[2018] FWCFB 7621

The attached document replaces the document previously issued with the above code on 14 December 2018.

In the first line of paragraph [123] the word “review” is added after the words “The conduct of the 4 yearly”.

In the first line of paragraph [141] the word “in” after Commission is replaced with “the”.

Error in footnote 78 corrected.

Associate to Vice President Hatcher

Dated 29 August 2019

[2018] FWCFB 7621
FAIR WORK COMMISSION

DECISION

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

4 yearly review of modern awards - Pharmacy Industry Award 2010
(AM2016/28)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT DEAN
COMMISSIONER SPENCER

SYDNEY, 14 DECEMBER 2018

Four yearly review of modern awards – Pharmacy Industry Award 2010 – APESMA Work Value Claim.

Introduction

[1] Pursuant to s 156(1) of the Fair Work Act 2009 (the FW Act), the Fair Work Commission (the Commission) is required to conduct 4 yearly reviews of all modern awards. As part of the 4 yearly review of the Pharmacy Industry Award 2010 (Pharmacy Award), the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) has made a claim for the variation of the Pharmacy Award pursuant to s 156(3) of the FW Act. Section 156(3) permits the variation by the Commission of the minimum wages prescribed in a modern award where it is satisfied that this is justified for work value reasons. APESMA’s primary claim is for the minimum wages in the Pharmacy Award to be increased by an amount necessary to restore what was said to be the proper relativity with the C10 classification rate now found in the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award). The APESMA’s submissions set out the following table explaining its primary claim as follows (noting that the table is based on the Pharmacy Award rates as they were prior to the 3.5% increase awarded as a result of the 2018 Annual Wage Review):

[2] In the alternative, the APESMA sought a 25% increase to all wage rates in the Pharmacy Award. Both as part of its primary and alternative claims, the APESMA also sought a new classification of “Accredited Pharmacist”, to be defined as “a pharmacist who is the holder of an Accredited Pharmacist qualification who undertakes professional services requiring pharmacist accreditation or credentialing”.

[3] In summary terms, the APESMA contended in support of its claims that there had been an increase in the various educational, training and registration requirements for pharmacists, which it submitted was indicative of the increase in the skills, knowledge and responsibility required to perform the role of a pharmacist. It was also argued that the introduction of new types of work (such as professional services) requiring additional skills, knowledge and training, comparatively increased responsibility and accountability for pharmacists. Finally, it was posited that there had been an overall increase in workload, pressure and performance for pharmacists. These changes had occurred, the APESMA submitted, since the work value of pharmacists was last considered in a decision of the Australian Industrial Relations Commission (AIRC) issued on 29 June 1998. 1 The changes relied upon by the APESMA fell into the following five broad categories:

  An increase in various educational and registration requirements which are indicative of the increase in the skills, knowledge and responsibility required to perform the role of a pharmacist.

  The introduction of additional training so a pharmacist can become and retain registration under the legislative requirements for registration of a pharmacist.

  The introduction of new work that requires additional skills, knowledge and training.

  The introduction of new work that has resulted in an increase in responsibility and accountability.

  An increase in workload and an increase in pressure and on skills and the speed with which vital decisions need to be made.

[4] The majority of the changes identified by the APESMA were said to have arisen because of changes in government health and medicines policy and industry initiatives designed to respond to these changes in government policy and to patient needs. The key Federal Government policy changes identified related to the following matters:

  Introduction of the Quality Use of Medicines (QUM) into the National Medicines Policy.

  Medical practitioner shortages, particularly in rural and regional areas.

  Escalating cost to the Australian tax payer of providing a high quality medical service and medicines to the Australian community.

  Increasing number of patients with multiple chronic diseases requiring complex treatment.

  Introduction of many new highly specialised medicines to the Australian market and the extra knowledge required to minimise drug interactions and adverse effects with patients.

  Increasing number of medicines being down-scheduled from prescription only status to pharmacist-only and pharmacy-only status, and the extra knowledge/skills required to safely provide these medicines to the public without a doctor’s review.

[5] The APESMA contended that the introduction of the QUM into the National Medicines Policy in 1999 had been the “major instigator” of changes to the role and work of the pharmacist; in particular, it had changed the role from being someone who was responsible for safely storing and dispensing medicines to a professional playing an increasing role as part of a multi-disciplinary health care team providing a wide range of preventative and primary health care services. The APESMA pointed to the Community Pharmacy Agreements (CPAs) negotiated every five years between the Pharmacy Guild of Australia (PGA) and the Commonwealth Government as evidencing the nature of this change in the role and work of pharmacists. Particular initiatives affecting the work of pharmacists introduced as part of CPAs included Home Medicine Reviews (HMRs), Residential Medication Management Reviews (RMMRs), MedsChecks, asthma management and diabetes management.

[6] The QUM was introduced into the National Medicines Policy in December 1999. It requires all medical professionals, including pharmacists, to select management options wisely, choose suitable medicines if a medicine is considered necessary, and use medicines safely and effectively. Relevantly, it requires:

  identification and implementation of methods to select and communicate the most appropriate medicine or non-medicine option from all available prevention and treatment options, so that the individual gains optimal, cost effective health outcomes;

  identification and implementation of methods to monitor the outcome of the selected treatment option, to allow rapid modification according to response, so that optimal health outcomes are maintained over time;

  provision to patients/consumers of information and counselling to promote quality use of medicines; and

  education of peers and adoption of appropriate standards and models of practice.

[7] Home Medicine Reviews are undertaken by Accredited Pharmacists (discussed later) upon a referral from a medical practitioner, and usually require the pharmacist to conduct the review in the patient’s home and then write a report for the medical practitioner. The pharmacist is required to review what prescription, non-prescription and complementary medicines the patient is taking and to make recommendations for the medical practitioner to discuss with the patient, which might include showing the patient how to take their medicines correctly, explaining why and when to take their medicines and what to expect when taking them, explaining the proper storage of medicines and what problems should be reported to the medical practitioner, checking that the medicines are appropriate to take together and changing them if necessary, clarifying any confusion with generic medicines, and assisting with the patient remembering to take their medicines. HMRs were introduced as part of the third CPA in July 2001, and are intended to reduce the number of persons hospitalised because of their use of medicines. RMMRs are similar to HMRs but are provided to permanent residents of a government-funded aged care facility, and are conducted in collaboration with the resident’s health care team. Like HMRs, RMMRs were introduced as part of the third CPA in 2001 and must be conducted by an Accredited Pharmacist.

[8] MedsChecks and Diabetes MedsChecks were introduced under the fifth CPA in 2010, and involve a structured in-pharmacy review of a patient’s medicines by a pharmacist. It takes about 30 minutes to complete, aims to help patients learn more about their medicines including their effects, proper use and storage and to identify problems patients may be experiencing with their medicines, and requires additional training to be undertaken. Diabetes management is undertaken pursuant to the National Diabetes Services Scheme (NDSS), which is an initiative of the Australian Government which is administered through registered pharmacies. The pharmacist’s role is to provide patients with the equipment and medicines they need to manage their medicines as well as educating and counselling them on initiatives they can take to reduce or eliminate their diabetes such as through weight loss and exercise. The pharmacist must have additional knowledge and skills in the management of diabetes, which is usually obtained by undertaking an appropriate course delivered by an accredited training organisation. As with the NDSS, pharmacies have since 1999 been charged with delivering asthma management services to patients with the aim of educating patients on the proper use of their inhaler device and to assist them to develop an asthma management plan. Pharmacists must obtain specialised training in asthma and its treatment to provide this service, with the training usually taking the form of a course delivered by an accredited training organisation.

[9] Downscaling from the prescription-only category to the pharmacist-only category has occurred with respect to many medicines since 1998, with a total of 33 having been switched between 2000 and 2011. With respect to these medicines, the pharmacist is now required to diagnose minor illnesses to ensure the patient needs the medicine being requested and to determine the appropriate medicine. Prior to dispensing a pharmacist-only medicine the pharmacist needs to determine if dispensing the medicine is appropriate or whether the patient needs to be referred to a medical practitioner. Pharmacists need to counsel the patient as to the illness and educate them on the appropriate use of the medication, and to avoid dispensing drugs (such as pseudoephedrine and codeine-based medications) to those who might be abusing them. The introduction of generic-based medicines into the Pharmaceutical Benefits Scheme (PBS) has also required pharmacies to place heavier reliance upon them for cost reasons, which has added to the responsibility of pharmacists to manage the risk of dispensing them by ensuring accuracy and compliance. It also requires pharmacists to explain to patients the option of using generic medicines, how they may affect them and what the impact and cost differences are.

