Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – Plain language project – drafting Guidelines – Pharmacy Industry Award 2010 – plain language drafting issues.

Table of contents

Abbreviations

1. Introduction

[1] As outlined in the Statement issued on 15 July 2016 1, the plain language re-drafting project comprises several elements, including reviewing the standard clauses in modern awards generally, as well as reviewing award-specific clauses in certain awards that have been selected for re-drafting as part of the project. In the first tranche of the project five modern awards have been selected for plain language re-drafting, namely:

● Pharmacy Industry Award 2010;
● Clerks—Private Sector Award 2010;
● General Retail Industry Award 2010;
● Hospitality Industry (General) Award 2010; and
● Restaurant Industry Award 2010.

[2] These awards have been selected based on the relatively high level of award reliance among employers and employees in the industries covered. In selecting the modern awards to be re-drafted in plain language particular weight has been given to the extent of award reliance among small businesses, on the basis that such businesses are unlikely to have dedicated human resource management specialists or expertise. Consideration will be given to selecting further modern awards for plain language re-drafting, in the first half of 2017. The number of modern awards selected will be dependent on the resources available to the Commission. 2

[3] This decision deals with the finalisation of the plain language drafting guidelines (the draft Guidelines) and certain award-specific clauses in the Pharmacy Industry Award 2010 (the Pharmacy Award).

2. The Plain Language Drafting Guidelines

[4] The draft Guidelines have been developed by the plain language expert engaged by the Commission, Mr Eamonn Moran PSM QC. The draft Guidelines were published on 9 November 2016 and interested parties were invited to make submissions. Submissions were received from:

● Australian Industry Group (Ai Group)
● Australian Council of Trade Unions (ACTU)
● Australian Manufacturing Workers’ Union (AMWU)
● Business SA
● Shop, Distributive and Allied Employees Association (SDA)
● Textile, Clothing and Footwear Union of Australia (TCFUA)

[5] The submissions raise two general points in addition to a number of comments directed at specific guidelines.

[6] The first general point concerns the potential for plain language drafting to change the legal effect of an award term. Paragraph 1.4 of the draft Guidelines states:

‘The aim of plain language drafting is to make the document as simple and easy to understand as possible without taking away from precision or omitting necessary information or changing the legal effect of the document.’ (emphasis added)

[7] The ACTU 3 submits that:

‘…the Guidelines should make clear that the plain language re-drafting process should never introduce interpretation issues or result in a change to the legal effect of the award. The objective of preserving the legal effect must take absolute precedence over the goal of making awards simpler and easy to understand.’ (emphasis added)

[8] Similar submissions were advanced by the SDA 4 and the AMWU5. The SDA also seeks clarification as to how the Commission will deal with consent positions reached in respect of substantive claims.

[9] Ai Group submitted that a new guideline should be added to expressly state that plain language drafting is not intended to change the legal effect of award clauses.

[10] We agree with the proposition that the plain language re-drafting of modern awards is not intended to change the legal effect of existing award terms. But we reject the proposition – advanced by the ACTU and others – that the plain language re-drafting process should ‘never…result in a change to the legal effect of the award’. Such a proposition introduces an unwarranted rigidity to the plain language re-drafting process. The current proceedings in relation to the Pharmacy Award illustrate this point.

[11] In the Pharmacy Award, on a plain reading of the current term in respect of casuals, it does not provide a process for the conversion from casual to part-time employment, despite the fact that the principal interested parties (the SDA and the Pharmacy Guild of Australia (The Pharmacy Guild)) appear to have applied the award in a way that provides for such a conversion in certain circumstances. In the event that there is consent to the inclusion of a casual conversion term it is desirable that such a term be considered as part of the plain language drafting process.

[12] Clause 19.6 – Transport of employees reimbursement – of the Pharmacy Award provides a further illustration. It is not clear from the current award term whether an employee is only entitled to be reimbursed for the cost of a taxi fare (in the circumstances defined in the clause) ‘from the place of employment to the employee’s usual place of residence’, or whether the entitlement extends to travel to and from the employee’s work and usual residence. The plain language re-drafting of this term has highlighted the ambiguity in the current award term. It is desirable that this ambiguity be resolved, even if it results in a change to the legal effect of the award.

[13] We will amend the draft Guidelines to make it clear that the aim of plain language drafting is to make the award as simple and as easy to understand as possible without unintentionally changing the legal effect of the award.

[14] The second general point raised in the submissions concerns the weight to be accorded to the consent of interested parties. The SDA submits as follows:

‘The interested parties are regular users of the Award with knowledge of the award history, interpretation of the current provisions and how the award is applied in practice. This is particularly relevant where the drafter has dropped terminology which provides the foundation for a particular provision and has a specific industrial meaning. The parties are able to identify where the plain language draft has changed the legal effect or created potential interpretation issues. The consent positions of the parties should be taken into account and adopted by the drafter throughout the process.’ 6

[15] Ai Group also deals with the issue of consent, albeit in a different context, and submits:

‘…some award clauses are the outcome of extensive negotiations between employer and union representatives, and ultimately were reached by consent. It is important that the plain language drafting exercise does not unnecessarily disturb these consent provisions and lead to disputation.’ 7

[16] Section 156 of the Fair Work Act 2009 (Cth) (the FW Act) provides that the Commission must conduct a 4 yearly review of modern awards. The Commission must review all modern awards and may, among other things, make determinations varying modern awards. The nature of the Review is quite different to inter partes proceedings. Section 156 imposes an obligation on the Commission to review all modern awards and each modern award must be reviewed in its own right. The Review is conducted on the Commission’s own motion and is not dependent upon an application by an interested party. Nor is the Commission constrained by the terms of a particular application. 8 The Commission is not required to make a decision in the terms applied for9 and, in a Review, may vary a modern award in whatever terms it considers appropriate, subject to its obligation to accord interested parties procedural fairness and the application of relevant statutory provisions, such as ss.134, 138 and 578.

[17] In times past, awards were made in settlement of industrial disputes and the respondent parties to such awards were the parties to the relevant industrial dispute. The nature of modern awards under the FW Act is quite different from awards under previous legislative regimes 10 and they perform a very different function to that performed by awards of the past.

[18] Modern awards are not made to prevent or settle industrial disputes between particular parties. Rather, the purpose of modern awards, together with the National Employment Standards and national minimum wage orders, is to provide a safety net of fair, relevant and enforceable minimum terms and conditions of employment for national system employees (see ss.3(b) and 43(1)). Further, there are no named respondents to modern awards. Modern awards apply to, or cover, certain persons, organisations and entities (see ss.47 and 48), but these persons, organisations and entities are not ‘respondents’ to the modern award in the sense that there were named respondents to awards in the past. The nature of this shift is made clear by s.158 which sets out who may apply for the making of a determination to make, vary or revoke a modern award. Under previous legislative regimes the named respondents to a particular award automatically had the requisite standing to make such applications; that is no longer the case. 11

[19] A consequence of the shift in the nature and purpose of modern awards is that the weight to be given to the views of interested parties is, generally speaking, less now than it was previously.

[20] Decisions to redraft and modify the language used in modern awards are not taken lightly. There has been some resistance to the re-drafting of award terms in plain language, but the fact that the proceedings to date have generated some debate about the actual entitlements of employees under various current award provisions confirms the need for such a process. The objective of the plain language project is to remove ambiguity, promote certainty and make awards simpler and easier to understand, consistent with the statutory direction to take into account the ‘need to ensure a simple, easy to understand, stable and sustainable modern award system’ (s.134(1)(g) of the FW Act). An objective of the plain language project is to avoid future disputation by providing clarity about the rights and responsibilities of those covered by modern awards.

[21] The Commission intends to engage in an extensive consultation process in each element of the plain language project to ensure that the re-drafting process does not unintentionally alter the legal effect of any award term. In the plain language re-drafting of a modern award we will have regard to the views expressed by interested parties, but we reject the proposition that the Commission should simply adopt the ‘consent positions of the parties’.

[22] As to the SDA’s additional point, generally speaking, significant weight will be given to the consent of interested parties in respect of the merits of a proposed substantive change. But in drafting an award term to give effect to such a change we will adopt the same approach as that taken to the plain language re-drafting of existing award terms. In the event that a differently constituted Full Bench determines a substantive claim in relation to an award which is part of the plain language re-drafting project, then the terms of any variation will be reviewed by this Full Bench. Such a review will not revisit the merits of the substantial matter which has been determined, nor will it alter the legal effect of that determination.

[23] We now turn to the submissions directed at particular aspects of the draft Guidelines.

[24] Paragraph 1.5 of the November 2016 draft Guidelines states:

‘Awards that are not as simple and easy to understand as they can be cost money by creating the need for employers and employees to seek advice from paid advocates.’

[25] Business SA comments on this paragraph and submits that ‘there are other pressing outcomes of plain language awards that could be stated prior to this outcome and that the current wording at 1.5 be replaced’. No alternate text to replace paragraph 1.5 was proffered.

[26] We see no need to amend paragraph 1.5. As the Commission has previously observed, an award should be able to be read by an employer or employee without needing a paid advocate to interpret how it is to apply in the workplace.

[27] Paragraph 3.11 of the November 2016 draft Guidelines states:

‘Schedules are used in modern awards for matters of detail and of a supplementary or ancillary nature to that covered in the main body of the award.’ (emphasis added)

[28] Business SA submits that the word ‘and’ be replaced by ‘or’, on the basis that some material which appears in the schedules to modern awards – such as wage rates – are not properly characterised as ‘supplementary or ancillary’.

[29] It is appropriate to recognise that Schedules to awards may include substantive matters that can conveniently be contained together in a Schedule as well as matters of detail and matters of a supplementary or ancillary nature. We will amend the draft Guidelines in a manner consistent with Business SA’s submission.

[30] Paragraphs 3.14 and 3.15 of the November 2016 draft Guidelines states:

‘3.14 Use ‘Notes’ to provide factual information or point the reader to a relevant provision of the award. A Note should generally appear at the end of a provision (whether a clause, subclause or paragraph) but may appear after the heading in appropriate cases.

3.15 ‘Guidelines’ may be included to explain how a provision or set of provisions are to be used or what their function or role is. They are not themselves ‘legislative material’ but are intended to help the reader to better understand the ‘legislative material’ to which they relate.’

[31] Business SA comments on these paragraphs and submits that the ‘Guidelines’ referred to in paragraph 3.14, ‘appear to be very like ‘notes’ but which may also allow for examples which parties have noted would be better placed in an annotated version of the award’. At the conference on 23 November 2016 Business SA confirmed that it had no in principle objection to the inclusion of notes in modern awards. 12

[32] In our view, the reference in paragraph 3.15 of the draft Guidelines to ‘Guidelines’ confuses the distinction between what is intended to be covered by that paragraph and ‘Notes’. The draft Guidelines will be amended to delete the word ‘Guidelines’ in paragraph 3.15 and replace it with ‘Examples’. Examples give a worked illustration of the operation of a provision while Notes provide factual information. To make clear the distinction between ‘Notes’ and ‘Examples’, an example will be included in the text of the Guidelines to illustrate the practical application of the two concepts.

