TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009����������������������������������������������������
JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER HUNT
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
(AM2014/209)
Pharmacy Industry Award 2010
(AM2016/15)
Plain language re-drafting
Melbourne
9.30 AM, WEDNESDAY, 22 FEBRUARY 2017
Continued from 15/12/2016
PN654
JUSTICE ROSS: Could I have the appearances, please, firstly in Melbourne?
PN655
MS K BIDDLESTONE: If the Commission pleases, I appear on behalf of the SDA; Biddlestone, initial K.
PN656
JUSTICE ROSS: Thank you.
PN657
MS R LIEBHABER: If the Commission pleases, I appear on behalf of the HSU; Liebhaber, initial R.
PN658
JUSTICE ROSS: Thank you, and in Sydney?
PN659
MS J LIGHT: It's Ms Light, initial J, for the Pharmacy Guild of Australia, and with me in Canberra Mr Harris, initial S, and Ms Blandfort, initial Z.
PN660
JUSTICE ROSS: Thank you. In Adelaide?
PN661
MR C KLEPPER: If the Commission pleases, Klepper, initial C, for Business SA.
PN662
JUSTICE ROSS: Thank you. In Newcastle?
PN663
MS THOMSON: If the Commission pleases, Thomson, initial K, for the New South Wales Business Chamber and Australian Business Industrial.
PN664
JUSTICE ROSS: Thank you. As you will have noticed, Commissioner Hunt is sitting on the Bench by video from Brisbane. Are there any other appearances? No? Can I go then to - on the basis of the summary of submissions document that was published on the website: I just want to test my understanding of the position in relation to some of those issues. In relation to issue four, the coverage point, there appears to be general agreement. In relation to the issue in 13 on hours of work, or clause 13, there appears to be general agreement. In relation to item 16, junior wages and 18, allowances, penalty rates, clause 21 and schedule A, there appears to be general agreement.
PN665
The four areas that - where there appears to be some dispute, are the issue of on-hire - clause 2, definitions - it may not be a dispute but a clarification issue; part-time employment, there appears to be an issue in relation to what I think is actually clause 10.12 in the revised exposure draft but there is an issue there. There is an issue in respect of the casual conversion proposition and there appears to be an issue - though its scope is fairly narrow - in relation to clause 14, rostering arrangements. Is that broad division - does anyone take issue with that? No? Well, that - then what I propose to do, subject to anything anyone wishes to say about it is to focus on those four matters and the rest of the matters - well, we understand what you all say and we'll obviously take all that into account.
PN666
MR KLEPPER: Excuse me, your Honour - sorry.
PN667
JUSTICE ROSS: Yes.
PN668
MR KLEPPER: I do believe schedule A is in a dispute too at the same time, which is the definition of the dispensary assistant, especially on what was put forward by the Bench to be included in the document. The Guild has got significant reservations, objections to what point.
PN669
JUSTICE ROSS: Well, is there anything further you want to say about it other than what's in your written submission?
PN670
MR KLEPPER: The main part is we put forward to the Bench an agreed provision - - -
PN671
JUSTICE ROSS: No, I don't want to know - I don't want you to repeat your written submission. I want to know whether there is anything in addition you wish to say.
PN672
MR KLEPPER: Nothing at the moment, your Honour.
PN673
JUSTICE ROSS: Is there anything anyone else wishes to say about that issue? No, all right. Well, we'll have regard to your submissions in finalising the definition of dispensary assistant. Can we go back then to the other four matters? The first deals with the definition of, "on hire."
PN674
VICE PRESIDENT HATCHER: As I understand it, there is a general consensus that as proposed in the latest exposure draft there should be a deletion of the terms, "on-hire employer and on-hire employee," and insertion of the proposed definition of simply, "on hire." The submissions have some debate in them about whether the client itself needs to be an employee covered by the award. But I'm just wondering why that is an issue of relevance, given that the coverage clause makes it clear that it only covers on-hire employees working in the community pharmacy industry, so community pharmacy is a defined term which is now, I think, agreed.
PN675
So it would be sufficient whether or not the community pharmacy is itself an employer covered by the award that the on-hire employee works in a community pharmacy. Does anyone take a different view than that?