[10] Other instances of new or changed work relied upon by the APESMA were as follows:

  Clinical intervention: This involves the pharmacist identifying a drug-related problem with a patient and making recommendations to a medical practitioner to prevent or resolve it, including by changing the medication, the means of administration or the patient’s medication-taking behaviour. To undertake this service, introduced under the fifth CPA in 2010, the pharmacist must have undertaken the required training.

  Dose administration aids: Dose administration aids (DAAs) are adherence devices developed to assist medication management by dividing medicines into individual doses and arranged according to the dose schedule throughout the day. They may take the form of a unit dose or multi-dose pack. Since the fifth CPA in 2010 pharmacists have formally provided patients with DAAs, which requires the pharmacist to pack the patient’s medicines into a specially-provided bag, with the pharmacist having to ensure that each medicine is correctly included in the appropriate pouches on order to avoid medical misadventure.

  Staged supply of medicines: This is a program, introduced under the fifth CPA in 2010, for patients to receive their PBS medicines in instalments, particularly patients with mental illness or drug addiction or who otherwise cannot manage their medications safely. Pharmacists are required to have additional skills and knowledge concerning mental illness, drug dependency, drug seeking behaviours, and interacting with and responding to the therapeutic concern of clients.

  Certificates for absence from work: Since the commencement of the FW Act in 2009 pharmacists have been able to provide certificates for absences from work due to illness. Pharmacists who undertake this service must undertake a detailed consultation with the patient to determine the nature of their illness, assess how long they will be unable to attend work, and determine whether it is necessary to refer the patient to a medical practitioner. Pharmacists must have extensive counselling skills and should have undertaken additional training in order to provide this service.

  Inoculations: The Pharmacy Board of the Australian Health Practitioner Regulation Agency (AHPRA) in December 2013 authorised pharmacists to administer vaccinations if they had obtained suitable additional training, and the States have since enacted legislation to facilitate this occurring. Pharmacists are required to have completed a further approved course of study, maintained their authority to immunise, and hold a current statement of proficiency in cardiopulmonary resuscitation and first aid including anaphylaxis training.

  Increase in use of complementary medicines and vitamins: The increase in the use of complementary medicines and use of vitamins has required pharmacists to have knowledge of these products, how they affect various illnesses and diseases and any negative side effects. Additional training is recommended in these medicines if it was not covered in the undergraduate degree.

[11] It was contended by the APESMA that the work environment of pharmacists had become more complex due to the following matters:

  Chronic disease: Chronic diseases such as arthritis, asthma, back problems, cancer, chronic obstructive pulmonary diseases, cardiovascular disease, diabetes and mental health conditions are the leading cause of illness, disability and death in Australia, and 39% of persons aged 45 and over have at least 2 of these diseases. Patients with such co-morbidities are high users of the health system, and half of them have conditions that result in treatment conflict. Pharmacists are involved in not just supplying medicines to such patients but ensuring that they get the best out of their medicines and their conditions are managed effectively. This requires pharmacists to exercise a specific set of clinical knowledge and skills not used back in 1998, as well as social pharmacy skills such as communication skills, inter-professional collaboration, understanding behaviour and understanding psycho-social attributes.

  Quality Care Pharmacy Program (QCPP): This quality assurance program was introduced by the PGA in 2000, and requires pharmacists in QCPP accredited pharmacies to undertake mandatory initial training, ongoing refresher training, implementing and following appropriate policies, ensuring there is evidence of practice in accordance with QCPP standards, and ensuring the pharmacy is prepared for re-assessment every 2 years. This imposes additional responsibilities on Pharmacy Managers in particular.

  Forward Pharmacy Model of Practice: This model of practice, adopted by almost all pharmacies since the introduction of the QUM, makes the pharmacist the main point of contact with patients, and requires pharmacists to exercise additional communication, counselling and customer skills not previously required of them.

  Workloads: There has been a significant increase in the number of PBS prescriptions dispensed within community pharmacies (at the rate of almost 13% per year over the last 10-15 years) without any corresponding increase in the number of pharmacies. This together with the ageing population, the consequential increase in the number of patients taking multiple medicines, and the new work tasks and skills required of pharmacists has contributed to an increasing workload and complexity of work for pharmacists.

[12] The APESMA also relied on changes to the educational and registration requirements for pharmacists. In respect of the former, the changes relied upon were:

  The phasing out from 2000 of the option of undertaking a three year undergraduate degree. The minimum accredited undergraduate pharmacy degree now requires four years of full-time study.

  Since 2010 the Australian Pharmacy Council has accredited a number of undergraduate degrees of more than the minimum four years’ duration which provide extended and more intensive training.

  Undergraduate degrees now cover areas of training not covered before 1998, in particular in relation to the counselling and education of patients in relation to the patient’s diagnosis, the reasons for prescribing, and the safe and effective use of the prescribed medicine included any potential adverse effects. This arose largely in response to the introduction of the QUM.

  In 2010, formal recognition was given to the higher qualification of Accredited Pharmacist. The holder of an accredited pharmacy undergraduate degree who is a registered pharmacist can obtain the qualification by undertaking a higher course of study, and the qualification allows a pharmacist to undertake HMRs.

[13] The changes in registration requirements identified by the APESMA were as follows:

  The requirements for intern pharmacists to obtain registration had changed since 1998, In 1998 intern pharmacists were required to have completed 1824 hours of supervised practice, but now in addition they have to undertake further study conducted by an approved provider and undertake an oral examination and a written examination conducted by the Pharmacy Board of Australia.

  On and from 2010 the Pharmacy Board has developed Compulsory Professional Development (CPD) requirements for pharmacists to maintain their registration, and the CPD options for further training have been changed and expanded.

  Competency standards for pharmacists were introduced in 1999 which were mainly focused on the safe dispensing of medicines, but which have since been expanded to cover matters such as inoculations, medical certificates and HMRs.

[14] In addition or in the alternative, the APESMA contended that its claim should be granted on the basis that flat-dollar increases to award wages had eroded the basis upon which the work value of pharmacists had originally been assessed, namely identified relativities with the C10 rate in the Metal Industry Award 1984 (now the Manufacturing Award), and that these relativities needed to be restored in order for the rates of pay to correctly reflect the work value of pharmacists.

[15] The APESMA’s claim was opposed by the PGA, Australian Business Industrial and the NSW Business Chamber (ABI/NSWBC), and Business SA. The PGA’s case in opposition to the APESMA’s claim was, in summary, as follows:

  The relevant datum point for the assessment of any change in work value was the making of the pre-reform Community Pharmacy Award 1998 on 24 December 1996, which was the last occasion when a federal industrial tribunal had determined the work value of pharmacists.

  The PGA accepted that the role of a pharmacist inherently involved change, as health services, treatment methods, medical information, community expectations, technology and procedures were changed or refined to better deliver health care services to the community.

  The PGA specifically acknowledged that elements of the competency standards and Bachelor of Pharmacy course had changed since 1998 to assist in the provision of better health care standards, that the provision of Government funded health service provided by pharmacists had been introduced to improve community health outcomes, and that community pharmacies had become more patient centred and focused on the delivery of primary health care to the community.

  However, the PGA contended that the resultant changes to the work of pharmacists had been evolutionary in nature but had not resulted in a significant net addition to the work value requirements of a pharmacist.

  The changes to the Bachelor of Pharmacy course content and duration commenced prior to the 1998 benchmark, were minor in nature, and did not contribute to a significant net addition to work value.

  Some changes to the competency standards had increased or altered the work value of some but not all pharmacist classification levels, but have not resulted in a significant net addition to work value.

  Pharmacists have always been engaged in continuing professional training, and the mandatory CPD requirements did not involve a significant net addition to work value.

  Pharmacists have since 1994 been required to achieve the competency standards for registration in their respective States and Territories, and so this did not represent a significant net addition to work value.

  The requirement to keep abreast of changes and developments is a requirement of a professional role and did not constitute any change in work value.

  The evolution in health care services required to achieve the community’s health care objectives has evolved since 1998 due to improved technology, research/medical information and treatment information, but these did not involve any significant net addition to work value. Patient interactions and clinical interventions had always been part of the pharmacist’s role.

  Both down-scheduling and up-scheduling of medicines occurred from time to time, but in any event the pharmacist had always needed to understand the nature, purpose and effect of those medicines and advise on managing conditions.

