PN1

JUSTICE ROSS: Can I have the appearances please, firstly, in Sydney?

PN2

MR S HARRIS: Harris, S, your Honour.

PN3

JUSTICE ROSS: Thanks, Mr Harris. And in Melbourne?

PN4

MS K BIDDLESTON: Katie Biddleston for the SDA.

PN5

JUSTICE ROSS: Okay, thank you. So I put out a background paper yesterday in trying to capture where this matter's up to because it had been the subject of two submissions by the Pharmacy Guild. And in a decision dealing with the tranche 1 awards the Full Bench indicated that the matters raised by the guild would be the subject of a conference before me. The date was moved back but what I've sought to do in the background paper is firstly encapsulate the issues that remain outstanding; secondly, it seems that for a number of those issues I think they can be dealt with, pretty shortly because they're the subject of other proceedings, et cetera, and I'll come back to those. Can I go to you first, Mr Harris, and just confirm that the issues that are identified in the background paper are the issues of concern to the guild in relation to the plain language draft that was published on, I think, 2 December.

PN6

MR HARRIS: They all are, your Honour, on that part, still there. I can clarify one part. If (indistinct) of the background paper, 3(f) can be removed because you've had decisions that have put in a couple of words into the latest version of that one, and based on � the members seemed to be a bit happier with the terminology. They could understand it from there.

PN7

JUSTICE ROSS: All right, so we can say 3(f) is resolved.

PN8

MR HARRIS: Yes.

PN9

JUSTICE ROSS: And if I go through the remaining matters and I might just - - --

PN10

MR HARRIS: Clarify them?

PN11

JUSTICE ROSS: Yes, well try and just clarify where we're up to. If we go to the district allowance matter, that's both 3(i) and it's also noted at 6(f). My understanding is that that matter is reserved by another Full Bench, that they will make a decision on it, I'm told relatively shortly. When they do we will vary the plain language exposure draft to give effect to that decision. So I think that will resolve that issue. In relation to 3(n), this is the annual leave loading question, that issue was the subject of comment in a plain language Full Bench decision, I think in August this year. And we indicated that in an earlier iteration we had put out � we'd accepted Ai Group's proposition provisionally, and we had suggested a set of amendments to give effect to Ai Group's submission. As we noted in, I think, the August decision, nobody supported that proposition and we'll address that in a decision shortly. And it may be that the result is that rather than a common position across all awards, we simply provide for an award by award consideration of the issue and if parties wish to seek clarification in relation to their award they can make an application to vary. But in any event, whatever the outcome of that matter by the plain language Full Bench, that will address that issue.

PN12

That leaves, in terms of the matters on 15 March, the issue in 3(1) and I wasn't sure, if we look at the latest iteration of the plain language - - -

PN13

MR HARRIS: It has � sorry, your Honour - - -

PN14

JUSTICE ROSS: Yes.

PN15

MR HARRIS: It has improved and it's got better on the terminology being consistent all the way through. However, it's just come to light in the last couple of weeks, the Queensland Government is passing legislation regarding the part day public holidays.

PN16

JUSTICE ROSS: So similar to South Australia?

PN17

MR HARRIS: Yes.

PN18

JUSTICE ROSS: So that issue may � is the part day public holiday associated with Christmas?

PN19

MR HARRIS: Yes.

PN20

JUSTICE ROSS: Okay.

PN21

MR HARRIS: Based on all our understandings that it is going to go through parliament, not a problem up there.

PN22

JUSTICE ROSS: All right. Well, that won't just be a matter for your award.

PN23

MR HARRIS: No.

PN24

JUSTICE ROSS: Okay.

PN25

MR HARRIS: So what it's really tossed up to us is the language being used, because the public holiday is base rate; schedule E uses ordinary rate on the pay rates to go with it � the argument's going now is because there's six to seven o'clock, if that went back to six o'clock instead of seven o'clock in accordance with the award, what is that six to seven paid as? Is it paid as base or ordinary?

PN26

JUSTICE ROSS: All right.

PN27

MR HARRIS: We all understood the argument when we were in this room here, about they were the same terms.

PN28

JUSTICE ROSS: Yes.

PN29

MR HARRIS: But outside of us there's no decisions to indicate that.