[33] As to the role of examples in modern awards, this was dealt with in a Full Bench decision of 23 December 2014, 13 (the December 2014 Full Bench decision), which addressed a number of general drafting and technical issues common to multiple exposure drafts:

‘The exposure drafts have incorporated the use of a select number of examples to provide additional guidance to employers and employees as to the operation and interpretation of award provisions.

A number of parties opposed to the inclusion of examples in the exposure drafts. Business SA and the AFEI submitted that the use of a select number of examples did not advance the objective of modern awards to be ‘simple and easy to understand’ and that by extending the length of the award with examples, the modern award objective would be undermined. ABI and New South Wales Business Chamber Ltd submitted that a solution to this issue would be to insert a hyperlink to the example as opposed to being in the body of the instrument itself.

Some parties also submitted it was not clear which examples would be included, how many and whether they would be regarded as terms of an award. Business SA asserted the inclusion of examples in a modern award as a legal instrument would have a binding effect and that managing and updating such examples would be an inefficient use of the Commission’s limited time and resources. Similarly, the Horticulture Taskforce noted examples did not reflect existing practice and past examples had not been reintroduced as part of the Part 10A award modernisation process in 2012.

Conversely, the Ai Group did not oppose the inclusion of examples within the awards, provided the examples were relevant and accurate.

In our view the inclusion of relevant and accurate examples will make modern awards easier to understand and for that reason will be included where appropriate.’ 14 (footnotes omitted)

[34] We agree with the proposition that the inclusion of relevant and accurate Examples make modern awards easier to understand and for that reason Examples will be included in the awards which are part of the plain language project, where appropriate. However, Examples (and Notes) should not be overused as they can be disruptive to the flow of the text. A statement to this effect will be included in the Guidelines.

[35] Paragraphs 5.4, 5.5 and 5.6 of the November 2016 draft Guidelines state:

‘5.4 To indicate that a series of 3 or more paragraphs or subparagraphs are cumulative, consider using the expression ‘each of the following’, or similar.

5.5 To indicate that a series of 3 or more paragraphs or subparagraphs are exclusive, consider using the expression ‘any of the following’, or similar.

5.6 Do not include both cumulative and exclusive provisions in the same series of paragraphs or subparagraphs. Do not use ‘and/or’.’

[36] Business SA comments on these paragraphs and requests that the use of the words ‘and’ and ‘or’ in these situations also be addressed.

[37] It is not entirely clear what is sought by the submission advanced, as the use of the conjunctive ‘and’ and the disjunctive ‘or’ are dealt with (at least by implication) in paragraphs 5.4 and 5.5. In any event, after further consideration we have decided to use both expressions such as ‘each of the following’ and conjunctives to indicate that a series of paragraphs are cumulative (see paragraph [67] of this decision). We have also decided to use a ‘lead in’ expression such as ‘any of the following’ and the disjunctive ‘or’, to indicate that a series of three or more paragraphs are exclusive. The Guidelines will be amended accordingly. The word ‘and’ will now be added at the end of each of the paragraphs which are intended to be cumulative. The word ‘or’ will be added at the end of each of the series of paragraphs which are intended to be exclusive. The ‘lead in’ words will not be used in a series of just 2 paragraphs or subparagraphs as the use of a conjunctive or disjunctive is sufficient to clearly convey the meaning, without an additional indication in the ‘lead in’ text.

[38] We have also decided to change the ‘lead in’ words which indicate that a series of 3 or more paragraphs or subparagraphs are cumulative. In the November 2016 draft Guidelines the ‘lead in’ words suggested were ‘each of the following’ and we propose to change the ‘lead in’ words to ‘all of the following’.

[39] Paragraphs 5.7 and 5.8 of the November 2016 draft Guidelines state:

‘5.7 The use of a “sandwich clause” should be avoided. A sandwich clause is one in which a series of paragraphs or subparagraphs is enclosed or “sandwiched” by the opening and closing lines of a sentence.

For example: This award does not cover employment in:

(a) a pharmacy owned by a hospital or other public institution; or
(b) a pharmacy operated by government,

where their goods or services are not sold by retail to the general public.

5.8 A sentence comprising 2 series of paragraphs or subparagraphs in one sentence should not be used.
For example: Community pharmacy means any business conducted by the employer in premises:

(a) that are registered under the relevant State or Territory legislation for the regulation of pharmacies; or
(b) are located in a State or Territory where no legislation operates to provide for the registration of pharmacies;
and
(c) that are established either in whole or in part for the compounding or dispensing of prescriptions or vending any medicines or drugs; and
(d) where other goods may be sold by retail.’

[40] Business SA comments on these paragraphs noting that they give examples of what not to do and submits that it would be useful if the text included examples of the correct alternative in these situations. We agree. The Guidelines will be amended accordingly.

[41] Paragraph 7.4 of the November 2016 draft Guidelines states:

‘An expression used in an award that is defined in the National Employment Standards should be defined as having the same meaning as it has there.’

[42] Ai Group comments on this paragraph, noting that there are many expressions used in awards that overlap with expressions used in the NES, such as ‘continuous service’. Ai Group propose that paragraphs 7.4 of the draft Guidelines be deleted, for the following reasons:

‘These expressions may have different meanings in particular modern awards and attempting to align the definitions with the NES is likely to disturb the existing award entitlements. Also, the NES does not typically define terms; it uses various terms that are defined in other sections of the Fair Work Act, including ss 12, 16 and 18’. (emphasis added)

[43] Contrary to the submission advanced by Ai Group, it seems to us that there is utility in aligning the definition of expressions used in both awards and the NES. We note the observations of the NFF at the conference on 23 November 2016 in support of greater consistency between expressions used in the FW Act and those used in modern awards. 15 We also note that the submission put is somewhat speculative and no examples are given to illustrate the point made. We do not exclude the possibility that in a particular award it may be appropriate to define an expression in a way that differs from the definition of that expression in the NES. But there would need to be good reason for adopting such a course. To allow for such a possibility we will insert the word ‘generally’ after ‘should’, in paragraph 7.4.

[44] As to Ai Group’s subsidiary point, that the NES does not typically define terms but rather uses terms which are defined elsewhere in the FW Act, we acknowledge that this is the case but do not think it necessary to amend paragraph 7.4. It is clear enough that the paragraph is intended to refer to both expressions defined in the NES provisions themselves and expressions used in the NES, but defined elsewhere in the FW Act.

[45] Paragraphs 7.10 and 7.11 of the November 2016 draft Guidelines state:

‘7.10 Use the expression “has the meaning given by” to define a term by reference to an existing definition of that term in an Act or other instrument.

7.11 Use the expression “as defined by” to define a term by reference to an existing definition of a different term in an Act or other instrument (for example, employee means a national system employee as defined by section 13 of the Act).’

[46] The AMWU comments on these paragraphs and submits that definitions in external documents should be set out in full in the modern award itself to avoid the need to reference another document. In the alternative it submits that a hyperlink be provided in the electronic version of the modern award to the relevant part of any external document referenced in the modern award.

[47] We are not persuaded to adopt the approach proposed as it would likely necessitate frequent variations to modern awards – as the external documents are varied – and would unnecessarily ‘clutter’ an award with material that may detract from central provisions dealing with employee entitlements and obligations.

[48] As noted in the December 2014 Full Bench decision, at the conclusion of the Review the Commission intends to publish two documents in respect of each modern award – the legal instrument, being the modern award as reviewed, and an annotated version of each modern award:

‘The legal instrument would not contain summaries of NES entitlements or links to various legislation… The second document will be an annotated version of each award, published by the administrative arm of the Commission and will contain summaries of NES entitlements and links to various legislative provisions. Interested parties will be consulted as to the terms of annotated awards to be published by the Commission.’ 16

[49] The publication of an annotated version of each modern award is sufficient to address the issue raised by the AMWU.

[50] Paragraph 9.2 of the November 2016 draft Guidelines states:

‘9.2 If a provision is reasonably short and self-contained, reproducing it instead of merely cross-referring to it is helpful to the reader as the reader does not then have to access another document or go to another part of the award. However, if a provision is frequently referred to in an award, it would be disruptive to the flow of the text to reproduce it each time.’

[51] Business SA comments on this paragraph and submits that the paragraph be reworded to reflect the observations of the Full Bench in the December 2014 decision. As noted above, modern awards will not contain summaries of NES entitlements, links to other legislative provisions or summarise employer obligations under the FW Act (such as the obligation to provide pay slips to employees).

[52] Paragraph 9.2 of the draft Guidelines is directed at minimising cross-referencing by reproducing, rather than cross-referring to, reasonably short and self-contained provisions located within the award. For example, clause 10.1 of the revised exposure draft of the Pharmacy Award sets out the hours that constitute full-time employment rather than cross-referencing to the ordinary hours mentioned in clause 9. Contrary to the submission advanced by Business SA, paragraph 9.2 is not directed at the issue of the inclusion of summaries of NES entitlements or links to legislation. No amendment to paragraph 9.2 of the draft Guidelines is necessary.

[53] Paragraph 9.5 of the November 2016 draft Guidelines states:

‘In all other cases when referring to a provision, refer to the provision by the highest unit of reference (e.g. clause 19.3 rather than subclause 19.3).’

[54] The AMWU comments on this paragraph and submits that its purpose is unclear and that a different example be used to better illustrate the intended purpose. In particular, the AMWU submits:

‘There doesn’t seem to be a meaningful difference between ‘clause 19.3’ and ‘subclause 19.3’, except that they have been given different titles. One is designated a clause and one is designated a subclause. The highest unit would seem to be 19, rather than 19.3.

Paragraph 9.5 may be unclear in its intended purpose. Different examples should be used such as ‘clause 19 rather than subclause 19.3’ or ‘subclause 19.3 rather than paragraph 19.3(b).’ 17

[55] The AMWU appears to have misunderstood the intended purpose of paragraph 9.5. The ‘highest unit’ referred to is the clause, as opposed to a subclause or paragraph. It may assist to make this point clearer if the example is amended and we will do so. The example will now be: (e.g. clause 19.3(b) rather than paragraph 19.3(b) 18).

[56] The draft Guidelines will be amended to reflect the matters we have decided. Revised draft Guidelines will be published shortly and interested parties will be provided with a further opportunity to comment, before the Guidelines are finalised. Written comments should be sent to amod@fwc.gov.au by 4.00 pm on Friday 10 February 2016.

3. The Pharmacy Award

[57] The plain language expert has prepared a redraft of the Pharmacy Award. The initial plain language draft was user tested by individuals covered by the award and a report was published on the Commission’s website. A revised plain language exposure draft was published on 10 November 2016, followed by further submissions from interested parties and a hearing on 15 December 2016.

[58] In general, references in this decision to the revised exposure draft or clauses in the exposure draft are a reference to the plain language revised exposure draft published on the Commission’s website on 10 November 2016. References to the transcript are a reference to the transcript of the proceedings on 15 December 2016.

[59] It is convenient to deal first with some general issues associated with the revised exposure draft, before turning to our consideration of particular award terms.

3.1 General issues

(i) Inclusion of words explaining how tables operate

[60] Where tables have been included in the revised exposure draft, table numbers and column titles have been included. For example, clause 15 provides as follows:

15. Breaks

15.1 Clause 15 gives an employee an entitlement to meal breaks and rest breaks.

15.2 An employee who works the number of hours on any one day specified in an item of column 1 of Table 2—Entitlements to meal and rest breaks is entitled to a break or breaks as specified in column 2.

