MODERN AWARDS – 4 yearly review – ss.134, 156 Fair Work Act 2009 – Full Bench – decision to be read in conjunction with Full Bench decision issued on 20 January 2017 (January Decision) [[2017] FWCFB 344] – review of Pharmacy Industry Award 2010 (Pharmacy Award) arising out of plain language re-drafting process – January Decision determined number of contentious award-specific issues and expressed range of provisional views on other issues – also amended plain language drafting guidelines – interested parties invited to make submissions on revised draft guidelines, provisional views on award-specific issues in Pharmacy Award and revised draft – submissions received from Business SA, Pharmacy Guild of Australia, and joint submissions from Shop, Distributive and Allied Employee’s Association (SDA), Health Services Union (HSU) and Association of Professional Engineers, Scientists and Managers, Australia (APESMA) (Joint Union submissions) – Full Bench confirmed provisionally expressed view in relation to Clause 2 to remove definitions of ‘on-hire employee’ and ‘on-hire employer’ and included existing definition of ‘on-hire’ – Full Bench noted in January Decision that it was difficult to determine from Clause 4-Coverage-on-hire whether person to whom labour was supplied needed to be an employer covered by Pharmacy Industry Award – submissions were conflicting – conference to be convened by Hatcher VP to facilitate further discussions between parties in respect of this issue – Full Bench in January Decision identified ambiguity in respect of definition of ‘community pharmacy’ in Clause 4-Coverage-‘definition of community pharmacy industry’ – proposed that words ‘by retail’ in Clause 4.1(a) of exposure draft be deleted – provisionally expressed view confirmed and proposed change to clause 4.1 adopted – Full Bench in January Decision noted there seemed to be tension between Clause 10.5 and Clause 10.8 (now 10.9) – consensus amongst interested parties that there was no tension – Full Bench did not propose to take any further action – parties were invited in January Decision to comment on whether agreement referred to in Clause 10.10 (now 10.12) should be in writing – Full Bench varied clause 10.12 to require that agreement to work additional hours must be in writing but was not persuaded it was necessary to insert cross-reference to clause 10.5 – agreed with Pharmacy Guild submission and did not propose to adopt amendment proposed by Joint Union submissions to re-insert ‘on a regular pattern of work’ from clause 12.2 of current award – Joint Union submissions also raised issue regarding part-time employees working additional hours – Full Bench not convinced that plain language redraft of Clause 10.12 changed legal effect of clause and did not propose to make any further amendments – expressed provisional view in January Decision that Clause 11.2 be deleted and casual conversion clause be inserted – general agreement amongst parties that casual conversion clause be inserted but no agreement as to form of that clause – telephone conference to be held after decision in Part-time/Casuals case is issued – Full Bench in January Decision indicated provisional view that Clause 13.4 be amended – parties supported proposed amendment and provisional view confirmed – Full Bench in January Decision expressed provisional view that Clause 14.1(e) of exposure draft be amended to delete words ‘every four weeks’ and insert ‘in that four week cycle’ – Pharmacy Guild did not support proposed amendment and submitted that the words changed legal effect of the award – Full Bench disagreed with Pharmacy Guild’s position to import definitions used in respect of shiftworkers and did not propose to vary clause 14.1 of revised exposure draft – consensus position put by interested parties in relation to junior wages in Clause 16.2 being formatted as a table – table format to be adopted – Joint Union submission proposed introductory clause at Clause 18.1 to make clause 18 easier to understand – no submissions received so Full Bench proposed to adopt introductory clause – Clause 18.7 updated to make it clear it applied to circumstances where employee starts work after 10.00 pm – interested parties reached consent position in relation to redrafting of Clause 20 – conference to be held before Hatcher VP to provide interested parties with opportunity to comment on proposed amendments – two amendments in Clause 21-Penalty Rates – first, words ‘higher rates of pay (penalty rates)’ replaced with ‘penalty rates’ in Clause 21.1 – Clauses 21.3(a) and (b) revised to include reference to Table 5-Penalty rates – parties to convene at conference before Hatcher VP to facilitate further discussions between parties in respect of changes to Schedule AClassification definitions – no further issues raised by parties – Full Bench to issue further revised exposure draft after conferences convened by Hatcher VP have taken place. 4 yearly review of modern awards – Plain language re-drafting
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