  Most of the changes relied upon by the APESMA did not involve genuinely new work, apart from perhaps inoculations, clozapine clinics and the provision of absence from work certificates.

  There had been no significant net addition in workload since 1998 in circumstances where the number of pharmacies had increased by 13% but the number of registered pharmacists had increased by 43%.

  Offsetting any changes was the fact that certain tasks were no longer done or were only performed in limited circumstances, such as compounding, and technology had simplified a number of tasks such as PBS claiming processes, automated scanning and dispensing of prescriptions, stock administration, dose administration and availability of patient information.

  HMRs and RMMRs fell within the core clinical skill set of a pharmacist, and only about 10% of pharmacists were accredited to perform these.

  It would be inappropriate to establish a new Accredited Pharmacist classification because the role was directly linked or related to several government-funded programs which might not continue, and instead the inclusion of a higher duties allowance should be considered.

  There was no demonstration by the APESMA on what the actual increases to work value were for each classification such as to justify the proposed increases to minimum rates, nor how the modern awards objective in s 134(1) would be achieved by the grant of the claim.

[16] ABI/NSWBC likewise contended that the changes relied upon by the APESMA did not satisfy the test for a significant net addition to work requirements to justify the wage increases sought, and that increases of that magnitude would not meet the modern awards objective and the minimum wages objective.

APESMA’s Evidence

[17] The APESMA relied on the evidence of the following expert and lay witnesses:

  Professor Ines Krass and Professor Parisa Aslani, who provided an experts’ report in two parts entitled “Work value of a community pharmacist” (Report); 2

  Professor Philip Clarke, who provided an expert’s report “providing data and information on aspects of pharmacy ownership, pharmacy revenues and business sale prices”;

  Dr Geoffrey March, President of Professional Pharmacists Australia;

  Ms Amy Thomson, Emergency Medicine Specialist Pharmacist and Specialist in Poisons Information in New South Wales;

  Mr Cameron Walls, Pharmacist Manager in Victoria;

  Ms Katerina Malakozis, Pharmacist in Charge in South Australia;

  Mr Cardin Le, Pharmacist in Charge in New South Wales;

  Mr Leon Wai Hon Yap, Clinical Hospital Pharmacist in Queensland;

  Ms Jennifer Ruth Madden, Locum Pharmacist in New South Wales;

  Ms Carmel McCallum, Locum Pharmacist in New South Wales; and

  Mr Alex Crowther, Surveys Manager of APESMA.

[18] The APESMA also tendered a large range of documents relevant to matters referred to by their witnesses. It will only be necessary for us to directly refer to some of the Community Pharmacy Agreements tendered by the APESMA.

Professor Krass and Professor Aslani

[19] Ines Krass is Professor of Pharmacy Practice at the University of Sydney, and Parisa Aslani is Associate Professor of Pharmacy Practice at the University of Sydney. The APESMA commissioned them to prepare the Report via a “Commissioned Research Brief” which contained as its research proposal “To investigate changes in work value of a community pharmacist comparing 1998 with 2016”. The brief noted that the Commission was undertaking a 4 yearly review of the Pharmacy Award, that the APESMA’s position was that the rate of pay received by pharmacists was not reflective of the work they do, that the current award minimum rates of pay do not reflect the skill, responsibility and complexity of the work they currently do, that the APESMA had lodged a claim seeking increases in the award rates of pay for pharmacists based on the proposition that there have been significant changes in work since 1998, and that it was necessary for the APESMA to adduce evidence addressing the relevant legislative provisions and demonstrating the facts supporting the proposed pay increases. The brief requested a literature review to identify changes in work value between 1998 and 2016 and semi-structured interviews with a sample of community pharmacists to explore their understanding and experiences of change in work value between 1998 and 2016.

[20] Professors Krass and Aslani prepared Part I of the Report, which was the requested literature review. They also prepared, with the assistance of Dr Vivien Tong, Part II of the Report, which was based on the requested semi-structured interviews. Professor Krass gave evidence before the Commission concerning the Report.

[21] The Preface to Part I of the Report discloses that the literature review was “conducted to explore the range and evidence for cognitive pharmaceutical services delivered by pharmacists in community settings”. The definition of “cognitive pharmaceutical services” (CPS) used was derived from one proposed for use in relation to professional pharmacy services as follows:

“A professional pharmacy service is an action or set of actions undertaken in or organised by a pharmacy, delivered by a pharmacist or other health practitioner, who applies their specialised health knowledge personally or via an intermediary, with a patient/client, population or other health professional, to optimise the process of care, with the aim to improve health outcomes and the value of healthcare.”

[22] The Preface went on to say that although the definition encompassed services which could be delivered by other health care professionals within a pharmacy setting, the focus of the Report was on the roles, responsibilities, and value of community pharmacists with respect to the provision of cognitive pharmaceutical services in community settings.

[23] The background to Part I of the Report included the following (omitting footnotes and references):

Facilitating quality use of medicines: evolution of community pharmacy practice in Australia

Pharmacists play a vital role in supporting QUM, one of the four key components of the National Medicines Policy, which denotes ensuring medication use by patients is judicious, appropriate, safe and efficacious. The National Competency Standards Framework for Pharmacists in Australia, published by the Pharmaceutical Society of Australia, is underpinned by the National Medicines Policy.

Community pharmacy contributes to the facilitation of quality use of medicines. With the emergence of the concept of pharmaceutical care, patient-centred care within pharmacy practice has gained momentum, challenging the traditional dispensing-oriented role of pharmacists. Evident expansion of the provision of cognitive pharmaceutical services (CPS), within the community pharmacy setting is occurring both nationally and internationally. Pharmacy practice in Australia has since undergone a significant paradigm shift over the last two decades.

Pharmacy education

Accredited pharmacy programs in Australia should deliver a curriculum which helps equip pharmacy graduates with the necessary foundation for commencement of the intern training program, and then to progress on to achieve the competencies set out in the national competency standards for pharmacists. When comparing the overall indicative pharmacy curriculum components in place in 2008 versus those currently implemented (effective from January 2014), several notable differences are evident, reflecting changes in pharmacy practice. Along with changes to pharmacy curricula and subsequent training to upskill graduates to ensure they are workforce-ready, pharmacists are now also required to engage in continuing professional development (CPD) throughout their careers. To be able to provide some of the remunerated CPS, pharmacists must also undertake further training to gain accreditation, in addition to any upskilling necessary to ensure that core professional competencies are maintained.”

[24] The Prelude went on to discuss “Government funding: supporting the viability of Australian community pharmacy” as follows (omitting footnotes and references);

“In Australia, 5-yearly Community Pharmacy Agreements (CPAs) commenced in 1990 between The Pharmacy Guild of Australia (PGA) and the Australian Federal Government, have secured funding to support community pharmacy initiatives in promoting QUM and the viability of the industry. Over the years, increased funding has been allocated to the provision of CPS in community pharmacy. While the Second CPA (2CPA) (1995- 2000) pledged a modest amount of funding of up to $4 million for CPS, the current Sixth CPA (6CPA) effectively saw a doubling of funds pledged compared to the previous CPA to facilitate remuneration for CPS provision, yielding:

  $613 million in funding to support community pharmacy programs, which comprise many cognitive pharmaceutical services,

  $50 million for the Pharmacy Trial Program, along with

  ‘access to additional funding of up to $600 million over the Term to support new and expanded Community Pharmacy Programmes’.”

[25] The Prelude identified that when the provision of CPS are remunerated, this usually occurred via fee-for-service from government, with most such remuneration being provided to the pharmacy/pharmacy owner. Some CPS, such as DAAs and vaccinations were paid by the user of the service. The overall majority of CPA funding however remained directly linked with the dispensing/supply of medicine products to patients via the PBS. PBS reforms and price disclosure, which were aimed to reduce PBS expenditure, along with a proliferation of discount pharmacy business models, had led to financial pressure across the community pharmacy sector. An increase in CPS provision had been identified as an additional revenue source. The UTS Pharmacy Barometer, an annual report issued since 2012, highlighted in 2016 that 59% of pharmacist respondent had reported beginning to provide new CPS in the last 12 months, and 80% of employer pharmacists were providing CPS. Further, the Pharmacy Guild Customers’ Experience Index reported approximately 80% of respondent customers listed at least one of the six services as being provided by their local pharmacy: blood pressure monitoring, weight management, diabetes screening and management, vaccinations, addiction intervention and mental health support, with blood pressure checks and vaccinations the most frequently reported to be used.