Table 2 – Entitlements to meal and rest break(s)

Column 1	Column 2
Hours worked	Breaks
At least 4 but not more than 5	One 10 minute paid rest break
More than 5 but less than 7.6	One 10 minute paid rest break One 30 to 60 minute unpaid meal break
7.6 or more	Two 10 minute paid rest breaks

[61] In a joint submission the interested parties (the ‘joint submission’) 19 submit that clauses 15.1 and 15.2 have complicated the current breaks provision in the modern award. In particular, the interested parties jointly submit that the inclusion of wording explaining the table in clause 15 unnecessarily complicates the clause.

[62] We disagree. The lead in clauses to the table make the award simpler and easier to understand. Explaining how the table works adds to certainty and clarity. Further, each table is identified by a table number, which facilitates cross-referencing to it. We do not propose to make the change suggested in the joint submission.

(ii) Use of conjunctions and ‘lead in’ words in the cases of list

[63] As mentioned earlier, paragraph 5.4 of the updated draft Guidelines will suggest that consideration be given to the use of the expression ‘all of the following’, to indicate that a series of 3 or more paragraphs or subparagraphs are cumulative. The previous practice has been to use the conjunctive ‘and’ after the penultimate paragraph or subparagraph to show that the listed paragraphs or subparagraphs were cumulative.

[64] The revised exposure draft adopts the suggestion in paragraph 5.4 of the draft Guidelines. For example, clause 18.1 states:

18.1 Meal allowances

(a) Clause 18.1 applies to an employee to whom each of the following applies:

(i) the employee has worked 6 or more ordinary hours on any day;

(ii) the employee is required to work on that day overtime, or more than 1.5 hours beyond the time at which the employee ordinarily finishes work for the day, unless the hours worked were agreed under clause 10—Part-time employment;

(iii) the employee was not advised of the requirement mentioned in subparagraph (ii) on or before the previous day;

(iv) the employee cannot reasonably return home for a meal within the period of the meal break.

[65] The expression ‘each of the following’ has also been used in clauses 4.1, 10.4 and 18.6 of the revised exposure draft. As mentioned earlier, we favour the use of the alternate expression ‘all of the following’.

[66] The parties generally favour the use of conjunctions or disjunctions (that is, ‘and’ or ‘or’ respectively) should be used as well as ‘lead in’ words such as ‘all of the following’ or ‘each of the following’.

[67] We agree, and note the following observation from the User testing report:

‘One aspect of the plain language draft that participants struggled with was the use of “and” and “or” as the only signpost for whether a long list of paragraphs or subparagraphs were cumulative (all needed to be checked off), or exclusive (only one option from the list need apply)…Some suggested improvements included bolding these conjunctions or presenting them on a separate line so that they were more obvious. A more practical solution could be to amend the lead-in text to make it easier to distinguish that a list is cumulative or exclusive rather than relying on the reader to notice the conjunctions and appreciate their operation.’ 20

[68] It is not strictly necessary to use both the ‘lead in’ words ‘all of the following’ and the conjunctions in order to give effect to the intended construction of a clause, such as clause 18.1. But, given the views expressed by the parties and the above observation from the User testing report, we propose to retain the ‘lead in’ words and insert a conjunctive at the end of each of the subparagraphs.

18.1 Meal allowances

(a) Clause 18.1 applies to an employee to whom all of the following apply:

(i) the employee has worked 6 or more ordinary hours on any day; and

(ii) the employee is required to work on that day overtime, or more than 1.5 hours beyond the time at which the employee ordinarily finishes work for the day, unless the hours worked were agreed under clause 10—Part-time employment; and

(iii) the employee was not advised of the requirement mentioned in subparagraph (ii) on or before the previous day; and

(iv) the employee cannot reasonably return home for a meal within the period of the meal break.

(b) The employer must:

(i) pay the employee a meal allowance of $17.85; or

(ii) supply the employee with an adequate meal.

(c) If the number of hours worked under a requirement mentioned in clause 18.1(a)(ii) exceeds 4, the employer must pay the employee a further meal allowance of $15.99.

[69] As mentioned earlier, the Guidelines will be amended to reflect the revised practice. We will also make the required changes to clauses 4.1, 10.4 and 18.6 of the revised exposure draft.

[70] We now turn to the submissions directed at specific terms in the revised exposure draft.

3.2 Specific award clauses

Clause 2 – Definitions

[71] The insertion of the expression ‘unless the contrary intention appears’ in the prefatory words to the definitions in clause 2, is no longer pressed by Business SA. 21

[72] Clause 2 of the revised exposure draft includes the following definitions:

on-hire employer means a person who carries on a business of employing individuals for the purpose of on-hiring them to an end-user employer.

on-hire employee means an employee of an on-hire employer who is on-hired to an employer covered by the award.

[73] Clause 3.1 of the current modern award does not contain a definition of ‘on-hire employer’ or ‘on-hire employee’, rather it defines ‘on-hire’, as follows:

on-hire means the on-hire of an employee by their employer to a client, where such an employee works under the general guidance and instructions of the client or a representative of the client.

[74] The definition of ‘on-hire’ is relevant to the interpretation of the coverage clause (clause 4.5) of the current award (clause 4.3 of the revised exposure draft).

[75] The joint submission of the interested parties proposes the variation of the revised exposure draft to include the existing definition of ‘on-hire’.

[76] Further to the discussion recorded at paragraphs [29] to [65] of the transcript, it is our provisional view that the revised exposure draft be amended to delete the definitions of ‘on-hire employer’ and ‘on-hire employee’ and to insert the definition of ‘on-hire’ from clause 3.1 of the current award.

[77] The proposed change will achieve the objective of ensuring that the legal effect has not changed. However, we would observe that it is difficult to determine from the terms of the current award whether the person to whom labour is supplied needs to be an employer covered by the Pharmacy Award by virtue of employing other employees in the community pharmacy industry or acquires that status by being supplied with the labour. The definition of on-hire does not provide any assistance in that regard. We invite submissions as to whether the intention of the current provision is that the person to whom labour is supplied is also to be an employer covered by the award, or if some other outcome is intended.

Clause 4 – Coverage

[78] The issues in contention relate to clause 4.1. Clauses 4.2, 4.3 and 4.4 are not in dispute. Clause 4.1 states:

4.1 In this industry award community pharmacy means a business to which each of the following applies:

(a) the business is established wholly or partly for compounding or dispensing prescriptions or selling medicines or drugs by retail to the general public from the premises on which the business is conducted, whether or not other goods are so sold from those premises;

(b) if required to be registered under legislation for the regulation of pharmacies in force in the place in which the premises on which the business is conducted are located, the business is so registered;

(c) the business is not owned by a hospital or other public institution, or operated by government, unless medicines or drugs are sold by retail to the general public from the premises on which the business is conducted.

[79] The current award defines ‘community pharmacy’ as follows:

community pharmacy means any business conducted by the employer in premises:
(a) that are registered under the relevant State or Territory legislation for the regulation of pharmacies; or
(b) are located in a State or Territory where no legislation operates to provide for the registration of pharmacies;
and

[80] The current definition is ambiguous. It is not clear whether the conditions set out in the 2 dot points in the definition apply to both paragraphs (a) and (b), or only to paragraph (b).

[81] Clause 4.1(b) of the revised exposure draft expresses the idea in the 2 dot points in the current definition, in plain language. There is no dispute about clause 4.1(b).

[82] Clause 4.1(a) is intended to capture the meaning of paragraphs (c) and (d) of the current definition. The Pharmacy Guild submits that clause 4.1(a) alters the legal effect of the current definition by introducing a requirement that medicines and drugs are sold by retail. This issue was the subject of some debate during the course of the proceedings on 15 December 2016. 22 It was pointed out that the words ‘by retail’ attach to ‘selling medicines or drugs’, not to ‘compounding or dispensing prescriptions’. On that basis the Pharmacy Guild indicated that they would not press their objection.23 But in correspondence dated 22 December 2016 the Pharmacy Guild renewed its objection to clause 4.1(a).

[83] The reference to ‘by retail’ in relation to the selling of medicines or drugs was inserted because the current award refers to sale ‘by retail’ in relation to goods other than medicines or drugs and simply uses ‘vending’ in relation to medicines or drugs. To leave ‘by retail’ out in relation to medicines or drugs and include it in relation to other goods may leave open the argument that the definition only covers wholesale selling of medicines or drugs. The issue could be addressed by omitting ‘by retail’ in both cases.

[84] We propose to delete the words ‘by retail’ in clause 4.1(a) and will make that amendment in the next iteration of the exposure draft.

[85] Clause 4.1(c) was also the subject of debate during the proceedings on 15 December 2016. 24 The issue in contention is, in essence, the dividing line between the coverage of this award and that of the Health Professionals and Support Services Award 2010. It seems to us that during the course of the proceedings a consensus emerged in support of the proposition that if a pharmacy is owned by a hospital, or other public institution, or operated by government, then it was not covered by the Pharmacy Award. To give effect to that proposition it is our provisional view that clause 4.1(c) be varied to delete all of the words after ‘government’, as follows:

‘(c) the business is not owned by a hospital or other public institution, or operated by government.’

[86] We will also add the conjunctive ‘and’ at the end of clauses 4.1(a) and 4.1(b), for the reasons set out earlier.

[87] Contrary to the views expressed by the parties, we have decided not to reverse the order of clauses 4.1 and 4.2. The definition of ‘community pharmacy’ was included in clause 4 of the revised exposure draft because of its critical importance in the context of the coverage clause. It was put at clause 4.1 because it is important for anyone reading clause 4 to know from the start what a community pharmacy is. To reverse the order of clauses 4.1 and 4.2 results in the definition interrupting the series of subclauses setting out what the award covers.

[88] The changes set out above will be included in the next iteration of the exposure draft and interested parties will be invited to comment. The revised coverage clause 4.1 will be in the following terms:

‘In this industry award, “community pharmacy” means a business to which each of the following applies:

(a) the business is established wholly or partly for compounding or dispensing prescriptions for, or selling medicines or drugs to, the general public from the premises on which the business is conducted, whether or not other goods are so sold from those premises; and

(b) if required to be registered under legislation for the regulation of pharmacies in force in the place in which the premises on which the business is conducted are located, the business is so registered; and
(c) the business is not owned by a hospital or other public institution, or operated by government.’

Clause 8 – Types of employment and classifications

[89] Clause 8.3 of the revised exposure draft states:

8.3 Moving between types of employment

(a) A full-time or casual employee can only become a part-time employee with the employee’s written consent.

(b) Moving to part-time employment does not affect the continuity of any leave entitlements.

(c) A full-time employee:

(i) may request to become a part-time employee; and

(ii) may return to full-time employment at a date agreed in writing with the employer.

NOTE: See section 65 of the Act for information about requests for flexible working arrangements.

[90] The ‘note’ at the end of clause 8.3 of the revised exposure draft will be deleted, as proposed in the parties’ joint submission.