PN676
MS BIDDLESTONE: We'd say that they were the submissions that the unions were making.
PN677
VICE PRESIDENT HATCHER: Yes. Does any other party take a different view from that?
PN678
MR KLEPPER: If the Commission pleases, Business SA - I do apologise, also: my colleague, Karen van Gorp, is the one who is fully across this submission but I believe that Business SA was - took slight concern with paragraph 77 in the decision of 2017 Full Bench 344. Just in that decision where the question was asked whether the client - so the person who has engaged - sorry, I won't say engaged: the person who has engaged the on-hire employer to provide the on-hire employee where it says they acquire that status by being supplied with the labour and my understanding was Business SA's concern was where that person who has engaged on the on-hire employer to be provided with the on-hire employee isn't themselves part of the community pharmacy industry.
PN679
So say they're a - they work in a hospital or they are an educational provider who has for whatever reason engaged this employee or this on-hire provider; we're just concerned about whether they acquire that status by being supplied with that on-hire labour.
PN680
VICE PRESIDENT HATCHER: Well, if we just focus upon the coverage clause, 4.1 gives a definition of community pharmacy. 4.2 makes it applicable to employers in the community pharmacy industry and their employees, so they're direct employees of pharmacies as defined. As 4.3 says if you're an on-hire employee and you're working in the community pharmacy industry, which connotes as I would read it a community pharmacy business as defined, then you're covered and your employer - that is the labour-hire company - is covered. So I'm not quite sure how the scenario you're talking about would arise under that terminology but if you think that's wrong, tell me.
PN681
MR KLEPPER: Thank you for that clarification there. I will confer with my colleague when she arrives but I'm sure that shouldn't be - I'm sure it's cleared that up.
PN682
JUSTICE ROSS: All right, well, can you - is it possible if you've got any additional comments reply in writing in 24 hours if your colleague doesn't show up fairly soon?
PN683
MR KLEPPER: Yes, can do that, thank you.
PN684
JUSTICE ROSS: All right, is there anything else anyone wishes to say in respect of that issue - that is the on-hire matter? No? Can I go to the second of the contentious matters, part-time employment: there seems to be general agreement that there is no tension between clauses 10.5 and 10.8. The SDA seek the addition of a number of words in different parts of the part-time work provision and that's commented on by the others. I don't think we need to get much more elaboration on that.
PN685
It's the point that both the SDA and the Guild make about clause 10.10. Is that really a point directed at point 10.12? This is about the working of additional hours. Is that - I think the reference might have been to an earlier exposure draft but I'm looking at the revised exposure draft that was published on 20 January 2017.
PN686
MS BIDDLESTONE: Your Honour, I thought our comments were in relation to 10.10 and it was in relation to whether or not the variation had to be in writing.
PN687
JUSTICE ROSS: The Guild seems to accept that it should be in writing?
PN688
MS BIDDLESTONE: Yes, we do too, so we're happy to - - -
PN689
JUSTICE ROSS: Okay, so it is 10.10 we're talking about?
PN690
MS BIDDLESTONE: Yes, your Honour.
PN691
JUSTICE ROSS: I couldn't - no, I follow. So the proposition is that 10.10 would be by mutual agreement in writing. Is that the essence of it?
PN692
MS BIDDLESTONE: That's correct. In our submissions I think we made a suggestion for referencing the initial clause where the agreement is reached, which provides for agreement in writing but we're happy if the - if 10.10 - - -
PN693
JUSTICE ROSS: Either way?
PN694
MS BIDDLESTONE: Yes.
PN695
JUSTICE ROSS: Yes, okay. No, I follow, and the Guild seems to be in agreement with that, as is Business SA. Does anyone have a different view? No? Well, other than the - - -
PN696
VICE PRESIDENT HATCHER: Ms Biddlestone, it's paragraphs 15 and 16 of the union's first submission. It refers to clause 10.10 but I understood that 16 is actually referring to 10.12 of the latest exposure draft.
PN697
JUSTICE ROSS: That's where you think it might alter the current meaning?