[26] In relation to remuneration of pharmacists, the UTS Pharmacy Barometer reported that employed pharmacists perceived an imbalance between wages and workload expectations, and also said that an oversupply of pharmacists was leading to lower wages and devaluing of the skills of the profession. Pharmacy employers also complained that low award rates allowed discount pharmacies to pay low wages, which placed competitive financial pressure on other pharmacies which sought to pay higher wages for good pharmacists. The UTS Pharmacy Barometer reported that 68% of employed pharmacist respondents had received no change to their remuneration over the last 12 months. Pharmacy owners reported that 75% of employed pharmacists were paid $30-$40 per hour, which was broadly consistent with the APESMA’s 2015 Remuneration Survey. This reflected that pharmacy owners were cutting salaries and reducing staff in order to compete with discount pharmacies. One study identified the view of Australian pharmacists as being that they “saw minimal opportunities to negotiate salaries” as they were easily replaceable with other pharmacists willing to work for lower remuneration. This position of reduced wages and the devaluation of the skills and the value of employee pharmacists was attributed to the oversupply of pharmacists. More than half of the respondents believed that pharmacists providing CPS should be more highly remunerated than those with dispensing-oriented roles, and there were some indications that there were increasing job opportunities for “professional services pharmacists” providing CPS.

[27] Part I of the Report identified the aims of the literature review as being to identify the range of CPS and health services delivered by community pharmacists, changes in services over the past 20 years, changes in policy, legislation and reimbursement, changes in professional expectations and guidelines, and pharmacists’ skills, knowledge and expected competencies reflecting educational changes in training at undergraduate, intern and postgraduate levels. The focus of the literature review was said to be “The evidence of benefits surrounding implemented CPS that are currently or have been previously remunerated as part of previous CPSs in the Australian context”.

[28] The Findings section of Part I of the Report identified in a table the present CPS provided in community pharmacies, and explained in each case the nature of the service provided, the skill or training required, the patient outcome benefits and the economic outcome benefits. The CPS so described were: Medication management reviews (HMRs and RMMRs); MedsCheck and Diabetes MedsCheck; Clinical Interventions; Medication Adherence Programs; DAAs; Staged Supply; Continued Dispensing; Continuity of Care, including through Community Pharmacy Liaison Services; Aboriginal and Torres Strait Islander (ATSI) QUM Service; Chronic Disease Management; Healthy Lifestyle Support; Smoking Cessation; Screening/Monitoring Activities (Health Checks); Compounding Services; Vaccination; Sleep Apnoea Services: Sexual Health Services: Mental Health Services: Palliative Care Services; Maternal and infant services; Wound Management; Advice on minor ailments; Provision of Pharmacist-Only (Schedule 3) medicines; Complementary and alternative medicine; Opioid Dependence Treatment; Return of Unwanted Medicines; and Absence from Work Certificates. The Report discussed studies which had analysed outcomes and the uptake of the identified CPS, noting that a number of them had not yet been the subject of substantial research evidence.

[29] The conclusions in Part I of the Report were, in summary, as follows:

  The roles and responsibilities of community pharmacists have expanded over the last 20 years, with a movement away from dispensing-oriented roles to increasing CPS provision in community settings.

  Fundamental responsibilities related to the dispensing and provision of therapeutic goods have provided a foundation upon which CPS can be expanded.

  Changes to legislation and funding in Australia have aided the facilitation of CPS provision and accessibility of these services to consumers in community settings.

  Pharmacists are now being remunerated for services for which funding was not previously available. Funding arrangements under the CPAs have formalised and refined pharmacists’ skills into distinct, targeted CPS.

  Each community pharmacist will likely provide multiple CPS as part of their practice of the profession and thus, increasing their work value (when considering that the evidence available for individual CPS to date is promising in terms of various different factors).

  In many instances, additional training is required to be completed by pharmacists in order to provide specific CPS interventions e.g. HMR accreditation, training to administer vaccinations, and other associated training to ensure professional standards and guidelines are met.

  With an ageing population and thus, potentially more complex medication regimens, medical conditions and potential disease burdens among the patient population, pharmacists’ diverse roles can help address the breadth of health and medication-related issues experienced.

  Each CPS provided by community pharmacists and/or in the community setting potentially contributes to improved patient health outcomes and/or economic outcomes for the health care system. Evidence from the literature also highlights the positive impact of CPS on clinical outcomes.

  There is also evidence to suggest that CPS provision is inclined to be cost-effective in many instances, which can yield savings from both the health care system and for patients as well. However, further research is still required to better ascertain the cost-effectiveness of CPS provided by community pharmacies from the perspectives of the health care system, patients, and also from the service providers where possible.

  To better determine the impact of currently implemented CPS within the Australian context, further Australian health and economic outcomes evaluations are necessary to more adequately determine the current work value of Australian pharmacists based in community settings. This will help to ensure that cost savings to the health care system are being appropriately invested back into remunerating pharmacists who provide these valuable services.

  Additional full economic evaluations are required within the Australian context to establish the extent of cost saving that CPS provide to the health care system. Evidence from the systematic reviews included in this review provide evidence to support the expanding role of community pharmacists and reinforces the need to ensure the implementation and expansion of evidence-based, value-added CPS.

[30] The objectives of Part II of the Report were set out as follows:

  to investigate and describe the cognitive pharmaceutical / health services currently provided by community pharmacists;

  to determine the reimbursement / revenue received by community pharmacists for the delivery of cognitive pharmaceutical / health services in their practice;

  to determine the self-reported patient health and economic outcomes of the cognitive pharmaceutical / health services delivered by the pharmacists;

  to determine the self-reported health system economic outcomes of the cognitive pharmaceutical / health services delivered by the pharmacists; and

  to investigate the training received by the pharmacists in delivering the cognitive pharmaceutical / health services.

[31] Part II of the Report was prepared by inviting a random sample of pharmacists in the APESMA’s database to participate, and also by purposive sampling of pharmacists who were known to the research team as engaging in the provision of CPS, with variation sampling to capture pharmacists from a range of ages, years of practice, practice settings, cultural backgrounds and employee/employer status as well as to ensure gender representation. A total of 25 interviews were conducted, of which 14 were face-to-face and 11 by telephone.

[32] The key conclusions reached in Part II of the Report from the interviews may be summarised as follows:

  pharmacists perceived that a core set of services were applicable across the sector, but that the actual services provided varied between pharmacies with smaller pharmacies having to structure and prioritise service provision;

  additional support by way of an increased number of pharmacists and other staff enabled the provision of CPS;

  the role and responsibilities of pharmacists differed in terms of services provided;

  the core 6CPA-funded services reported as being delivered in community pharmacies included DAAs, HMRs, MedsChecks/Diabetes MedsChecks, clinical interventions and stage supply;

  pharmacists were responsible for checking DAAs, where DAAs were seen to facilitate improved patient adherence to medicines and QUM;

  MedsChecks allowed pharmacists to assess patients’ understanding and use of their medicines, and were seen as a timely way to identify and address medication-related problems;

  HMRs enabled a detailed assessment and recommendations to be provided on a patient’s medication regimen, and positive feedback received on HMRs and the implementation of recommendations were reported;

  clinical interventions encompassed a broad range of potential medication-related problems, and were primarily viewed as a change in the documentation process rather than a change in practice;

  non-6CPA CPS that were more commonly reported as being provided included point-of-care testing such as blood pressure/cardiovascular disease and/or blood glucose checks, pharmacist-delivered immunisation, and opioid substitution therapy;

  a range of other CPS were also reported including other point-of-care testing services, services provided to aged care and related facilities, chronic disease management (with and/or without diagnosis) and medication-oriented services;

  flu vaccinations were associated with a number of perceived benefits such as improved accessibility and uptake of flu vaccinations, increased convenience and perceived cost-effectiveness, and professional satisfaction;

  the most ubiquitous free service for patients was blood pressure checks; pharmacist involvement in these checks varied between pharmacies but pharmacists were involved at some point in the process, particularly in interpreting blood pressure readings;

  sleep apnoea diagnostic services were offered by some pharmacies;

  services provided to facilities such as aged care facilities commonly centred on DAA provision for residents;

  training varied significantly between undergraduate training, self-directed learning and completion of accredited training courses;

  accreditation courses were more likely completed for pharmacist-led immunisation, HMRs, and compounding;

  non-specific training typically included training received from company representatives and/or self-directed learning;