Clause 10 – Part-time employment

[91] Clause 10 of the revised exposure draft provides as follows:

10. Part-time employment

10.1 An employee who is engaged to work for fewer ordinary hours than mentioned in clause 9—Full-time employment and whose hours of work are reasonably predictable is a part-time employee.

10.2 This award applies to a part-time employee in the same way that it applies to a full-time employee except as otherwise provided by this award.

10.3 A part-time employee is only entitled to payments in respect of annual leave, personal/carer’s leave, compassionate leave or public holidays on a proportionate basis.

10.4 At the time of engaging a part-time employee, the employer must agree in writing with the employee to each of the following:

(a) the number of hours to be worked each day;

(b) the days of the week on which the employee will work;

(c) the times at which the employee will start and finish work each day;

(d) when meal breaks may be taken and their duration.

10.5 Any agreement under clause 10.4 must state that any variation agreed by the employer and the employee to any of the matters mentioned in clause 10.4(a) to (d) must be in writing.

10.6 An agreement under clause 10.4 must also state each of the following:

(a) the minimum period for which the employee may be rostered to work on any shift is 3 consecutive hours;

(b) for each ordinary hour worked, the employee must be paid in accordance with clause 16—Minimum wages and in accordance with clause 21—Penalty rates for ordinary hours worked during periods specified in Table 5—Penalty rates;

(c) for each hour worked in excess of the number of ordinary hours agreed under clause 10.4 and 10.10, the employee must be paid at the overtime rate in accordance with clause 20.2—Application of overtime for part-time employees.

10.7 The employer must keep a copy of any agreement under clause 10.4 or variation of it and give another copy to the employee.

10.8 The roster of a part-time employee, but not the number of hours agreed under clause 10.4, may be changed:

(a) by the employer giving the employee 7 days, or in an emergency 48 hours, written notice of the change; or

(b) at any time by the employer and employee by mutual agreement.

10.9 However, the roster of a part-time employee must not be changed:

(a) from pay period to pay period; or

(b) so as to avoid any award entitlement.

10.10 A part-time employee who has worked the number of hours agreed under clause 10.4 may agree to work additional hours that are not reasonably predictable. The additional hours may be worked on the terms applicable to a casual employee.

10.11 However, the total number of hours agreed under clauses 10.4 and 10.10 must not exceed the maximum daily hours specified in clause 13.3 or full-time employment hours specified in 9—Full-time employment.

NOTE: See clause 20—Overtime for rates applicable when agreed additional hours exceed the maximum daily hours or full-time employment hours.

 

 

 

[92] A number of submissions were made in relation to this clause. The specific issues raised are set out below.

Clause 10.1

[93] The interested parties jointly submit that the cross referencing in clause 10.1 is unnecessary and does not make the provision easier to understand. We agree. Clause 10.1 will be varied as follows (changes are tracked):

10.1 An employee who is engaged to work for fewer ordinary hours than mentioned in clause 9—Full-time employment 38 per week (or 76 over 2 consecutive weeks) and whose hours of work are reasonably predictable is a part-time employee.

Clauses 10.2 and 10.3

[94] The joint submission expresses a preference for the wording of clause 12.9 of the current modern award over clause 10.2 of the exposure draft. The parties submit that the re-draft is unclear and confusing and that the award does not apply to part-time employees in the same way as full-time employees generally. The parties also jointly submit that clause 10.3 should be removed because it restricts the entitlements of part-time employees and may be contrary to the NES.

[95] Clause 12.9 of the modern award currently states:

12.9 Award entitlements

A part-time employee will be entitled to payments in respect of annual leave, public holidays, personal/carer’s leave and compassionate leave arising under the NES, or this award, on a proportionate basis. Subject to the provisions contained in this clause all other provisions of the award relevant to full-time employees will apply to part-time employees.

[96] Clauses 10.2 and 10.3 of the revised exposure draft separated out the two concepts currently covered by clause 12.9 of the modern award. Together, clauses 10.2 and 10.3 of the exposure draft are to the same effect as clause 12.9 and, in our view, separating these two concepts adds clarity.

[97] As to the second point advanced in the joint submission, we will omit the word ‘only’ from clause 10.3 to remove any potential inconsistency with the NES.

Clauses 10.4, 10.5 and 10.6

[98] The parties jointly submit that clause 10.4 and 10.6 should be combined to provide for all the matters which are required to be included in the relevant agreement. It is said that separating the items that are required to be included in a part-time employment agreement could lead to employers inadvertently failing to include the required items in an agreement. The proposed combined clause is as follows:

10.4 At the time of engaging a part-time employee, the employer must agree in writing with the employee to each of the following:

(a) the number of hours to be worked each day;

(b) the days of the week on which the employee will work;

(c) the times at which the employee will start and finish work each day;

(d) when meal breaks may be taken and their duration.

(e) the minimum period for which the employee may be rostered to work on any shift is 3 consecutive hours;

(f) for each ordinary hour worked, the employee must be paid in accordance with clause 16—Minimum wages and in accordance with clause 21—Penalty rates for ordinary hours worked during periods specified in Table 5—Penalty rates;

(g) for each hour worked in excess of the number of ordinary hours agreed under this clause and clause 10.10, the employee must be paid at the overtime rate in accordance with clause 20.2—Application of overtime for part-time employees.

 

 [99] We disagree. The intention of the plain language redraft is to clearly set out which items must be agreed upon and which items must be included in the agreement. Clause 10.4 deals with what must be agreed while clauses 10.5 and 10.6 state matters that must be included in the agreement but do not relate to variable matters that must be agreed. It seems to us that conflating these two issues would lead to confusion.

[100] The unions submit that clause 10.5 does not make it clear that an agreement to vary a part-time employment agreement must be made before the variation occurs and nor does clause 10.5 provide that variations may be permanent or temporary.

[101] The comparative current provision states:

12.3 Any agreement to vary the regular pattern of work will be made in writing before the variation occurs. Any agreement to vary the agreed hours may also be either a permanent agreed variation to the pattern of work or may be a temporary agreed variation, eg a single shift or roster period.

[102] Clause 10.5 is intended to make it clear that a variation to any of the matters mentioned in clause 10.4(a) to (d) must be in writing. If a variation must be in writing it would seem to follow that until a variation is executed in writing, there is no variation. Accordingly, we are not presently persuaded that it is necessary to state that an agreement to vary must be made in writing before the variation occurs.

[103] It was submitted that the distinction between temporary and permanent variations was necessary in order to distinguish between variations to the part-time employment agreement and agreements to work ‘additional hours’ under clause 10.10. 25 While it seems to us implicit that a variation may have an ongoing effect (until varied) or may only operate for a defined period (such as, for the next 4 weeks) or in respect of a single shift, we accept that clause 10.5 should be amended to clarify that an agreement to vary the number of hours to be worked may provide for the variation to be either temporary or permanent.

[104] We also accept that there is a need for greater clarity around the distinctions between the circumstances in which part-time employees work in excess of the number of agreed hours, that is the number of ‘ordinary hours’ which a part-time employee is engaged to work and:

(i) when a part-time employee is entitled to be paid at overtime rates; and

(ii) the ‘additional hours’ that may be worked under clause 10.10 and for which the employee is paid at casual rates.

[105] Some amendments will be made in the next iteration of the exposure draft to address these issues.

[106] The Pharmacy Guild and the unions also submit that clause 10.6 of the revised exposure draft has changed the legal effect of the current clause. In particular, it is contended that the current obligation in clause 12.5 of the modern award has not been reflected in the revised exposure draft.

[107] Clause 12.5 of the current award provides:

‘An employer is required to roster a part-time employee for a minimum of three consecutive hours on any shift.’

[108] The revised exposure draft seeks to deal with this issue in clause 10.6(a) which provides:

‘An agreement under clause 10.4 must also state each of the following:

(a) the minimum period for which the employee may be rostered to work on any shift is 3 consecutive hours; …’

[109] We agree with the views expressed by the Pharmacy Guild and the unions. The obligation to include the existing ‘minimum three consecutive hours requirement’ in a part-time employment agreement may give rise to some enforcement issues in the event that a part-time employee is required to work a shift of less than three consecutive hours. It is preferable that the existing clause 12.5 be retained as a discrete award obligation rather than being a required term in a part-time employment agreement. A discrete award obligation will be included as a separate subclause after clause 10.6, in the following terms: ‘The employer must roster a part-time employee on any shift for a minimum of 3 consecutive hours’. We will make the necessary amendment to the next iteration of the revised exposure draft.

Clause 10.6(b)

[110] The Pharmacy Guild submits that clause 10.6(b) is a new obligation and should be removed.

[111] Clause 10.6(b) of the revised exposure draft states:

10.6 An agreement under clause 10.4 must also state each of the following:

…

(b) for each ordinary hour worked, the employee must be paid in accordance with clause 16—Minimum wages and in accordance with clause 21—Penalty rates for ordinary hours worked during periods specified in Table 5—Penalty rates.

[112] While the substantive obligations referred to in clause 10.6(b) reflect those which currently exist in the modern award we accept that there is no current obligation to refer to such matters in the agreement to be entered into between the employer and the part-time employee. Clause 10.6(b) will be deleted from the next iteration of the exposure draft.

Clause 10.8

[113] The Pharmacy Guild submits that clause 10.8 of the exposure draft alters the legal effect of the current modern award term by stipulating that the number of hours agreed in accordance with clause 10.4 cannot be varied and that the clause needs to be reworded to preserve the capacity for agreement to alter the number of hours worked.

[114] We agree and propose that the clause be split into two subclauses in the following terms:

10.8 The roster of a part-time employee, but not the number of hours agreed under clause 10.4, may be changed by the employer giving the employee 7 days, or in an emergency 48 hours, written notice of the change.; or

(b) at any time by the employer and employee by mutual agreement.

10.9 The roster of a part-time employee, including the number of hours agreed under clause 10.4, may be changed at any time by the employer and employee by mutual agreement.

[115] We deal later with the tension between clause 10.5 and clause 10.8

[116] In summary, we propose to make 7 changes to clause 10 of the revised exposure draft.

[117] First, clause 10.1 will be amended to provide as follows:

‘An employee who is engaged to work for fewer ordinary hours than 38 per week (or 76 over 2 consecutive weeks) and whose hours of work are reasonably predictable is a part-time employee.

[118] Second, delete the word ‘only’ from clause 10.3.

[119] Third, clause 10.5 will be amended to make it clear that any agreement varying any of the matters specified in subclause 10.4 may be temporary or permanent.

[120] Fourth, delete clause 10.6(a) and insert, as a separate subclause after clause 10.6, the following:

‘The employer must roster a part-time employee on any shift for a minimum of 3 consecutive hours.’

[121] Fifth, the interaction between clauses 10.6(c), 10.10 and 20.2 will be clarified.

[122] Sixth, clause 10.6(b) will be deleted.

[123] Seventh, clause 10.8 will be split into two subclauses, as set out at [113] above.

[124] Further, it seems to us that there is a tension between clause 10.5 (which provides that a variation of the matters in clause 10.4(a) to (d) must be agreed, in writing) and clause 10.8 (which allows an employer to unilaterally change the matters mentioned in clause 10.4(b) to (d) upon the giving of the prescribed notice). Interested parties are invited to make submissions in respect of this issue.