PN698
MS BIDDLESTONE: Sorry, which paragraph?
PN699
VICE PRESIDENT HATCHER: Yes, paragraphs 15 and 16 of the union's submissions of 6 February.
PN700
JUSTICE ROSS: It's that point where you might be referring to 10.12, is that right? If you have a look at that while I just - - -
PN701
MS BIDDLESTONE: Sorry.
PN702
JUSTICE ROSS: - - wrap up the point in relation to 10.10: so the proposition on 10.10 - as I understand it was generally agreed - two propositions: one is the parties are content with the idea that there is no tension between 10.5 and 10.8, which are now 10.8 and 10.10 and in relation to 10.10 that is the provision that provides that there can be a change by agreement to rostered hours that such an agreement would be in writing. Anyone have a contrary view to that? No? Well, let's go to the issues that seem to arise in relation to 10.12. Is that where the union says that the current wording may later the legal effect of the current award? Is that the proposition?
PN703
MS BIDDLESTONE: Yes, I apologise for that.
PN704
JUSTICE ROSS: No, that's all right.
PN705
MS BIDDLESTONE: That reference should have been 10.12.
PN706
JUSTICE ROSS: All right.
PN707
MS BIDDLESTONE: Yes, that is what that's in reference to.
PN708
JUSTICE ROSS: In a nutshell what's the - - -
PN709
MS BIDDLESTONE: The current wording specifies that the additional hours that are worked by a part-time employee as a casual employee subject to the casual employee provisions of this award and I think the changed wording is that, "May agree to work additional hours on that day on the terms applicable to a casual employee.
PN710
JUSTICE ROSS: Yes, and what do you say the difference is?
PN711
MS BIDDLESTONE: We were just concerned that it could be broader than just the payment of wages for - although it would be in the current wording as well. I'm just trying to - - -
PN712
JUSTICE ROSS: So, for example, it's the concept that if working additional hours is almost like a separate contract of employment - - -
PN713
MS BIDDLESTONE: Yes.
PN714
JUSTICE ROSS: So there is no question of the additional hours accruing for leave purposes because of simply getting the casual loading.
PN715
MS BIDDLESTONE: No.
PN716
JUSTICE ROSS: Yes, I think we discussed that on the last occasion, that it's intended that they would get the 25 per cent loading and that they would accrue the hours worked in that capacity - the additional hours - would not accrue for leave purposes.
PN717
MS BIDDLESTONE: That's correct.
PN718
JUSTICE ROSS: Well, I just don't understand the - - -
PN719
MS BIDDLESTONE: Yes, well - - -
PN720
JUSTICE ROSS: I think there is a degree of - I think the same concern that you're raising arises under the current clause.
PN721
MS BIDDLESTONE: Yes, I think on reflection of going through this process and the discussions that have arisen with the contention between the additional hours, provisions in the award, the SDA I suppose now have some concerns about the operational aspects of the award, particularly where it provides for an employee on a permanent contract, working an additional contract.
PN722
JUSTICE ROSS: Yes - look, I think - - -
PN723
MS BIDDLESTONE: But I note that this may not be an option.
PN724
JUSTICE ROSS: No, no, that's a different issue and I understand that.
PN725
MS BIDDLESTONE: Yes, yes.
PN726
JUSTICE ROSS: If we look at the drafting, though, I don't think - - -
PN727
MS BIDDLESTONE: No, I think it should be okay.
PN728
JUSTICE ROSS: Yes, I think the drafting doesn't change the legal effect. As I understand it, as you're putting it now, you may have a more fundamental concern with the provision at all.
PN729
MS BIDDLESTONE: Yes.
PN730
JUSTICE ROSS: And I think if that's the case then if you can send in some correspondence identifying what it is and what variation you seek, then that may become a substantive issue in relation to these matters. I note that the guild appears to have changed its position in respect to a number of matters as well. So once we get to the end of this process you'll either have a further discussion amongst yourselves and reach an agreed position or we'll arbitrate on those matters and give each party an opportunity to say what they wish to say.
PN731
MS BIDDLESTONE: Yes.
