STATEMENT

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

4 yearly review of modern awards – Plain language re-drafting – Pharmacy Industry Award 2010
(AM2016/15)

4 yearly review of modern awards – plain language re-drafting – Pharmacy Industry Award 2010 – casual conversion clause.

[1] This statement deals with the insertion of the model casual conversion clause arising out of the Part-time and Casual employment common issue matters into the Pharmacy Industry Award 2010 (the Pharmacy Award). 1

[2] In accordance with a decision issued on 8 November 2018 2 (the November 2018 decision), a draft determination varying the Pharmacy Award to insert the model clause has been prepared. The determination is attached to this statement.

Background

[3] In a decision issued on 20 January 2017 (the January 2017 decision) we made the following comments:

‘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.’ 3

[4] At paragraph [130] we expressed the following provisional view:

‘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.’

[5] Clause 11.2, which has subsequently been deleted from the plain language exposure draft, provided that:

‘A casual employee does not have an entitlement to reasonably predictable hours of work.’ 4

[6] Clause 11.2 is encompassed in clause 13.1 of the Pharmacy Award, which was re-drafted in the plain language exposure draft. Clause 13.1 of the Pharmacy Award provides that:

‘A casual employee is an employee engaged as such and who does not have an expectation or entitlement to reasonably predictable hours of work.’

[7] The conference referred to in the January 2017 decision occurred before this Full Bench on 15 December 2016. 5 During the conference, parties described their reasons for interpreting current clause 13.1 as underpinning a practice of casual conversion where employees engaged as casual employees who come to have reasonably predictable hours of work are converted to part-time.6 Despite this practice, as expressed in the January 2017 decision, on a plain reading of the current award it does not provide a process for the conversion from casual to part-time.

[8] More recently, a conference was held before Vice President Hatcher on 27 July 2017 7 (the July 2017 conference) to deal with the insertion of a casual conversion provision in the Pharmacy Award arising out of the Part-time and Casual Employment common issue decision.8 At the conference it was decided that, as no party wished to raise Pharmacy award-specific issues, the model clause that ultimately emerged from the common issue matter would be inserted into the Pharmacy Award.9

[9] In accordance with the agreement reached at the July 2017 conference and the November 2018 decision, a draft determination has been prepared to vary the Pharmacy Award to include this model term. We propose to insert the model term at clause 13.6 of the Pharmacy Award.

Next steps

[10] A draft determination has been prepared and can be viewed at Attachment A of this statement.

[11] Interested parties are invited to make submissions in relation to the draft determination by 4.00 pm, Friday 14 December 2018.

[12] All material should be sent to amod@fwc.gov.au.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR702882>

Attachment A

Fair Work Act 2009

s.156 – 4 yearly review of modern awards

4 yearly review of modern awards – Plain language re-drafting – Pharmacy Industry Award 2010

(AM2016/15)

PHARMACY INDUSTRY AWARD 2010

[MA000012]

4 yearly review of modern awards – plain language re-drafting – Pharmacy Industry Award 2010.

A. Further to the Full Bench decision issued by the Fair Work Commission on 8 November 2018 [[2018] FWCFB 6803],¹⁰ the above award is varied as follows:

1. By inserting clause 13.6 as follows:

13.6 Right to request casual conversion

(a) A person engaged by a particular employer as a regular casual employee may request that their employment be converted to full-time or part-time employment.

(b) A regular casual employee is a casual employee who has in the preceding period of 12 months worked a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to perform as a full-time employee or part-time employee under the provisions of this award.

(c) A regular casual employee who has worked equivalent full-time hours over the preceding period of 12 months’ casual employment may request to have their employment converted to full-time employment.

(d) A regular casual employee who has worked less than equivalent full-time hours over the preceding period of 12 months’ casual employment may request to have their employment converted to part-time employment consistent with the pattern of hours previously worked.

(e) Any request under this subclause must be in writing and provided to the employer.

(f) Where a regular casual employee seeks to convert to full-time or part-time employment, the employer may agree to or refuse the request, but the request may only be refused on reasonable grounds and after there has been consultation with the employee.

(g) Reasonable grounds for refusal include that:

(i) it would require a significant adjustment to the casual employee’s hours of work in order for the employee to be engaged as a full-time or part-time employee in accordance with the provisions of this award – that is, the casual employee is not truly a regular casual employee as defined in paragraph (b);

(ii) it is known or reasonably foreseeable that the regular casual employee’s position will cease to exist within the next 12 months;

(iii) it is known or reasonably foreseeable that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months; or

(iv) it is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.

(h) For any ground of refusal to be reasonable, it must be based on facts which are known or reasonably foreseeable.

(i) Where the employer refuses a regular casual employee’s request to convert, the employer must provide the casual employee with the employer’s reasons for refusal in writing within 21 days of the request being made. If the employee does not accept the employer’s refusal, this will constitute a dispute that will be dealt with under the dispute resolution procedure in clause 9. Under that procedure, the employee or the employer may refer the matter to the Fair Work Commission if the dispute cannot be resolved at the workplace level.

(j) Where it is agreed that a casual employee will have their employment converted to full-time or part-time employment as provided for in this clause, the employer and employee must discuss and record in writing:

(i) the form of employment to which the employee will convert – that is, full-time or part-time employment; and

(ii) if it is agreed that the employee will become a part-time employee, the matters referred to in clause 12.2.

(k) The conversion will take effect from the start of the next pay cycle following such agreement being reached unless otherwise agreed.

(l) Once a casual employee has converted to full-time or part-time employment, the employee may only revert to casual employment with the written agreement of the employer.

(m) A casual employee must not be engaged and re-engaged (which includes a refusal to re-engage), or have their hours reduced or varied, in order to avoid any right or obligation under this clause.

(n) Nothing in this clause obliges a regular casual employee to convert to full-time or part-time employment, nor permits an employer to require a regular casual employee to so convert.

(o) Nothing in this clause requires an employer to increase the hours of a regular casual employee seeking conversion to full-time or part-time employment.

(p) An employer must provide a casual employee, whether a regular casual employee or not, with a copy of the provisions of this subclause within the first 12 months of the employee’s first engagement to perform work. In respect of casual employees already employed as at [date of operation], an employer must provide such employees with a copy of the provisions of this subclause by [date of operation].

(q) A casual employee’s right to request to convert is not affected if the employer fails to comply with the notice requirements in paragraph (p).

3. By updating the table of contents and cross-references accordingly.

B. This determination comes into operation from [date to be inserted]. In accordance with s.165(3) of the Fair Work Act 2009 these items do not take effect until the start of the first full pay period on or after [date to be inserted].

PRESIDENT

 1   See [2018] FWCFB 4695 at para 31; see also [2017] FWCFB 3541.

 2   [2018] FWCFB 6803 at para 24.

 3   [2017] FWCFB 344 at para 11.

 4   Pharmacy Industry Award 2017 – Plain Language Exposure Draft.

 5   Transcript, 15 December 2016.

 6   Transcript, 15 December 2016 [PNs342–385].

 7   Transcript, 27 July 2017.

 8   [2017] FWCFB 3541.

 9   Transcript, 27 July 2017 [PNs23–35].

10 See also [2018] FWCFB 5504.