  financial support received for training undertaken by pharmacists varied; the most common course that was financially covered by employers was pharmacist-led immunisation training, but training opportunities received by staff potentially varied depending on their role within the pharmacy;

  reimbursements received for CPS varied; services typically provided at a charge to the patient included flu vaccinations, opioid substitution therapy, diagnostic testing of sleep apnoea, and absence from work certificates, while the common CPS offered free of charge to patients was blood pressure/cardiovascular disease checks;

  contributions for DAAs together with the funding received from the 6CPA was still regarded as insufficient to cover the costs involved in providing the service;

  a few participants noted that they had to decrease the fee-for-service for pharmacist-led vaccinations due to increased competition;

  pharmacists were cognisant of the notion that fee-for-service, although desired, should not act as a barrier for service uptake among patients, and user-pay funding models were not deemed appropriate for all CPS such as blood pressure checks;

  encouraging customer loyalty and maintaining rapport with other service users (such as aged care facilities) were motives for providing services for ‘free’;

  perceived benefits of CPS included improved patient accessibility to services and convenience, cost-effective facilitation of QUM, improved patient adherence, satisfaction, and loyalty, and improved patient rapport, health management, patient education and empowerment; however, it was noted that it was difficult to determine the true impact of CPS;

  reimbursement received by pharmacists for the provision of CPS was regarded as insufficient;

  CPS provision contributed to the need for increased wage costs for the pharmacy such as by employing an additional pharmacist, which were then offset via earnings from other aspects of the pharmacy such as the dispensing of prescriptions and/or sale of consumables;

  the perceived viability of community pharmacies had been impacted by PBS reforms;

  services were not regarded as a primary source of stand-alone income for pharmacies but rather, had flow-on effects for other aspects of the business which contributed to profitability;

  pharmacists had seen and experienced an evident expansion of services being provided in community pharmacies, and a certain level of service provision had become the status quo across the sector;

  an increased scope of practice for pharmacists has led to perceived opportunities for further role expansion in future;

  the quality of services might not be uniform across all community pharmacies;

  pharmacists’ roles and responsibilities have changed, where there were now increased opportunities for clinical involvement and inter-professional collaboration in the provision of patient health care;

  reforms such as accelerated price disclosure and emergence of discount pharmacy models of pharmacy have impacted the sector, and created an impetus for the industry to evolve, so that sole reliance on pharmacy as a supply function was no longer viable;

  decreased revenue generated from dispensing prescriptions had led to increased service provision, used as a point of difference;

  perceived positive changes to the profession included the impact of increased competition leading to innovation and increased CPS remuneration via the 6CPA;

  perceived negative changes to the profession included the price-focused paradigm shift impacting the fee-for-service sought, decreased viability of community pharmacy, and the devaluing of pharmacy due to discount pharmacies and price reductions;

  the core work value of community pharmacists centred on accessibility of health care and advice, and the resultant broader impact on the community;

  pharmacists were perceived to be undervalued by others, influenced by discount pharmacies, and it was perceived that governments should better recognise the value of, and appropriately remunerate, pharmacists;

  a positive outlook on pharmacy stimulated support for increased scope of practice as well as ongoing provision of CPS;

  continued engagement in providing CPS by pharmacists was primarily motivated by patient satisfaction, professional satisfaction, view of the optimal direction towards which pharmacy should be heading, altruism, wanting to provide a service to the community to promote health, and duty of care;

  the service-oriented ethos of the community pharmacy or positive professional experiences involving senior members of the profession contributed to the service-oriented practice of several participants;

  external factors such as decreased profit margins for dispensing medicines and that other pharmacies were also offering services were also motivators for CPS provision;

  pharmacists recognised that there was limited profit earned for many CPS, and pharmacy proprietors noted that many services were being operated at a loss to the pharmacy;

  as pharmacist roles were perceived as having expanded, there was support for recognition of this expansion both professionally and financially;

  the government was seen as an important stakeholder in facilitating the increased remuneration of pharmacists;

  in general, employee pharmacists did not receive additional reimbursements for delivering services within the community pharmacy on top of their wages;

  some pharmacists felt that their wage received as an employee pharmacist was inadequate and did not reflect their knowledge, skills and contribution to health care; and

  a multitude of factors were acknowledged as impacting on pharmacist wage levels; several pharmacists reported negotiating their wage level, and believed that the onus was on the pharmacist to demonstrate their value to their employer and to negotiate their wage accordingly.

[33] The authors of Part II of the Report concluded that because the provision of professional services had become part of the status quo for the practice of the profession, “[t]his change indicates that there has also been a likely shift in the work value of community pharmacists”. In cross-examination Professor Krass affirmed this conclusion, saying:

“… I think the notion is that we were coming from the understanding is that the salary levels have not changed; in fact they have declined as I understand it.  They have declined very significantly, and yet pharmacists are being expected to do more.  The scope of their activities, the skill required to actually execute those activities has increased and changed over time, and that has not been reflected in the remuneration that they've received, and I would argue beyond that, if I might indulge you, that the community pharmacy agreements have delivered remuneration directly to the community pharmacy, but there's been no commensurate payment to the pharmacists themselves.  So the employee pharmacists have been expected to do that – to expand the range of activities that they deliver, but that has not been reflected in any change to their salaries.

When you say you would argue you're advocating that as a position or are you advocating that as the outcome of the semi-structured interviews?---That's what I found out from the interviews, yes.” 3

Professor Clarke

[34] Professor Philip Miles Clarke is Professor in Health Economics within the Centre for Health Policy at the Melbourne School of Population and Global Health in the University of Melbourne. He was commissioned by the APESMA via a research brief to provide a report on the current financial status of the community pharmacy industry covering: changes in the income received from government by community pharmacies since the late 1990s; any increases or reductions in remuneration received and the reasons for these changes; the profitability, or otherwise, of community pharmacies within Australia and an analysis of the reasons for their profitability; and whether a work value increase in the minimum rates of pay specified in the Pharmacy Award as proposed by the APESMA would have a significant negative impact on the financial sustainability of community pharmacies.

[35] In his report, 4 Professor Clarke explained the regulatory framework in which community pharmacies operated. They are protected from competition by two sets of government regulations that form part of the Community Pharmacy Agreement, which is negotiated every five years between the Federal Government and the PGA and regulates most aspects of the pharmacy sector. The CPA provides for ownership rules which disallow non-pharmacists from owning a pharmacy in Australia and effectively prevent supermarkets and international pharmacy chains from owning pharmacies in Australia, while location rules restrict the establishment of new pharmacies within regulated distances (typically 1 kilometres). Professor Clarke gave evidence that the ownership and location rule restrictions have prevented new entrants into the pharmaceutical sector, in that the number of pharmacies in Australia has remained relatively static for almost 50 years, over which period the number of medical practitioners had more than doubled. The result was that ratio of the number of persons per pharmacy had increased from around 2000 to 4000.

[36] In relation to pharmacy revenues, Professor Clarke referred to a performance audit of the administration of the Fifth CPA by the Australian National Audit Office (ANAO), which quantified the remuneration received by pharmacies from the Commonwealth Government for dispensing and mark-ups. The audit found that payments received by pharmacies from the Government had tripled from around $750 million in 1991 to over $2 billion by 2013, even after adjusting for inflation. Professor Clarke said that this growth in remuneration is due to much higher volumes of dispensing as a result of a combination of population increase, ageing, and expanded prescribing from newer classes of drugs. In addition to increases in the dispensing fees paid to pharmacists, government payments were now around 20% higher in real terms than in the early 1990s due to greater pharmacy remuneration form mark-ups.

[37] Professor Clarke outlined the findings of the ANAO report that more than 18% of pharmacies in Australia receive more than $1 million in remuneration from dispensing drugs listed on the PBS, with 140 more pharmacies moving into the top-earning bracket when the 2012 and 2013 financial years were compared. He stated that the high profitability of established pharmacies meant that business sale prices were very high, with the cost of inner-city and suburban pharmacies running into millions of dollars. These prices locked out many pharmacy graduates from ever owning their own business due to inflated business prices, and also mean that new entrants are saddled with levels of debt that turn what should be profitable businesses into marginal ones. Professor Clarke gave evidence that this creates a cycle of rent seeking: the ownership and location rules protect existing owners, forcing the next generation of owners to buy their businesses at inflated prices and thus seek ever more protection from competition in order to be profitable or even viable.