PN732
JUSTICE ROSS: All right, is there anything else in relation to part-time employment? No, then can I go to casual employment - - -
PN733
MS LIGHT: Your Honour - sorry. We did make our submissions in relation to the omission of the words, "regular pattern of work."
PN734
JUSTICE ROSS: No, no, I understand that. Yes, no, I understand that you're seeking those words in and the others have responded.
PN735
MS LIGHT: Yes, okay.
PN736
JUSTICE ROSS: It wasn't that we've missed it.
PN737
MS LIGHT: That's fine.
PN738
JUSTICE ROSS: It's just that that seemed a straightforward argument on that side, that's all.
PN739
MS LIGHT: Yes, okay.
PN740
JUSTICE ROSS: Was there anything else you wanted to say about that?
PN741
MS LIGHT: No, no, thank you.
PN742
JUSTICE ROSS: Anything else anyone wants to say about part-time? Casual employment - the issue here - well, the divide appears to be - well, I thought it was about whether or there is a casual conversion clause in the award. But it appears from the reply submissions of the guild that it may be the form of the clause. So can I just clarify from the employer's side - if we start with the Guild: is your position that you do not oppose a casual conversion clause going into the award but the debate it about the form of that clause? Is that where you're at?
PN743
MS LIGHT: Yes, your Honour.
PN744
JUSTICE ROSS: Is that the same position with the other employers or do any of them take a different view?
PN745
MS THOMSON: No, your Honour.
PN746
JUSTICE ROSS: No, well, I think the resolution of this issue should really await the part-time and casuals Bench decision because the form of the casual conversion clause was at issue in those proceedings. To avoid any inconsistent decisions and the like, there are two options. Once the - perhaps we might deal with it this way: once the part-time casuals decision is handed down, then I might have a short telephone conference with all the parties and try to work out then what you want to do about the casual conversion clause. If there is going to be a debate about it, then I'll simply refer it to the casual part-time Full Bench to resolve.
PN747
But I think it's best to await the determination in that decision. All parties can consider that, see whether it impacts on their respective positions, then I'll have a short telephone conference. But if there is going to be a debate about it - about the form of casual conversion - then I think that would be best dealt with by the casual part-time Full Bench. Everybody happy with that? All right. Can we go then to I think the rostering arrangements issue? This is in clause 14. The SDA and Business SA supported the proposed amendment, I think, that was in the - the provisional view was expressed about. The Pharmacy Guild does not, for the reasons it expresses. Is there anything further the Pharmacy Guild wants to say about this?
PN748
MS LIGHT: Not at this stage, your Honour.
PN749
JUSTICE ROSS: When you say, "Not at this stage" I always get slightly anxious because this may be the only stage because otherwise we will determine it on the basis of the written submissions. I'm not saying that by way of encouraging you to repeat them but I just don't want you to think there is necessarily going to be another go at it.
PN750
MS LIGHT: No, your Honour. I think the parties have had a fairly good go at this issue.
PN751
JUSTICE ROSS: I think that's a fair description, yes.
PN752
MS LIGHT: So there is nothing further that we would have to say in relation to that.
PN753
JUSTICE ROSS: Is there anything anyone else wants to say about that issue? No? All right. Well, I think that deals with all of those matters that are - that remain in contention. There was - we did receive correspondence I think last week, last Friday, attaching some draft determinations in relation to a range of issues. I understand that those determinations are broadly agreed by the major parties?
PN754
MS LIGHT: They are agreed, your Honour, yes.
PN755
JUSTICE ROSS: What we'll do is give consideration to what has been raised in your submissions on these matters, either determine them or seek more material in relation to them. We will then re-publish an exposure draft reflecting those changes. In relation to the proposed variations that the parties have put forward on minimum shift provisions for school students, grades at which junior rates should apply, payment of overtime to casuals and the coverage of the annualised salary rate, we'll look at those.
PN756
To the extent that we think they might need some plain language redrafting, if they do then they would be put into the revised exposure draft. You'll be given an opportunity to comment on that, all right? Is there anything further at this stage? No? All right then, thank you very much. We'll adjourn on the basis I've indicated.
ADJOURNED INDEFINITELY��������������������������������������������������������� [9.53 AM]