[125] Interested parties are also invited to comment on whether the agreement referred to in clause 10.10 should be in writing.

[126] Given the range and complexity of the issues raised in respect of part-time employment we have not addressed all of the issues raised, at this stage. We expect that the revised clause will be the subject of further submissions and a hearing before it is finalised.

Clause 11 – Casual employment

[127] Clause 11 of the revised exposure draft provides as follows:

11. Casual employment

11.1 An employee who is not covered by clause 9—Full-time employment or clause 10—Part-time employment may be engaged and paid as a casual employee.

11.2 A casual employee does not have an entitlement to reasonably predictable hours of work.

11.3 The minimum number of hours for which a casual employee may be rostered to work on any day is 3 consecutive hours.

11.4 An employer must pay a casual employee for each ordinary hour worked a loading of 25% on top of the minimum hourly rate otherwise applicable under clause 16—Minimum wages.

NOTE: Column 2 of Table 3—Minimum wages shows the minimum hourly wage to which the casual loading applies. If an employee is classified as a Pharmacy Assistant, and aged under 21 years see also clause 16.2—Junior wages (Pharmacy Assistants only).

11.5 An employer must pay a casual employee for each ordinary hour worked during periods specified in clause 21—Penalty rates the casual penalty rate (inclusive of casual loading) specified in column 3 of Table 5—Penalty rates.

NOTE: The 25% loading for casual employees applies to ordinary hours worked. The casual loading is not payable on overtime worked as specified in clause 20—Overtime.

11.6 The pay period of a casual employee is as determined under clause 16.4—Pay period.

 

 

[128] At this stage we only propose to make three changes to clause 11. First, clause 11 will be varied to delete the word ‘may’ and insert ‘must’. We note that there appears to be a consensus that a person who does not meet the defined characteristics of a full-time or a part-time employee must be engaged as a casual and paid the casual loading.

[129] Second, clause 11.3 will be varied to add the words ‘consecutive hours’ at the end of the clause.

[130] Third, further to the discussion recorded at paragraphs [344] to [410] of the transcript we express the provisional view that clause 11.2 be deleted and a casual conversion clause be inserted. The form of the casual conversion clause will be determined after the decision of the Part-time and Casual Employment Full Bench.

[131] We propose to defer our consideration of the range of other issues raised by the parties until after the determination of the substantive issues in respect of casual employment.

Clause 12 – Classification

[132] Clause 12 of the revised exposure draft states:

12. Classification

12.1 An employer must classify an employee covered by this award in accordance with Schedule A—Classification Definitions.

12.2 The classification must be based on the skill level that the employee is required to exercise in order to carry out the principal functions of the employment.

12.3 Employers must notify employees in writing of their classification and of any change to it.

 

[133] The parties’ joint submission is that clause 12.2 should include the term ‘the classification by the employer’.

[134] While it is tolerably clear from clause 12.1 that the classification is done by the employer, we note that the parties’ joint submission is consistent with the clause 16.2 of the modern award and the change proposed will add some additional clarity to the provision. We will amend clause 12.2 of the revised exposure draft, as follows (with changes tracked):

‘12.2 The classification by the employer must be based on the skill level that the employee is required to exercise in order to carry out the principal functions of the employment.’

Clause 13 – Hours of work

[135] Clause 13 of the revised exposure draft provides as follows:

13. Ordinary hours of work

13.1 Ordinary hours may be worked on any day between 7.00 am and midnight.

13.2 Ordinary hours of work are continuous, except for rest breaks and meal breaks as specified in clause 15—Breaks.

13.3 The maximum number of ordinary hours that can be worked on any day is 12.

13.4 The maximum number of ordinary hours of work for a full-time employee per week (or as averaged over 2 consecutive weeks) are as set out in clause 9—Full-time employment.

13.5 The maximum number of ordinary hours of work per week for a part-time employee are as agreed under clause 10—Part-time employment.

 

 

[136] The parties’ jointly submit that the cross reference in clause 13.4 ‘is unnecessary and appears contrary to the plain language drafting principles…the cross referencing requires the user to locate and read another clause in the award in order to understand the meaning and intent of the clause’.

[137] We agree with the general proposition that cross referencing should be kept to a minimum. As stated in the draft Guidelines (at paragraphs 9.1 to 9.2):

‘Minimise cross-referencing within an award and rely on the award being read as a whole. A ‘Note’ could be included to point the reader to the relevant provision…

If a provision is reasonably short and self-contained, reproducing it instead of merely cross-referencing to it is helpful to the reader as the reader does not then have to access another document or go to another part of the award. However, if a provision is frequently referred to in an award, it would be disruptive to the flow of the text to reproduce it each time.’

 

[138] Further, the User testing report noted (at p.9):

‘Cross references remain a challenge in plain language drafting the award for improved accessibility…The need to search for another piece of information in the instrument in order to understand how the provision of interest operated was considered burdensome by most.’

[139] Clause 13.4 cross references clause 9, which states:

‘An employee who is engaged to work 38 ordinary hours per week (or 76 ordinary hours over 2 consecutive weeks) is a full-time employee.’

[140] The parties’ jointly submit that the cross reference be removed and the following words included in clause 13.4:

‘engaged to work less than 38 hours per week.’

[141] We agree that the cross reference to clause 9 should be deleted, but the words proposed by the parties are inconsistent with the definition of a full-time employee in clause 9. A full-time employee is not engaged to work less than 38 hours per week.

[142] Our provisional view is that clause 13.4 be amended, as follows (changes tracked):

‘The maximum number of ordinary hours of work per week for a full-time employee per week are 38 (or 76 ordinary hours over 2 consecutive weeks) as set out in clause 9—Full-time employment.’

[143] The Pharmacy Guild submits that clause 13.5 fails to account for the ability of a part-time employee to agree to work ‘additional hours’ under clause 10.10.

[144] Clause 13.5 provides that the maximum number of ordinary hours for a part-time employee are as agreed ‘under clause 10’. As clause 10.10 forms part of clause 10 we do not understand the point being advanced by the Pharmacy Guild. At this stage we do not propose to vary clause 13.5. This issue may be the subject of further submissions in accordance with the timetable set out later in this decision.

Clause 14 – Rostering arrangements—full-time and part-time employees

[145] Clause 14.1 of the revised exposure draft provides as follows:

14.1 The following rostering arrangements apply to full-time and part-time employees:

(a) employees must be rostered to work ordinary hours in such a way that they have:

(i) 2 consecutive days off each week; or

(ii) 3 consecutive days off over 2 consecutive weeks;

(b) employees must not be rostered to work ordinary hours on more than 5 days in a week;

(c) despite paragraph (b), employees may be rostered to work ordinary hours on 6 days one week if they are rostered to work ordinary hours on no more than 4 days the following week;

(d) employees must not be rostered to work (whether ordinary hours or overtime) on more than 6 consecutive days;

(e) employees rostered to work (whether ordinary hours or overtime) on up to 3 Sundays in a 4 week cycle must be rostered to have 3 consecutive days off every 4 weeks, including a Saturday and Sunday.

[146] The issue in contention in respect of this clause is clause 14.1(e).

[147] Clause 14.1(e) is in the terms agreed at the conference held on 17 December 2015. 26 The Pharmacy Guild submits27 that ‘the parties agreed to the proposal based upon the provisions still including the terms ‘regularly works Sundays’ to ensure the clause is not applied to a one off arrangement’. The Pharmacy Guild propose that clause 14.1(e) be replaced by the following:

‘(e) employees rostered to ‘regularly work’ Sundays (whether ordinary hours or overtime) on up to three Sundays in a four week cycle must be rostered to have three consecutive days off every four weeks, including a Saturday and Sunday.’

[148] The union parties 28 agree that clause 14.1(e) is unclear and requires amendment. The union parties’ submit that all interested parties agree with the following proposition:

‘…that over a four week roster cycle an employee would need to be rostered to work at least three Sundays for the obligation to provide three consecutive days off including a Saturday and Sunday.’

[149] The union parties’ propose the following wording to address the ambiguity in clause 14.1(e):

‘An employee who works three Sundays in any four week cycle must have three consecutive days off every four weeks which must include Saturday and Sunday’.

[150] Clause 25.4(a)(iv) of the modern award provides as follows:

‘An employee who regularly works Sundays will be rostered so as to have three consecutive days off each four weeks and the consecutive days off will include Saturday and Sunday.’ (emphasis added)

[151] The expression ‘An employee who regularly works Sundays’ is imprecise. Clause 14.1(e) addresses this lack of precision by defining an employee who ‘regularly works Sundays’ as an employee ‘rostered to work (whether ordinary hours or overtime) on up to 3 Sundays in a four week cycle’.

[152] The proposal advanced by the union parties is in the same form as clause 14.1(e), but rather than using the expression ‘employees rostered to work’, they propose ‘An employee who works’. The effect of the union parties’ proposal seems to be that in order to be entitled to the benefit of the provision an employee would have to actually work three Sundays in any four week cycle rather than simply being rostered to work on three Sundays in any four week cycle. The need for such a limitation is unclear and it is inconsistent with the language used in the rest of clause 14.1. Clauses 14.1(a), (b), (c) and (d) all use the expression ‘rostered to work’.

[153] The proposal advanced by the Pharmacy Guild reintroduces the lack of precision evident in the current clause 25.4(a)(iv). The Pharmacy Guild propose that an employee would be entitled to the benefit of clause 14.1(e) if the employee is:

‘…rostered to “regularly work” Sundays (whether ordinary hours or overtime) on up to three Sundays in a four week cycle.’

The proposition advanced begs the question – what is meant by rostered to ‘regularly work’ Sundays? Over what period of time would an employee have to be rostered on up to three Sundays in a four week cycle? For example, would an employee have to be rostered on up to three Sundays over six consecutive four week cycles before they get the benefit of the clause?

[154] We would also observe that the application of clause 14.1(e) to ‘employees rostered to work…on up to 3 Sundays in a 4 week cycle’, has the effect that an employee rostered to work only 1 or 2 Sundays in a 4 week cycle is entitled to have 3 consecutive days off in that cycle including a Saturday and Sunday. The submission from the union parties (see [145] to [146] above) seems to require that the rostering must cover 3 Sundays in a 4 week cycle. Accordingly, our provisional view is that the words ‘up to’ be omitted from clause 14.1(e).

[155] Further, as presently drafted clause 14.1(e) may be interpreted such that a qualifying employee (that is an employee rostered to work on up to three Sundays in a four week period) is entitled to three consecutive days off, including a Saturday and Sunday, on an ongoing basis – irrespective of whether they continue to be rostered to work on up to three Sundays in a four week period. The ambiguity arises from the use of the word ‘every’:

‘… (a qualifying employee) must be rostered to have three consecutive days off every four weeks, including a Saturday and Sunday.’

[156] Our provisional view is that clause 14.1(e) be amended to delete ‘every four weeks’ and insert ‘in that four week cycle’. A plain language redraft of clause 14.1(e) will be published as part of the next version of the exposure draft.