[38] In cross-examination, Professor Clarke acknowledged that not all pharmacies are part of the PBS (which is the scheme under which pharmacies are remunerated by the Government for dispensing scripts for scheduled medicines). He accepted that the practice of simplified price disclosure has reduced the benefits that pharmacies were getting, beyond the standard remuneration. Professor Clarke clarified that whilst the location and number of pharmacies in Australia is currently frozen, the number of pharmacists operating within the pharmacies has increased. However it remained the case that the pharmacist to population ratio is falling. Professor Clarke was of the view that this affected the labour market bargaining power of pharmacists, in that if employment opportunities for employed pharmacists are supressed by restricting the number of pharmacies, this may impact on the price of a pharmacist’s labour. Alternatively, in the presence of a monopoly, or some degree of monopoly by the employer, the bargaining powers change and that places downward pressure on wages of pharmacists. He stated that ultimately, the impact of the regulatory restrictions on the labour market would be determined by demand and supply factors.

[39] Professor Clarke conceded that the available data concerning the profitability of pharmacies is imperfect and is ultimately based on averages rather than looking at the specific profitability of individual pharmacies. He acknowledged that not all pharmacies would be highly profitable and highlighted the lack of good public data in relation to the profitability of pharmacies. However the rules and restrictions applicable to pharmacies provide a regulated operating environment that protects existing pharmacy owners. There is a significant spread of remuneration to pharmacies from dispensing drugs listed in the ANAO report with only 18% being in the top income bracket, and an increase to wages could affect low-income pharmacies, and in turn have consequences for the employment of pharmacists.

Dr Geoffrey March

[40] Dr Geoffrey March is the President of Professional Pharmacists Australia, a division of the APESMA, and is also a National Assembly member of the APESMA. He has held various academic and professional appointments throughout his career, including as a Lecturer at the School of Pharmacy and Medical Sciences at the University of South Australia until his retirement in 2016. He was a registered pharmacist from 1977 until he retired from the profession in 2016, and worked as a practising pharmacist until 1997.

[41] He provided two statements in support of the claim. In his first statement dated 10 December 2017, 5 Dr March referred to his period of practice as a pharmacist, and said that when he commenced practice as an intern in 1976, he was ethically prevented from discussing or describing medication to patients, and his training and practice involved a focus on the drug itself, how it worked, dosages and formulation. He was not trained to appreciate consumer wants, desires or needs, and it was expected that the consumer would accept his directions.

[42] Dr March described a process of policy reform commencing in 1987 when the World Health Organisation issued a resolution calling upon all member countries to develop a national medicinal drug policy. In 1988 the Australian Government committed itself to the establishment of such a policy. The Australian Pharmaceutical Advisory Council (APAC) was subsequently established as a multi-disciplinary representative body, and in 2000 it published the National Medicines Policy. The QUM strategy was also introduced in conjunction with the policy in 2000. A second committee established by the Australian Government, the Pharmaceutical Health and Rational Use of Medicines (PHARM) committee, also provided advice to the Minister and Department for Health and Ageing concerning strategies for the QUM in Australia.

[43] In line with the principles of the National Medicines Policy, the strategy for achieving QUM was based on a partnership approach, in which a “medication team” consisting of consumers, doctors, pharmacists and nurses who each have a role to play in ensuring the medicines are used wisely in an environment that both supports and is conducive to the QUM. The strategy was implemented by pharmacists in a number of ways, including in interactions with individuals patients, community groups and organisations.

[44] Dr March gave evidence that he was part of a research team that investigated the development and implementation of a pharmacy practice based on the philosophy of pharmaceutical care as the QUM strategy where pharmacists in collaboration with the consumer and the consumer’s medical practitioner worked to identify and resolve medication-related problems. One outcome of this research was the implementation of the HMR program, firstly in aged care facilities and eventually in the community.

[45] Dr March considered that the developments he described caused the “practice paradigm” in the pharmacy profession to change from pharmacists dispensing medication for a medical condition to a focus on the person suffering from a medical condition for which medication may or may not be appropriate. In terms of the University education of pharmacists, it was no longer sufficient for pharmacists to be trained only in all aspects of medicines including their formulation and action on the body. They also needed the ability to apply that knowledge through the use of “soft” skills - for example, by effective communication with customers and collaboration with other health professionals. New courses were added to the pharmacy curriculum to teach students the necessary skills to become patient care practitioners. These “Applied Therapeutics” courses covered topics such as pharmacists’ roles and responsibilities; understanding the health system; the role of standards, guidelines and ethics in practice; communication theory and skills development; cultural sensitivity; behavioural theory and application; problem solving skills including the basis of the pharmaceutical care model; inter-professional learning and collaboration; literature researching and critical evaluation skills to facilitate access to independent information; and understanding the roles and responsibilities of various professional bodies.

[46] By the time of his retirement in 2016, Dr March stated, pharmacy students were being taught to accept responsibility for the outcomes of the prescriptions and over-the-counter medicines they were dispensing by being able to effectively communicate with customers, exploring behavioural strategies to assist consumers in changing behaviours, developing the skill to identify and resolve medication related problems, and communicating effectively with other health professions. These changes in the curriculum preceded changes in practice in the community setting, so that as at 2000 relatively few pharmacies had established a practice involving medication review and it was a challenge to find pharmacists who were beginning to practice in a more patient-centred manner or providing specific patient care services or student placements.

[47] Dr March also described the commencement of the accreditation of pharmacy programs in 1998 with the creation of the New Zealand and Australian Pharmacy Schools Accreditation Committee. The latest Accreditation Standards introduced in 2014 include a learning domain relating to the health consumer, which was an acknowledgement of the supremacy of the consumer in practice.

[48] In his reply statement dated 30 April 2018, 6 Dr March further detailed the changes in education as a result of adopting a more patient-centric approach. He said that the new patient-centred approach started to be implemented partially in universities in around 1998 and was rolled out in the following few years. In a formal sense patient-centred care became a core part of practice with the National Medicines Policy in 2000. QUM was at the heart of the policy, and it emphasised: selecting management options wisely; choosing suitable medicines; using medicines safely and effectively; greater engagement with the patient; understanding the health-care system and inter-professional learning and collaboration; making more complex judgments in applying standards, guidelines and ethics’ communication theory and skills development, cultural sensitivity, behavioural theory and application, and problem-solving skills; and literature research and critical evaluation skills. Dr March set out that pharmacists were now required to engage on a higher level with patients and were not only required to consider the impact of medication on patients, but also matters such as the availability of other therapies, and costs for the individual, the community and the health system as a whole.

[49] In terms of the impact of the proposed variation on collective bargaining within the pharmacy industry, Dr March stated that, with the exception of one chain of pharmacies, no other community pharmacies have consistently entered into enterprise agreements. He noted that the majority of community pharmacies are geographically diverse and have fewer than 20 employees. He stated that this made it difficult to commence bargaining with these pharmacies.

Amy Thomson

[50] Amy Thomson 7 is an Emergency Medicine Specialist Pharmacist employed by NSW Health at the Mona Vale Hospital NSW and a Specialist in Poisons Information at the NSW Poisons Information Centre at The Children’s Hospital Westmead. She is currently classified as a Pharmacist Grade 3 at Mona Vale and a Pharmacist Grade 2 at NSW Poisons Information Centre.

[51] Ms Thomson stated that her duties as an Emergency Medicine Specialist include:

  the provision and development of clinical pharmacy services;

  obtaining detailed medical histories from patients;

  undertaking medication reviews;

  preparing pharmaceutical care plans;

  providing information to nursing and medical staff on relevant aspects of drug usage and availability; and

  strategic planning for the pharmacy department.

[52] In relation to her appointment as a Specialist in Poisons Information, Ms Thomson stated her main responsibilities include:

  the assessment of patients exposed to various toxins and advice on treatment;

  advising on the treatment of bites and stings and on the side effects and interactions of medications; and

  answering general queries relating to poisoning, pesticides and chemical safety.

[53] Ms Thomson was awarded a Bachelor of Pharmacy at Sydney University in 2010. She described in detail the content of her undergraduate course, which she said had a focus on the quality use of medicines and how to improve patient outcomes. Relevantly, students were taught how to perform professional services and to integrate into the health care team, why pharmacists as experts were essential to the health care team, and how best to communicate to patients and doctors to improve patient outcomes. As examples of training in this area, Ms Thomson said she did a laboratory exercise about the appropriate use of amitriptyline for different patient groups, particularly the elderly; participated in role plays communicating key health messages to the general public; and learnt how to communicate with medical prescribers.

