: Yes, well we're past that. What, is there extra about that as well? Are you saying the correspondence omitted the reference to the coverage issue?

PN141

MS THOMSON: Yes, your Honour.

PN142

VICE PRESIDENT HATCHER: I see. Just hold on a sec.

PN143

MS BIDDLESTONE: Your Honour, sorry, some - - -

PN144

VICE PRESIDENT HATCHER: Just hold on a sec - yes, go on.

PN145

MS BIDDLESTONE: It's Ms Biddlestone from the SDA. I just wanted to flag that I understand Ms Thomson's point; however, Business SA were afforded an opportunity to provide further written submissions about this particular issue and have done so. I am not sure whether there would be extra value in having another conference about it. It was thoroughly discussed at the hearing.

PN146

VICE PRESIDENT HATCHER: Yes, all right. Just hold on a second. All right, Ms Thomson, what I'll do is I'll have inquiries made from my Chambers as to whether Business SA has any further issues with clause 4.3(a), and if they do then I'll make a determination as to what further step we need to take.

PN147

MS THOMSON: Thank you, your Honour.

PN148

VICE PRESIDENT HATCHER: But just to be clear, your organisation has no concern with the draft?

PN149

MS THOMSON: We're currently considering our position, your Honour, and we'll advise you as soon as we can.

PN150

VICE PRESIDENT HATCHER: Okay. Is there anything further I can deal with today?

PN151

MS THOMSON: Nothing from us, your Honour.

PN152

VICE PRESIDENT HATCHER: Thank you. We will now adjourn.

ADJOURNED INDEFINITELY�� [4.46 PM]