PN30

JUSTICE ROSS: All right. Well, let's park for a moment the part day public holidays, because that just won't be a matter for the Pharmacy Award. We will need to do something about that relatively quickly.

PN31

MR HARRIS: Yes.

PN32

JUSTICE ROSS: But there is at least a model for dealing with that.

PN33

MR HARRIS: Yes.

PN34

JUSTICE ROSS: So there's that issue. But let's focus on the one you've just mentioned. Can I get you to take these steps. Communicate to the SDA as to precisely what the issue is and what variations or clarification you would seek in relation to the latest version of the plain language draft, and once you've communicated that have a discussion with the SDA to see if you can reach an agreement. And then submit a report to the Commission setting out where you're up to, whether if you've been able to agree, what it is, what the changes you propose, et cetera. If not, then at least what your respective positions are.

PN35

And really it's then a question of, well, how soon do you think you can do that. Because my thinking is I'd then bring it back on for a short conference just to clarify where it is, because your two organisations aren't necessarily the only ones with an interest in this. So we publish your report and then say, we're having a conference about that, if anyone wants to comment on the report they can come along to the conference. And then hopefully that process can resolve it, or at least we can have a pathway to resolution. So when do you think you'd be in a position to do something about that?

PN36

MR HARRIS: I'm reasonably confident, I just look � go to Katie for some consideration for what she's got on her cars and everything else.

PN37

MS BIDDLESTON: Sorry. Sorry, can you just speak closer into the mic? I'm just having � sorry.

PN38

JUSTICE ROSS: No, no problem.

PN39

MR HARRIS: Sorry about that, Katie. It all will depend on Katie's availability on what her time's like, and her capability to come back once I get a report to her. So I'll need at least a week for myself.

PN40

JUSTICE ROSS: Okay.

PN41

MR HARRIS: And then I'll give it to Katie to see what her time's like, in line with other problems she's got ongoing.

PN42

JUSTICE ROSS: All right. Ms Biddleston, what do you think your � if you get something from the guild in a week setting out, well, here's the issue they want to raise, bearing in mind this isn't the part day public holiday and we'll need to deal with that more broadly, if you get that in a week when do you think you'd be able to respond and have a conversation with Mr Harris?

PN43

MS BIDDLESTON: Maybe if I could have a week that would be good.

PN44

JUSTICE ROSS: All right. Well, look, why don't we � and look, this can be varied if required, so what we would be looking at would probably be the week commencing � if you can, Mr Harris, on that basis, get me a report by Friday 13 December - - -

PN45

MR HARRIS: Yes, or sooner?

PN46

JUSTICE ROSS: Yes, or sooner. And as soon as you get it in my chambers will be in contact with each of you to work out a convenient time for a conference, hopefully the following week and so we can wrap the matter up. But let's see how we go, all right? Then if we go to the matters, and I'm at paragraph 5 of the background paper, the remaining outstanding issues. Okay, part-time employees proportionate basis - the Mondelez Full Court decision is the subject of a special leave application the High Court, and the issue you've raised, I understand the point broadly but it would also be one that would arise in almost every award. So I think probably the best way to approach that is to wait and see what happens in the High Court, see what happens if there's a legislative response, and then see where we go with it. Are you content with that?

PN47

MR HARRIS: I'm more than content with that, your Honour. It was more just bringing to, here's this on the table, we may need to do something about this.

PN48

JUSTICE ROSS: Yes. No, it's one more thing.

PN49

MR HARRIS: Yes.

PN50

JUSTICE ROSS: No, no, absolutely. The 6(c) matter is the annualised salary. Now that's before the Annualised Salary Full Bench and the question that's asked is whether a draft determination has been issued. Can I say the same thing with the district allowance. Once a variation determination has been made by that Full Bench it will be reflected in the plain language draft. So we won't miss it. It will be picked up and transferred across.

PN51

MR HARRIS: I just don't know � I haven't seen one come across my desk of a draft determination, in regards to putting it into the PIA. So that's my position. I don't know what Ms Biddleston - - -

PN52

JUSTICE ROSS: Katie, you haven't seen one, have you, yet?

PN53

MS BIDDLESTON: Not that I can recall, no.

PN54

JUSTICE ROSS: All right. I'll make some inquiries about where it's up to and endeavour to get one to you. Do I understand that there's no issue in dispute, it's model 3 that will go in, and it's just a question of the variation determination giving effect to that?