[157] Other than the amendments set out above, we do not propose to amend clause 14.1(e) in the manner proposed by either the union parties or the Pharmacy Guild. It seems to us that to be entitled to the benefit of clause 14.1(e) (that is, to have 3 consecutive days off in a 4 week cycle, including a Saturday and Sunday), it is sufficient that an employee be rostered to work ‘on 3 Sundays in a 4 week cycle’.

Clause 15 – Breaks

[158] Clause 15 of the revised exposure draft is set out at paragraph [60].

[159] The parties jointly submit that the redrafted clause 15.2 introduces a restriction as to the timing of breaks which was not previously in the award. Specifically clause 28.3 of the modern award currently provides:

28.3 All employees working 7.6 or more hours on any day will be entitled to an unpaid meal break of not less than 30 minutes and no greater than one hour duration plus two 10 minute paid rest pauses.

Provided that:

(a) the meal breaks are to be taken after at least 2.5 hours and not later than five hours work;

(b) the rest pauses are not to be taken in the first hour of work or in the first hour after the meal break.

[160] We agree with the point made. The proviso to clause 28.3 (expressed in clause 28.3(a) and (b)) only applies to shifts of 7.6 hours or more. Column 2 of the table in clause 15.2 of the revised exposure draft will be amended, as shown below (with changes tracked):

Table 2—Entitlements to meal and rest break(s)

Column 1 Hours worked per day	Column 2 Breaks
At least 4 but not more than 5	One 10 minute paid rest break
More than 5 but less than 7.6	One 10 minute paid rest break One 30 to 60 minute unpaid meal break
7.6 or more	Two 10 minute paid rest breaks (not to be taken in the first hour of work or in the first hour of resuming work after a meal break) One 30 to 60 minute unpaid meal break (to be taken within the first 5 hours of work but not during the first 2.5 hours)

Clause 16 – Minimum Wages

[161] Clause 16.1 states:

16.1 An employer must pay an employee the minimum hourly wage specified in column 2 (or for a full-time employee the minimum weekly wage specified in column 3) in accordance with the employee classification specified in column 1 of Table 3—Minimum wages.

NOTE: Provisions for calculating wages for an employee who is classified as a pharmacy assistant and aged under 21 years is at clause 16.2—Junior wages (Pharmacy Assistants only).

Table 3—Minimum wages

Column 1 Employee classification	Column 2 Minimum hourly wage	Column 3 Minimum weekly wage
pharmacy assistant
level 1	$19.44	$738.80
level 2	$19.91	$756.40
level 3	$20.61	$783.30
level 4	$21.46	$815.40
pharmacy student
1st year of course	$19.44	$738.80
2nd year of course	$19.91	$756.40
3rd year of course	$20.61	$783.30
4th year of course	$21.46	$815.40
pharmacy intern
1st half of training	$21.74	$826.20
2nd half of training	$22.48	$854.40
pharmacist	$25.44	$966.60
experienced pharmacist	$27.86	$1,058.60
pharmacist in charge	$28.51	$1,083.40
pharmacist manager	$31.77	$1,207.40

NOTE: Schedule B—Summary of hourly rates of pay contains a summary of hourly rates of pay, including casual wages, overtime and penalty rates. Provisions for calculating wages for casual employees are at clause 11.4. Overtime rates are specified in clause 20 and penalty rates are specified at clause 21.

[162] The parties jointly submit that clause 16.1 of the revised exposure draft be replaced with the wording of the earlier version of the exposure draft (published 25 September 2015) because it was easier to understand. Clause 10.1 of the 25 September 2015 exposure draft dealt with minimum wages, as follows 29:

10.1 Adult employees

(a) An employer must pay adult employees the following minimum wages for ordinary hours worked by the employee:

Employee classification	Minimum weekly rate $	Minimum hourly rate $	Casual hourly rate $
Pharmacy Assistants
Level 1	721.50	18.99	23.74
Level 2	738.70	19.44	24.30
Level 3	764.90	20.13	25.16
Level 4	796.30	20.96	26.20
Students
1st year of course	721.50	18.99	23.74
2nd year of course	738.70	19.44	24.30
3rd year of course	764.90	20.13	25.16
4th year of course	796.30	20.96	26.20
Pharmacy Interns
First half of training	806.80	21.23	26.54
Second half of training	834.40	21.96	27.45
Pharmacist	943.90	24.84	31.05
Experienced Pharmacist	1,033.80	27.21	34.01
Pharmacist in Charge	1,058.00	27.84	34.80
Pharmacist Manager	1,179.10	31.03	38.79

(b) A summary of hourly rates of pay including overtime and penalties is provided in Schedule B of this Award.

(c) Each year of a pharmacy student’s course commences on the first day of the relevant academic term. A pharmacy student’s progression through the pay rate is line with the student’s progression through the course. If the pharmacy student completes subjects faster than the usual course progression for that year of study, the student will progress to the next pay rate even if they have not been on the previous pay rate for a year. A pharmacy student will not move to the next pay rate if they have not completed and passed all of the subjects required in the usual course progression for that year of study, even if they remain on the same pay rate for more than one year. Students undertaking a Master of Pharmacy will commence at the 3rd year pay rate.

[163] There appear to be three main difference between the two versions:

(i) The lead in words that appear before the table in clause 16.1 of the revised exposure draft do not appear in the parties’ preferred version.
(ii) The parties’ preferred clause refers to ‘Adult employees’, whereas clause 16.1 of the revised exposure draft simply refers to ‘employees’.
(iii) In the parties’ preferred clause the minimum weekly wage column appears first, followed by the minimum hourly rate column.

[164] As to issue (i), the lead-in words in clause 16.1 of the revised exposure draft explain how the table works and add to the clarity of the clause. We do not propose to change this aspect of the clause.

[165] As to issue (ii), the use of the descriptor ‘adult’ was not included in clause 16.1 of the revised exposure draft because it is likely to confuse the reader – the ordinary use of the word adult refers to a person over 18 years of age, but in this award junior rates apply to persons aged 20 years and younger. This point was made in the feedback from employees and employers set out in the User testing report:

‘The term ‘adult’ was commonly considered to be aged 18 plus years and could therefore be confusing – even amongst those recognising that some employees can receive reduced payment up to the age of 21 years.’ 30

[166] The note under clause 16.1 directs attention to the fact that clause 16.2 provides for junior rates for particular employees. We do not propose to change this aspect of the clause, save for changing ‘is at clause 16.2’ to ‘are at clause 16.2’.

[167] As to issue (iii), we will reverse the order of the columns in table 3, as sought in the parties’ joint submission (at paragraph [24]).

[168] Clause 16.2 deals with junior wages:

16.2 Junior wages (Pharmacy Assistants only)

An employer must pay an employee, who is classified as a pharmacy assistant and aged under 21 years, at least at the following percentage of the minimum rate that would otherwise be applicable under Table 3—Minimum wages:

(a) 45% for an under 16 year old;

(b) 50% for a 16 year old;

(c) 60% for a 17 year old;

(d) 70% for an 18 year old;

(e) 80% for a 19 year old;

(f) 90% for a 20 year old.

[169] The parties jointly submit that clause 16.2 should be in the format of a table rather than a list.

[170] Clause 16.2 will be redrafted in the form of a table and further submissions sought as to the most appropriate format (i.e. a list or a table). Clause 16.2 in the form of a Table would be in the following form:

‘An employer must pay an employee, who is classified as a pharmacy assistant and aged as specified in column 1 of Table 4—Junior Wages (Pharmacy Assistants only) , at least at the percentage specified in column 2 of the minimum rate that would otherwise be applicable under Table 3—Minimum wages:’

Table 4—Junior wages (Pharmacy Assistants only)

Column 1 Age	Column 2 % of minimum wages
Under 16 years of age	45
16 years of age	50
17 years of age	60
18 years of age	70
19 years of age	80
20 years of age	90

[171] We will include the Table form in the next iteration of the exposure draft and invite further submissions as to the most appropriate format (that is, a list or a Table).

Clause 17 – Annualised Salary (Pharmacists only)

[172] This clause is the subject of a substantive claim and a review, which is before another Full Bench.

[173] The drafting of this clause will be the subject of further consideration once the substantive issues have been determined.

Clause 18 – Allowances

[174] There were a number of submissions directed at various parts of clause 18. It is convenient to first set out the relevant part of clause 18 and then deal with the submissions put in respect of that part.

NOTE: Schedule C—Summary of Allowances contains a summary of monetary allowances and methods of adjustment.

[175] The parties’ joint submission observes that clause 18 is prefaced by a ‘note’ rather than an explanatory clause concerning the remainder of the provisions in this clause and submit that the note be replaced by the following wording:

‘18.1 Employers must pay to an employee the allowances the employee is entitled to under this clause. See schedule C for a summary of monetary allowances and method of adjustment.’

[176] We agree with the proposition that an introductory clause would make the term easier to understand. Such clauses are already a feature of the revised exposure draft (see clause 15—Breaks). An introductory clause in the terms set out below will be included in the next exposure draft and interested parties will have an opportunity to comment on it:

‘Clause 18 gives employees an entitlement to monetary allowances of specified kinds in specified circumstances.

NOTE: Schedule C – Summary of Allowances contains a summary of monetary allowances and methods of adjustment.’

[177] In our view, the introductory clause should not contain an obligation to pay as that obligation is contained in each subclause that provides for an allowance.

[178] Clause 18.1 deals with meal allowances:

18.1 Meal allowances

(a) Clause 18.1 applies to an employee to whom each of the following applies:

(i) the employee has worked 6 or more ordinary hours on any day;

(ii) the employee is required to work on that day overtime, or more than 1.5 hours beyond the time at which the employee ordinarily finishes work for the day, unless the hours worked were agreed under clause 10—Part-time employment;

(iii) the employee was not advised of the requirement mentioned in subparagraph (ii) on or before the previous day;

(iv) the employee cannot reasonably return home for a meal within the period of the meal break.

(b) The employer must:

(i) pay the employee a meal allowance of $17.85; or

(ii) supply the employee with an adequate meal.

(c) If the number of hours worked under a requirement mentioned in clause 18.1(a)(ii) exceeds 4, the employer must pay the employee a further meal allowance of $15.99.

[179] The unions submit that clause 18.1 is not consistent with the modern awards objective of being simple and easy to understand and does not follow a logical sequence.

[180] Clause 18.1 of the revised exposure draft replaces clause 19.1 of the current award, which states:

19.1 Meal allowance

(a) An employee who has worked six hours or more during ordinary time and who is then consecutively required to work overtime, or after the employees ordinary time of ending work, for more than one and a half hours will be either supplied with an adequate meal by the employer or be paid a meal allowance of $17.85. Where such overtime work exceeds four hours a further meal allowance of $15.99 will be paid.

(b) This provision will not apply in circumstances where the employer has advised the employee of the requirement to work overtime on the previous day.

(c) No meal allowance will be payable where any employee could reasonably return home for a meal within the period allowed.

(d) No meal allowance will be payable where the additional hours are agreed hours as per clause 12.3.