[54] Following the completion of her degree, Ms Thomson obtained provisional registration with the Pharmacy Board of Australian Health Practitioner Regulation Agency (AHPRA). Ms Thomson set out that for her intern year she was required to complete 1824 hours of supervised practice, make and complete a training plan including obtaining 40 CPD points, undertake a written and an oral examination (with an overall pass mark of 65%), and complete the University of Queensland Pharmacy intern training course. The written examination included areas such as professional and ethical practice, the supply of prescribed medicines, the preparation of pharmaceutical products, and the delivering of primary and preventative health care. There was also a role play element based on a scenario where a patient presented a script for a medication, under questioning disclosed she had a history of seizures, and contact had to be made with the prescriber to recommend alternate treatment. Skills taught in her intern year included detecting, diagnosing and treating minor ailments, detecting more serious conditions, when to refer patients to another professional and how to treat the more serious condition.

Cameron Walls

[55] Cameron Walls 8 is a Pharmacist Manager at a pharmacy in Wodonga, Victoria. He completed his degree in pharmacy at Charles Sturt University in 2009, and gained full registration as a pharmacist in 2011. He worked in two other pharmacies before his current position. He is classified as a Pharmacist Manager under the Pharmacy Award. He is paid $44 per hour Monday-Friday, $55 per hour for Saturdays and overtime, and $65 per hour on Sundays.

[56] In addition to managing the business, Mr Walls undertakes duties providing prescriptions and medicines (typically dispensing 130-150 prescriptions per day), and performing services such as providing medical leave certificates, in-Pharmacy medication reviews, supervision of daily medication collection, screening and provision of sleep apnoea treatments and weight management consultations, and ensuring the pharmacy operates within the relevant legal framework and professional standards. He is required to supervise or be involved in the supply of Schedule 2 and Schedule 3 pharmacy-only medicines where the patient does not require a prescription. It is necessary form him to ensure that such medicines are safe for the person taking, by considering their medical conditions, other medications they are taking, their age and gender and any other relevant information; it is also necessary for him to make sure that the treatment is likely to be effective, considering the nature and severity of the condition, the treatment options and, when required, to recommend an alternative treatment or make a referral to an alternative healthcare provider.

[57] Mr Walls also gave evidence that his duties now increasingly involve the provision of “professional services” which do not necessarily involve the sale of medicines or products. These include such services as:

  pharmacist vaccinations;

  providing medical leave certificates;

  opioid replacement therapy;

  dose administration aids;

  staged supply;

  clinical interventions;

  sleep apnoea screening and treatment;

  weight loss programs;

  in-pharmacy medication reviews (MedsCheck and Diabetes MedsCheck);

  HMRs; and

  blood pressure, blood glucose and cholesterol screening.

[58] He stated that with the exception of vaccinations and HMRs, he had personally provided all of these services, and that that many of these professional services required training and accreditation in addition to his pharmacy degree. He set out that he had received specific training to provide opioid replacement therapy in accordance with Victorian legislation, sleep apnoea screening and treatment, and a specific weight loss program.

[59] In addition, Mr Walls stated that as a Pharmacist Manager, he had developed skills in human resourcing, stock control, and financial analysis. He stated that his pharmacy degree did not provide him with these skills nor had he received any formal training from his employer. Finally, Mr Walls set out that increasingly, the responsibility of managing pharmacies is being undertaken by pharmacists who do not have ownership of the pharmacy, and that the training of interns is now falling on employees within the pharmacy, rather than the owner of the pharmacy. In that connection he has taken on the role of Preceptor, which involves supervising the learning and competence of an intern pharmacist during their registration year.

[60] Mr Walls also referred to the introduction of compulsory CPD and learning plans, which has occurred since the graduated. This had increased the burden of work in terms of documenting his learning activities, and all CPD activities had to be done in his own time and at his own expense.

Katerina Malakozis

[61] Ms Katerina Malakozis 9 is employed as Pharmacist in Charge at National Pharmacies in Adelaide, and is paid $48.51 per hour. She gained full registration as a pharmacist in 1989, and has been employed since then in a range of pharmacies. Her responsibilities extend from managing all employees of the pharmacy and ensuring they have proper training, dispensing prescriptions and checking compatibility with other medications, counselling patients concerning how to take their medications and how they work and what to expect from them, performing MedsChecks, administering influenza inoculations, supplying Pharmacist Only Medicine, issuing absence from work certificates, supplying and packing DAAs, providing health information to patients, taking back and disposing of unwanted medicines, operating diabetes assistance functions under the National Diabetes Supply Scheme, acting as Preceptor for interns, and ensuring the safe storage of medicines and providing advice about this.

[62] Ms Malakozis gave evidence that during her period of employment as a pharmacist she had experienced a “dramatic change” in procedures and processes and in her work. At the commencement of her career in 1989/90, the main tasks she performed related to dispensing medication and providing information surrounding prescriptions. The prescriptions also had to be collated and missing scripts identified and removed from the claim, and then sent to Department of Health for payment. These tasks were now performed by dispensary technicians, but the pharmacist still needed to check the claim and personally sign it off. Today, Ms Malakozis said, there was much more work in her daily tasks. Increasingly the general public would seek medical advice from pharmacists rather than from their general practitioner. She stated that pharmacists had become more accessible and now offered services such as providing medical leave certificates, administering vaccinations, providing codeine products, and providing advice in respect of both minor and major health concerns (which often required referral to a GP). Ms Malakozis set out that there is a greater demand by the community to have a pharmacist deal with their health issues before they go to the doctor. Customers also sought advice on weight loss and the use of complementary medicines, and may want their blood pressure, blood sugar and/or cholesterol checked. Other interactions with customers included assistance with medication packs, dealing with requests to get expired scripts renewed, advice about generic medications and dealing with medications that are out of stock.

[63] Ms Malakozis said that she typically was involved in the dispensing of 250-350 prescriptions per day, along with constant requests for advice. All products dispensed were scanned using a Medicare/drug scanner to ensure minimal mistakes, and during this time it was necessary to record customer interactions, review customer history and offer advice and MedsChecks. It may also be necessary to administer first aid, deal with a customer in crisis, contact a GP about a prescription and check PBS claims. She also had the management responsibility to ensure staff complied with the new Professional Practice Standards and Code of Ethics. Generally, the scope of regulation of the profession requiring compliance had significantly expanded, including the introduction of mandatory CPD. The downscheduling of medication, which had increased the number of pharmacy-only medicines, had increased the workload.

[64] Mr Malakozis’ employment was covered by an enterprise agreement, with National Pharmacies having entered into a series of enterprise agreements over 20 years. The current agreement provided for study leave and assisted in contributing towards accreditation of pharmacists to perform HMRs.

Cardin Le

[65] Cardin Le 10 is currently employed as a Pharmacist in Charge at a pharmacy in Wagga Wagga, at which he is paid $37 per hour for ordinary hours, $45 per hour on Saturdays and $50 per hour on Sundays and public holidays. He graduated at Charles Sturt University in 2009 and gained full registration as a pharmacist in 2011. His current duties include rostering pharmacists, dispensary management, stock orders and control, inventory, compounding non-manufactured medicines, and reporting to owners. He stated that during his time working as a pharmacist, he had observed a number of changes to the profession. Mr Le said that the profession had evolved from predominately dispensing medicines and administration to an increased demand for professional services. The services included counselling patients, daily staged supply of methadone to assist with the elimination of drug addiction, providing vaccinations, medications reviews, and QUM.

[66] Mr Le stated that an ordinary day involved dispensing approximately 250 or more scripts, checking Webster packs (a type of DAA), providing consultations for, on average, 20 walk-in patients per day regarding minor health advice or pharmacist only medicine requests, conducting medication reviews and administer walk-in vaccinations.

[67] Mr Le’s evidence was that the demographic of the pharmacy in a rural area was significantly different from other pharmacies in that there is diversity in age, ethnic backgrounds and socio-economic circumstances. Dealing with patients with special requirements, such as ones who spoke limited English, in combination with dispensing their prescriptions and managing the supervision of staff, whilst other customers were left waiting, caused pressure in the role particularly when Mr Le was the sole pharmacist on duty. Mr Le stated that there may be the need to dispense between 250 and 350 scrips during an eight hour shift, some being more complicated than others, and requiring the provision of particular advice to customers.