PN55

MR HARRIS: That's my position.

PN56

JUSTICE ROSS: Is that yours, Ms Biddleston?

PN57

MS BIDDLESTON: Yes, that's my understanding.

PN58

JUSTICE ROSS: All right. I've deal with the district allowance matter. That brings us to 6(l) and 6(m). And, look, I just had a bit of trouble - - -

PN59

MR HARRIS: What we're doing � okay, sorry, your Honour.

PN60

JUSTICE ROSS: That's all right.

PN61

MR HARRIS: Have you got that in front of you?

PN62

JUSTICE ROSS: I do, yes.

PN63

MR HARRIS: So what was brought to my attention, and going with there was, if you look at schedule B - - -

PN64

JUSTICE ROSS: Yes, I've got that.

PN65

MR HARRIS: B1.1 - - -

PN66

JUSTICE ROSS: Yes.

PN67

MR HARRIS: And if you look at the table it goes from 8am to 7pm.

PN68

JUSTICE ROSS: Yes.

PN69

MR HARRIS: Then it goes, morning, 7am to 8am.

PN70

JUSTICE ROSS: Yes.

PN71

MR HARRIS: And then goes, 7pm to 9.00, and then 9.00 to midnight. No problems, at all. But when you go across to B.1.2 - - -

PN72

JUSTICE ROSS: Yes.

PN73

MR HARRIS: It goes up in chronological order on the time schedules, starting at the earliest time and working its way up.

PN74

JUSTICE ROSS: Yes.

PN75

MR HARRIS: So the - - -

PN76

JUSTICE ROSS: So you think it should be - -

PN77

MR HARRIS: If we go - - -

PN78

JUSTICE ROSS: Firstly, between 8am and 6pm, and then � - -

PN79

MR HARRIS: Or we go back to how the other ones, B.1.2 is done, is starting at the earliest time and working up through the day.

PN80

JUSTICE ROSS: I think it probably makes more sense to start with the longest spread.

PN81

MR HARRIS: Yes.

PN82

JUSTICE ROSS: Because that covers when most people work. And then where the loadings � we should start with the hundred per cent rates, for short - - -

PN83

MR HARRIS: Yes.

PN84

JUSTICE ROSS: Or, you know, in the case of Saturday, the 125 rate.

PN85

MR HARRIS: Yes.

PN86

JUSTICE ROSS: So what's the baseline, and then you get more for early, more for late?

PN87

MR HARRIS: That is the only thing, it's not � this is what brought it to my attention. It was the consistency - - -

PN88

JUSTICE ROSS: No, no. I follow that. I think that would mean that - - -

PN89

MR HARRIS: Saturdays and Sundays and everything else would just be the same as the casual, just moving the base rate to the first one and then put all the penalties after that.

PN90

JUSTICE ROSS: Yes. Yes, no problem. All right, do you have any difficulty with that change to B.1.2, Ms Biddleston? It's simply a re � it's not changing any of the amounts.

PN91

MS BIDDLESTON: Change?

PN92

JUSTICE ROSS: It's just a re-ordering of the columns so that the, as is the case with B.1.1 where your hundred per cent rate at 8am to 7pm is the first column and then where there's a departure from that, that follows, simply with B.1.2, on a Saturday the first column would be the column between 8am and 6pm, the 125 per cent rate.

PN93

MS BIDDLESTON: Look, that's fine.

PN94

JUSTICE ROSS: All right. Then if we go to schedule C - - -

PN95

MR HARRIS: It was the inclusion of the allowance that was branded through the work value case.

PN96

JUSTICE ROSS: Yes. And has that variation determination been made?

PN97

MR HARRIS: That has been released and everything else and it's due to come into effect on 1 October this year.

PN98

JUSTICE ROSS: Right, okay.

PN99

MR HARRIS: Now the question is that comes to here, there's a note underneath indicating that this allowance is the mechanism of a separate Full Bench.

PN100

JUSTICE ROSS: No, it's the � I think there's an issue � I've not looked at it that closely but okay, so the Full Bench that dealt with the work value issue have determined the allowance, right?

PN101

MR HARRIS: Yes.