[181] In the User testing project the participants clearly favoured the list format (as in proposed clause 18.1) over the text dense format (as in clause 19.1 of the current award). The User testing report noted that:

‘For most participants, breaking up dense text by making use of the “list” format was a considerable improvement. It was generally the first positive feature that was commented upon when comparing the plain language draft with the current award. Splitting out dense pieces of text into more discrete pieces of information was the chief advantage of this approach because it presented the provisions in a way that participants wanted to absorb the information.’ 31

[182] Further, the participants in the User testing project preferred the redrafted form of this provision to the current clause due to:

● simpler layout;
● indentation; and
● dollar amounts being bolded. 32

[183] As mentioned, the unions submit that clause 18.1 in the revised exposure draft ‘does not follow a logical sequence’ and propose the following alternative wording:

18. Allowances

18.1 Employers must pay to an employee the allowances the employee is entitled to under this clause. See Schedule C for a summary of monetary allowances and method of adjustment.

18.2 Meal allowances

The employer must pay the employee a meal allowance of $17.46 or supply the employee with an adequate meal when:

(a) the employee has worked 6 or more ordinary hours on any day; and

(b) the employee is required to work on that day overtime, or more than 1.5 hours beyond the time at which the employee ordinarily finishes work for the day, unless the hours worked were agreed under clause 10—Part-time employment; and

(c) the employee was not advised of the requirement mentioned in subparagraph (ii) on or before the previous day; and

(d) the employee cannot reasonably return home for a meal within the period of the meal break.

(e) Where overtime referred to in clause 18.2(ii) exceeds 4 hours a further meal allowance of $15.64 must be paid. 33

[184] The essential differences between the unions’ proposal and clause 18.1 are in the introductory words (underlined above) and the use of the conjunctive (‘and’) at the end of each paragraph.

[185] As noted earlier, we accept that a conjunctive should be inserted at the end of each of a series of paragraphs or subparagraphs to show that each of the matters are intended to be cumulative. In that respect we agree with the unions’ proposal.

[186] However, contrary to the unions’ submission, we prefer the format of clause 18.1 in that it sets out an application clause first, so that users know whether or not the clause applies to them before working out the entitlements. The format adopted is consistent with the Drafting Guidelines, which state:

‘8. General matters
8.1 Use an application clause to help streamline a provision.
An application clause is a subclause at the beginning of a clause that states to whom, or in what circumstances the clause applies…’

[187] We will amend clause 18.1 to add the conjunctive, ‘and’, at the end of subparagraphs (i), (ii) and (iii). No other changes will be made to clause 18.1.

[188] Clause 18.2 deals with ‘on-premise meal allowances’:

18.2 On-premise meal allowance

(a) Clause 18.2 applies to a pharmacist who is required to take a meal break on the premises so as to attend to urgent matters requiring the involvement of a pharmacist.

(b) The employer must pay the pharmacist at the enhanced hourly rate for the period of the meal break, regardless of other penalty rates to which the pharmacist is entitled.

(c) In paragraph (b), the enhanced hourly rate means 150% of the minimum hourly wage of the pharmacist. See column 2 of Table 3—Minimum wages.

[189] The parties’ jointly submit that clauses 18.2(b) and (c) have unnecessarily complicated the operation of clause 19.2 of the modern award and that the clause introduces the concept of an ‘enhanced hourly rate’ which has no industrial meaning and is a concept foreign to users of the modern award. They submit that clause 18.2(b) should be reworded as follows:

‘the employer must pay the pharmacists at a penalty rate of 150% for the period of the meal break, regardless of any other penalty rates to which the pharmacist is entitled.’

[190] Clause 18.2 of the revised exposure draft replaces clause 19.2 of the current award, which states:

19.2 On-premise meal allowance (Pharmacists only)

An employee who is required to take their meal break on the premises for the purpose of attending to urgent matters requiring the input of a qualified pharmacist will be paid at time and a half for the period of the meal break, regardless of other penalties that apply on that day.

[191] We accept that the expression ‘enhanced hourly rate’ is a new concept. The introduction of such a concept may create some confusion among users of the award as to the distinction between an ‘enhanced hourly rate’ and a penalty rate. We propose to delete ‘enhanced hourly rate’ and insert ‘penalty rate’ as follows (changes tracked):

18.2 On-premise meal allowance

(a) Clause 18.2 applies to a pharmacist who is required to take a meal break on the premises so as to attend to urgent matters requiring the involvement of a pharmacist.

(b) The employer must pay the pharmacist at the enhanced hourly penalty rate for the period of the meal break, regardless of other penalty rates to which the pharmacist is entitled.

(c) In paragraph (b), the enhanced hourly penalty rate means 150% of the minimum hourly wage of the pharmacist. See column 2 of Table 3—Minimum wages.

[192] Clause 18.6 deals with the reimbursement of taxi fares:

18.6 Taxi fare reimbursement

(a) Clause 18.6 applies to an employee to whom each of the following applies:

(i) the employee starts work before 7.00 am or finishes work after 10.00 pm;

(ii) the employee’s regular means of transport is not available;

(iii) the employee is unable to arrange their own alternative means of transport;

(iv) a proper means of transport to or from the employee’s usual place of residence is not provided to, or arranged for, the employee by the employer at no cost to the employee.

(b) The employer must reimburse the employee the cost they incurred in taking a taxi between the place of employment and the employee’s usual place of residence.

[193] Business SA submit, and the Pharmacy Guild agreed, that clause 18.6 alters the legal effect of clause 19.6 of the modern award in two ways. First, the expression ‘and/or’ in the modern award has been replaced with ‘or’ in the revised exposure draft and this narrows the employee’s entitlement to the reimbursement. Second, the expression ‘from the place of employment’ and ‘to the employee’s usual place of residence’ is clearly interpreted as only applying to a single direction whereas the expression ‘between’ used in the revised exposure draft could be interpreted to apply to travel in either direction (work to home or home to work).

[194] Clause 18.6 is proposed to replace clause 19.6 of the current award, which is in the following terms:

‘Where an employee commences and/or ceases work after 10.00 pm on any day or prior to 7.00 am on any day and the employee’s regular means of transport is not available and the employee is unable to arrange their own alternative transport, the employer will reimburse the employee for the cost of a taxi fare from the place of employment to the employee’s usual place of residence. This will not apply if the employer provides or arranges proper transportation to and or from the employee’s usual place of residence at no cost to the employee.’

[195] The current award term is internally inconsistent.

[196] The current award term applies where an employee starts work before 7.00 am or commences or ceases work after 10.00 pm. If the employee’s regular means of transport is not available (and they are unable to arrange alternate transport), then the employer is required to reimburse the employee for the cost of a taxi fare ‘from the place of employment to the employee’s usual place of residence’. On a literal reading clause 19.6 only entitles an employee for the reimbursement of a taxi fare from their place of employment to their usual place of residence. That is, the entitlement to reimbursement only applies to a journey from work to home – there is no entitlement to reimbursement of a taxi fare from home to work.

[197] A literal interpretation of the expression ‘from the place of employment to the employee’s usual place of residence’ is inconsistent with the rest of clause 19.6 and results in unfairness. Such an interpretation would mean that an employee required to work before 7.00 am would not be entitled to be reimbursed for the cost of a taxi fare from their home to work. Such a result is inconsistent with the introductory sentence of clause 19.6, which makes clear it is intended to cover two circumstances – where an employer commences or ceases work after 10.00 pm and where an employee commences work prior to 7.00 am.

[198] A literal construction is also inconsistent with the proviso in the last sentence of clause 19.6 which refers to the provision of transportation ‘to and or from the employee’s usual place of residence’.

[199] We acknowledge that clause 18.6(b) of the revised exposure draft may be said to extend the circumstances in which an employee is entitled to be reimbursed for the cost of a taxi fare. But in our view such an extension is warranted as a matter of merit and is consistent with the rest of clause 19.6. We do not propose to vary clause 18.6(b).

[200] As to the first point raised by Business SA and the Pharmacy Guild, we agree that clause 18.6 may be construed as removing a circumstance in which an employee may have an entitlement to reimbursement. Clause 18.6(a)(i) provides that the clause applies to an employee who ‘starts work before 7.00 am or finishes work after 10.00 pm’. The current clause 19.6 applies where an employee ‘commences and/or ceases work after 10.00 pm on any day or prior to 7.00 am on any day’ (emphasis added). The point advanced by the employer organisations is that, contrary to the current entitlement, clause 18.6 does not apply where an employee starts work after 10.00 pm.

[201] We agree. Clause 18.6 will be amended to make it clear that the clause applies to the circumstance where an employee starts work after 10.00 pm.

[202] We note that clause 18.6 is confined to the reimbursement of the cost of taking a taxi. Given the emergence of other transport operators, such as Uber, our provisional view is that it is appropriate to extend the operation of the clause. We propose to amend clause 18.6(b) as follows:

‘18.6 Taxi fare Transport reimbursement

(a) Clause 18.6 applies to an employee to whom each of the following applies:

(i) the employee starts work before 7.00 am or starts or finishes work after 10.00 pm; and

(ii) the employee’s regular means of transport is not available; and

(iii) the employee is unable to arrange their own alternative means of transport; and

(iv) a proper means of transport to or from the employee’s usual place of residence is not provided to, or arranged for, the employee by the employer at no cost to the employee.

(b) The employer must reimburse the employee the cost they reasonably incurred in taking a taxi between the place of employment and the employee’s usual place of residence commercial passenger vehicle from the employee’s usual place of residence to the place of employment or from the place of employment to the employee’s usual place of residence, whichever is applicable.’

[203] The words ‘commercial passenger vehicle’ have been used instead of naming a specific operator such as Uber in order to ensure that the provision applies to any future services that become available. The word ‘reasonably’ has been inserted to ensure that employees do not unreasonably seek reimbursement for the cost of more expensive commercial passenger vehicle (such as Uber Black) when a more reasonably priced option is available.

[204] We invite the parties to comment on the proposed amendment.

Clause 20 – Overtime

[205] Clause 20 of the revised exposure draft provides as follows:

NOTE: Under the National Employment Standards (see section 62 of the Act) an employee may refuse to work additional hours if they are unreasonable. Section 62 sets out factors to be taken into account in determining whether the additional hours are reasonable or unreasonable.

20.1 Application of overtime for full-time employees

An employer must pay a full-time employee at the overtime rate for any hours worked at the direction of the employer:

(a) in excess of the number of hours specified in clause 9—Full-time employment or 13.3 (maximum daily hours); or

(b) between midnight and 7.00 am.

20.2 Application of overtime for part-time employees

An employer must pay a part-time employee at the overtime rate for any hours worked at the direction of the employer:

(a) in excess of the number of hours that the employee has agreed to work under clause 10.4 and 10.10 (part-time employment); or

(b) between midnight and 7.00 am.

NOTE: A part-time employee can agree to work additional ordinary hours under clause 10.10 on the terms applicable to hours worked by a casual employee up to the maximum hours set out in clause 13.3 (maximum daily hours) and clause 9—Full-time employment.

[206] The Pharmacy Guild submit that the note should be removed because the Commission determined that any summaries of NES entitlements or links to legislation would not be included in legal instruments.

[207] We disagree. The Note at the beginning of the clause does not purport to be a summary of, or operate as a link to, the NES but merely points the reader to section 62.

[208] The interested parties have reached a consent position in relation to the SDA’s substantive claim with respect to overtime.

[209] Clause 20 will be redrafted to take into account the consent position of the parties in relation to the SDA’s substantive claim. All parties will have an opportunity to comment on the revised clause.