PN102

JUSTICE ROSS: What didn't seem clear was how do you adjust the allowance?

PN103

MR HARRIS: If, or if it did adjust?

PN104

JUSTICE ROSS: Yes, well, yes, the same point.

PN105

MR HARRIS: Yes.

PN106

JUSTICE ROSS: And the Act � just bear with me for a moment and I can turn up the provision, I think � it's 149 of the Act.

PN107

MR HARRIS: Yes.

PN108

JUSTICE ROSS: And 149 provides that, and I'll read it:

PN109

If a Modern Award includes allowances that he Commission considers are of the kind that should be varied when wage rates in the award are varied, the award must include terms providing for the automatic variation of those allowances when wage rates in the award are varied.

PN110

So what we're not clear about is, well, what, as you say, if any, mechanism for variation is there for this new allowance? And that's probably a matter best dealt with by that other Full Bench. But leaving that aside for a moment, and I can leave that with both of you to take whatever steps before that Full Bench that you wish to take about the adjustment of that allowance, but in terms of including the allowance that's been determined, we will do that. There's no issue about that, okay. Ms Biddleston, have you given any thought to how that allowance is to be adjusted, or whether it's to be adjusted?

PN111

MS BIDDLESTON: Sorry, your Honour, I've just had some people walk past and I'm having a bit of trouble hearing. I might close the door.

PN112

JUSTICE ROSS: Yes, sure.

PN113

MR HARRIS: Actually, I might have to go to PPA on this one because they're the ones who own the pharmacist.

PN114

JUSTICE ROSS: That's fine.

PN115

MS BIDDLESTON: Sorry, can you just repeat that last bit?

PN116

JUSTICE ROSS: Yes, look, this issue at 6(m), and you've had a decision which has awarded an allowance, as I understand it, for the performance of home medicine reviews, or residential medication management reviews, okay, by the other Full Bench. The point that's raised by Mr Harris' organisation is, well, that needs to be reflected in the plain language exposure draft. And I think that's plainly right and we will vary the draft to give effect to that other Full Bench decision.

PN117

The issue that is raised for you to each consider is, is that allowance to be adjusted for movement in wage rates, or not? And if so, what's the method for adjusting that allowance. And that's a reference to section 149 of the Act. And I was simply making the point that that issue is really a matter for the Full Bench that decided to award the allowance in the first place, and I think you need to raise with them what the position is, all right?

PN118

MS BIDDLESTON: Yes. Look, I think that was the case run by HESMA(?) so what I might do is get in contact with the industrial officer who ran that case and just go through with her what you've raised today so that they might think about how they need to proceed.

PN119

JUSTICE ROSS: Yes. Because on the face of it at the moment it doesn't seem that there is an adjustment mechanism, and that may or may not have been intended. But they will need to do something about that if they think it should be adjusted and they'll need to do it pretty quickly, and bring it to the - - -

PN120

MS BIDDLESTON: I'll get onto them straight away.

PN121

JUSTICE ROSS: And bring it to the attention of that other Full Bench. So it's the operation of section 149, and as Mr Harris has indicated, he'll get some instructions from his organisation and then you can sort it out with the other Full Bench. Suffice to say whatever the other Full Bench comes up with, we'll adopt. We're not about re-litigating the point. We'll just translate whatever the outcome is of their processes, into the plain language draft. That being the case, in essence, is that where we're up to?

PN122

MR HARRIS: That's my belief, we are up to that stage, your Honour.

PN123

JUSTICE ROSS: All right. I'll do a short statement reflecting the outcome of the conference. I'll await the district allowance and the annual leave loading decisions and once they're down we'll issue a further plain language exposure draft which will incorporate those changes, the scheduled changes that I've mentioned, and will incorporate the allowance determined by the other Full Bench. And that should complete the exercise and then we'll publish draft variation determinations and everyone will have a final opportunity to comment. All right, anything else? No? If anything occurs, you just shoot in a note copying it to the other party with an interest, and we'll endeavour to deal with it and move on. And I'll see you after you've filed the report to hopefully wrap up that remaining issue around the terminology question.

PN124

MR HARRIS: Yes.

PN125

JUSTICE ROSS: All right, thanks very much for your attendance. I'll adjourn.

ADJOURNED INDEFINITELY�� [9.57 AM]