Clause 21 – Penalty Rates

[210] Clause 21 of the revised exposure draft states:

21. Penalty rates

21.1 Clause 21 sets out higher rates of pay (penalty rates) for ordinary hours worked at specified times or on specified days.

NOTE: Clause 20—Overtime prescribes overtime rates for hours worked in excess of, or outside ordinary hours.

21.2 Penalty rates are not cumulative on overtime rates.

21.3 Payment of penalty rates

(a) An employer must pay an employee in accordance with column 2 of Table 5—Penalty rates for hours worked by the employee during a period specified in column 1 of that table; and

(b) The penalty rate specified in column 2 of Table 5 must be applies applied to the applicable minimum wage for the employee classification in accordance with clause 16—Minimum wages.

NOTE: Table 3—Minimum wages shows the minimum hourly wage applicable under clause 16.1. If an employee is classified as a pharmacy assistant and aged under 21, see also clause 16.2—Junior wages (Pharmacy Assistants only).

Table 5—Penalty rates

Column 1 For hours worked on	Column 2 Full-time and part-time penalty rate		Column 3 Casual penalty rate (inclusive of casual loading)
Monday to Friday
Between 7.00 am and 8.00 am		150%	175%
Between 7.00 pm and 9.00 pm		125%	150%
Between 9.00 pm and midnight		150%	175%
Saturday
Between 7.00 am and 8.00 am		200%	225%
Between 8.00 am and 6.00 pm		125%	150%
Between 6.00 pm and 9.00 pm		150%	175%
Between 9.00 pm and midnight		175%	200%
Sunday—all day		200%	225%
Public holidays—all day		250%	275%

[211] The Pharmacy Guild submit that use of the term ‘higher rates of pay (penalty rates)’ at clause 21.1 of the revised exposure draft should be replaced with ‘penalty rates’ because clause 21 does not deal with rates of pay, it prescribes penalty rates applicable to the minimum rates of pay prescribed by the modern award for work at particular times.

[212] We agree, clause 21.1 will be amended to replace ‘higher rates of pay (penalty rates)’ with ‘penalty rates’.

[213] The unions submit that clause 14 in the exposure draft published on 9 October 2015 should be used because it is clearer and easier to understand than clause 21. If the wording in clause 21.3 of the exposure draft is retained, then reference to column 3 casual penalty rate needs to be included. Clause 21.3 of the revised exposure draft makes no reference to the casual penalty rate contained in Table 5.

[214] Clause 14 of the 9 October 2015 exposure draft was in the following terms:

14. Penalties

14.1 Penalty rates

The employer will pay to an employee the following rates for all ordinary hours worked during the specified periods:

Hours worked	Penalty rate	Casual penalty rate (inclusive of casual loading)
	% of minimum hourly rate
Monday to Friday
Before 8.00 am	150	175
Between 7.00 pm and 9.00 pm	125	150
Between 9.00 pm and midnight	150	175
Saturday
Before 8.00 am	200	225
Between 8.00 am and 6.00 pm	125	150
Between 6.00 pm and 9.00 pm	150	175
Between 9.00 pm and midnight	175	200
Sunday—all day	200	225
Public holidays—all day	250	275

[215] The point advanced by the unions may be addressed by substituting for clause 21.3(a) and (b) the following:

(a) An employer must pay a full-time or part-time employee in accordance with column 2 of Table 5—Penalty rates, and a casual employee in accordance with column 3 of that table, for hours worked by the employee during a period specified in column 1 of that table; and
(b) the penalty rate specified in column 2 or 3 of Table 5—Penalty rates must be applied to the applicable minimum wage for the employee classification in accordance with clause 16—Minimum wages.

[216] We will make this change in the next iteration of the exposure draft and will provide an opportunity for interested parties to comment.

Clause 22 – Annual Leave

[217] We note that clause 29.4 of the current award, dealing with leave in advance, has been varied and the next version of the exposure draft will reflect these changes.

Clause 25 – Public Holidays

[218] The cross-reference in clause 25.2 of the revised exposure draft will amended (from 21.1 to 21.3), as proposed in the parties’ joint submission.

Schedule A – Classification Definitions

[219] The Pharmacy Guild submits that clause A.3 of the revised exposure draft has altered the legal operation of clause B.3 of the modern award. Clause B.3 currently refers to a person who is engaged as a ‘Dispensary Assistant’ being paid as a ‘Pharmacy Assistant Competency Level 3’, whereas clause A.3 of the revised exposure draft refers to an employee ‘required by the employer to… assist a pharmacist in the dispensing section of a community pharmacy’.

[220] The Pharmacy Guild contends that ‘Dispensary Assistant’ term is commonly used in the industry and they submitted the following proposed definition of a ‘Dispensary Assistant’:

‘A dispensary assistant is a suitably qualified non-pharmacist, who performs appropriately supervised dispensary tasks according to state/territory legislation and professional guidelines to assist a pharmacist in ordering and unpacking of stock; repackaging stock; preparing dispensing labels; attaching dispensing and cautionary and advisory labels; gathering non-clinical information and collating prescriptions.

A dispensary assistant may also assist a pharmacist in the delivery of professional services such as the preparation of dose administration aids, collating staged supply medicines and administrative tasks for other services.’

[221] The proposed definition is somewhat ambiguous, using terms such as ‘suitably qualified’ and ‘appropriately supervised dispensary tasks’. Clause A.3 of the revised exposure draft also requires adjustment to make it clear that the term refers to an employee specifically employed as a dispensary assistant and that these employees are to be classified as a Pharmacy Assistant Level 3.

[222] Our provisional decision is that clause A.3 and the definition of ‘Dispensary Assistant’ will be included in the next version of the exposure draft as follows (changes tracked):

‘Schedule A—Classification Definitions

A.1 Pharmacy assistant level 1 is an employee working as a pharmacy assistant in a community pharmacy who has not acquired the competencies required to hold a qualification in Community Pharmacy and is not covered by any other classification in this Schedule.

A.2 Pharmacy assistant level 2 is an employee who has acquired the competencies required to be the holder of a Certificate II in Community Pharmacy, as determined by the National Quality Council or a successor body.

A.3 Pharmacy assistant level 3 is an employee who has acquired the competencies required to be the holder of a Certificate III in Community Pharmacy, as determined by the National Quality Council or a successor body, and who is required by the employer to work at this level.

A pharmacy assistant level 3 may be required by the employer to perform any of the following duties:

(a) supervise pharmacy assistants levels 1 or 2; or

(b) assist a pharmacist in the dispensing section of a community pharmacy; or

(b) work in a compounding lab or compounding section of a community pharmacy assisting with extemporaneous preparations as the major part of their duties; or

(c) perform the duties of a dispensary assistant, that is, assist a pharmacist in:

(i) ordering, unpacking and repackaging stock; or

(ii) preparing dispensing labels; or

(iii) attaching labels (whether of a dispensing, cautionary or advisory nature) to stock; or

(iv) gathering non-clinical information; or

(v) collating prescriptions; or

(vi) delivering professional services such as the preparation of dose administration aids, collating staged supply medicines or performing other administrative tasks.’

[223] The parties’ joint submission is that the reference to section 5 of the Health Practitioner Regulation National Law in clauses A.5 and A.6 of revised exposure draft is incorrect and should be removed. The parties note there is no uniform Health Practitioner Regulation National Law, although each state has legislation modelled on Queensland legislation. The parties further submit that, while each state has legislation defining the meaning of ‘pharmacy student’ and ‘pharmacy intern’, these definitions may not be contained at section 5 of the legislation.

[224] At the hearing on 15 December 2016 we were informed that there were instances where the definitions were not set out in section 5 of the relevant State law. On that basis clauses A.5 and A.6 of the revised exposure draft will be amended to delete the reference to ‘section 5 of’.

4. Next steps

[225] In this decision we have determined a number of the contentious issues raised in relation to the revised exposure draft and have expressed a range of provisional views in respect of a range of other issues. At this stage we have not addressed all of the issues raised by the parties.

[226] We will publish a further revised exposure draft shortly. Interested parties are invited to comment on the further revised exposure draft and the provisional views set out at paragraphs [76], [85], [130], [142], [155] and [157], and the issues raised at paragraphs [77], [124], [125], [144] and [205]. In the course of commenting on these issues we would also ask the parties to identify any residual issues they have raised which we have not yet addressed which require determination. Submissions should be filed in accordance with the following timetable:

(i) Submissions in respect of the further revised exposure draft, the provisional views expressed in this decision and any residual issues which have not yet been determined should be filed by no later than 4pm on Monday 6 February 2017.

(ii) Submissions in reply should be filed by no later than 4pm on Friday 10 February 2017.

[227] A further hearing will be held at 9am on Wednesday 15 February 2017.

[228] All submissions should be sent to amod@fwc.gov.au. A formal notice of listing will be published shortly.

PRESIDENT

 1   This was confirmed in a Statement of 11 August 2016 and the Statement of 13 December 2016

 2   See Statement, 6 May 2016 [2016] FWC 2837.

 3   The TCFUA adopted and supported the ACTU submission.

 4   SDA submissions 17 November 2016 at paragraph 8.

 5   AMWU submissions 17 November 2016 at paragraph 3.

 6   SDA submissions 17 November 2016 at paragraph 20.

 7   Ai Group submissions 17 November 2016 at p.2.

 8   4 Yearly Review of Modern Awards – Annual Leave [2016] FWCFB 3177 at [135]–[140].

 9   See s.599 of the FW Act.

 10   National Retail Association v Fair Work Commission [2014] FCAFC 118 at [18].

 11   The Australian Industry Group re Manufacturing and Associated Industries and Occupations Award 2012 [2012] FWA 2556.

 12   Transcript of 23 November 2016 conference at paragraphs [158]–[164].

 13   [2016] FWCFB 9412.

 14   [2014] FWCFB 9412 at [59]–[63]

 15   Transcript of 23 November 2016 at paragraph [187], albeit that the comment was directed at one of the standard clauses, not the draft Guidelines.

 16   [2014] FWCFB 9412 at [35].

 17   AMWU submission 17 November 2016 at paragraphs 19–20.

 18   Except where the reference is to a paragraph within the same subclause.

 19   The joint submission’ is made on behalf of the Pharmacy Guild, APESMA, ABI, Business SA, HSU and the SDA.

 20   User testing report at pp.10–11.

 21   Transcript 15 December 2016 at paragraph [28].

 22   See transcript at paragraphs [206] to [236]

 23   Ibid at paragraph [233]

 24   Ibid at paragraphs [68] to [203]

 25   See transcript at paragraph [270]

 26   Transcript 17 December 2015 at paragraph [821].

 27   Pharmacy Guild submission of 22 December 2016. Business SA relies on the submissions of the Pharmacy Guild in respect of this matter.

 28   Union parties’ joint submission, 22 December 2016 at paragraphs 23–27.

 29   Note the rates in this table operated prior to the Annual Wage Review 2015–16.

 30   User testing report at p.29.

 31   User testing report at p.8.

 32   Ibid at p.34.

 33   Joint Union submission 24 May 2016 at p.12.

Printed by authority of the Commonwealth Government Printer

<Price code G, PR589464>