[68] Mr Le emphasised that there was a significant amount of new work in the role not previously undertaken by pharmacists, compared to when he had commenced practising in 2011. This new work included administering vaccinations, the impact of QUM, down-scheduling of medicines, and the administration of medication to an ageing population. Accordingly, Mr Le stated that there is more work and pressure on pharmacists without any additional remuneration. The evidence was that often prescription choices made it necessary to exercise judgement and skill in relation to the suite of appropriate medication.

[69] In addition he stated that since the completion of the undergraduate degree, further training has had to be undertaken to perform many of the newly required pharmacy services. The further training included training for vaccinations, medication reviews, and down-scheduling of drugs.

Leon Wai Hon Yap

[70] Leon Wai Hon Yap 11 is employed as a Clinical Hospital Pharmacist at the Gold Coast Health and Hospital Service. He completed a Bachelor of Pharmacy at the University of Queensland in 1998, and gained full registration as a pharmacist with the Pharmacy Board in 1999. Mr Yap’s employment is classified as a Health Professional Level 3 Paypoint 6 at $45.40 per hour under the Health Practitioners and Dental Officers (Queensland Health) Award - State 2015, a Queensland state award. Prior to his current position, he worked in community pharmacies from 1999 until 2016. In his last pharmacy in 2016 he was paid $35 per hour Monday-Friday and $40 per hour on Saturdays.

[71] He set out that during his career he had seen changes in both the way he performed his work and the types of work performed. Mr Yap stated that whilst at university from 1996 to 1998, the curriculum focussed on the pharmacology of medicines, basic human anatomy, human physiology, basic medicine compounding, the science behind medicine design and delivery systems, prescription legalities, dispensing, patient counselling, and over the counter prescribing.

[72] Mr Yap stated that in 1999, to satisfy the requirements to be eligible for registration in Queensland as a pharmacist, he was required to complete an open book written exam and to complete 48 weeks of supervised practice. He stated that the exam covered topics such pharmacy law and ethics, pharmacological questions, and pharmacy practice questions. His first job as a pharmacist consisted of serving customers with minor ailments, receiving prescriptions from customers, interpreting and dispensing prescriptions, explaining to customers how to use medications, and providing over the counter medications to treat minor ailments, limited to conditions such as colds and flu, minor aches and pain, hay fever and minor skin irritations. Other duties included collating prescriptions for reimbursement by the government under the PBS, ordering stock and placing stock on the shelves. He provided customers with over-the-counter medicines, but the quantity and variety of these was much smaller than today. The minor ailments he diagnosed and treated were limited to conditions such as colds and flu, minor aches and pains, hay fever and minor skin irritations.

[73] Mr Yap outlined the responsibilities of contemporary pharmacists, and stated that pharmacists were now required to be trained and competent to diagnose, treat, or to decide when to refer a patient to a doctor for, a much wider range of conditions. These new duties related to “bacterial conjunctivitis (Chloramphenicol), Nausea related to migraine (Metoclopramide and Prochlorperazine), medicated weight loss treatments (Orlistat), provision of Proton pump inhibitors (PPI' s) for the treatment of Gastroesophageal Reflux Disease ( GORD ), assessing the requirement for and providing nasal decongestants facilitated with the use of Project Stop, providing Emergency Contraception (the morning after pill), oral antiviral treatments for cold sores (Famciclovir), oral treatments for vaginal thrush (fluconazole) and the provision of Naloxone for the emergency treatment of acute opioid overdose.

[74] Furthermore, he stated that the provision of Emergency Contraception required pharmacists to be able to determine not only that the product will be appropriate, safe and effective for the particular patient but also to be able to assess and assist in cases where the patient may be underage or there is the possibility that a sexual assault has taken place. He stated that this may require specialist knowledge of local sexual health clinics, sexual assault services as well as the requirements for mandatory reporting of suspected cases of child sexual abuse. Pharmacists also now had to operate a screening and recording database (Project Stop) established by the PGA to facilitate the supply of nasal decongestant products containing pseudoephedrine.

[75] Mr Yap said that the dispensing process had become “slightly faster” due to improved technology and better software, but his patients had increased requirements to assess the appropriateness of a treatment due to the higher prevalence of type 2 diabetes, heart disease, neurological conditions, autoimmune diseases, and the increasing complexity of the medicines used to treat these conditions. He stated that this had resulted in more complex and comprehensive patient counselling, in order to better educate patients on the medicines they are taking. He stated that this was in addition to the demands of patients who were generally becoming more interested in their health and medicines and requesting more information about medicines. The introduction of Quality Standards as part of the QCPP from around 2000-1 onwards placed a greater burden on the pharmacist in charge or pharmacist manager, who usually undertakes the role of QCPP standards coordinator. The introduction of dose administration aids, which occurred since Mr Yap became registered, was an important but time consuming and mentally challenging service. Creating a DAA involved repacking a person’s dispensed medicine into a single disposable 7-day blister pack that sets out a person’s medicines in an easy-to-red and accessible way. The role of packing DAAs is often carried out by pharmacy assistants, although in smaller pharmacies it may be carried out by the pharmacist, but they always need to be checked for accuracy by the pharmacist. The number of persons on opioid replacement had increased in Mr Yap’s experience from 5-19 to 20-40, the legal requirements for dispensing opioid had become more explicit and the types of opioid replacement had increased. Each patient who presents to the pharmacy for opioid replacement has to be identified and assessed as to whether they are able to be dosed, and the pharmacist must then measure out the dose, provide it, watch it being consumed and make sure it is not diverted. In addition, a range of recording requirements must be carried out.

[76] Mr Yap stated that with the establishment of the Pharmacy Board of AHPRA in around 2000, pharmacists are now required to complete a certain amount of hours of CPD. For the most part, this learning had to be done in the pharmacist’s own time and very rarely were pharmacists paid to undertake this learning.

[77] He also referred to the advent of professional services now being provided by community pharmacies. These professional services included HMRs, MedsChecks and Diabetes MedsChecks, and in the case of one pharmacy where Mr Yap was employed, a Clozapine clinic. In order to provide HMRs, a pharmacist had to obtain accreditation, which involved either a face-to-face workshop or online preparatory course, the completion of a communication module, a multiple choice examination and the completion of four case studies by correspondence. In respect of HMRs, a portion of the money the pharmacy receives from the federal government, through 6CPA funding for this service is passed on to the pharmacist. In the case of MedsChecks and Diabetes MedsChecks, he stated that very rarely was any of the money that the pharmacy received as part of 5CPA and 6CPA funding shared with the actual pharmacist performing these services. The conduct of a Clozapine clinic in the last pharmacy Mr Yap worked in involved servicing 30-40 clients per clinic and required a patient’s blood test results to be inspected and signed off on a special monitoring website, and the details of dispensing of the Clozapine entered into the website. This process was time consuming and only commenced about 3 years ago.

Jennifer Madden

[78] Jennifer Madden 12 completed a Bachelor of Pharmacy at the Victorian College of Pharmacy in 1968, and gained full registration as a pharmacist with the Pharmacy Board of Victoria in 1970. She has worked, always on a part-time basis, in community, hospital, military, academic, research and consulting pharmacy roles. She remains registered as a pharmacist and is currently employed as a locum pharmacist with several pharmacies. She is currently classified as a Pharmacist in Charge, and is paid $40 per hour. Her duties include the usual activities of dispensing and supervising the sale of Schedule 2 and Schedule 3 medicines, and providing advice on medications as requested or necessary. She is not required to pay wages or manage stock, apart from during busy times, and would make corrections to Webster Packs when needed. As an Accredited Pharmacist she manages the HMR process, and also works with nursing homes regarding RMMRs to identify suitable residents and request reviews from their doctor as well as performing them.

[79] Ms Madden gave evidence that the university curriculum when she studied pharmacy at that time focused on becoming familiar with medicines prescribed by doctors and becoming expert in over-the-counter medicines, preparations and counter dispensing (for coughs and colds, pain remedies and first aid). She studied pharmacology, physiology and drug scheduling. When she commenced working as an intern in 1969, she said there was very little pressure and responsibility, and she performed typing, compounding and packing of bulk medicines. She did a practical and oral examination at the end of her internship. Ms Madden compared this to her experience of internships in recent years as a tutor and supervisor, and said that the intern year was now intense and demanding with a lot of assignment work and a more strenuous examination at the end.

[80] In relation to the work of a pharmacist, she said that in her experience there had been little change in the work until the advent of computers, initially in dispensing, in the 1980s. Computerised records allowed easy access to a patient’s history of use of medicines, and facilitated analysis of a patient’s profile when dispensing medicines. The introduction of Schedule 3 pharmacist-only medicines in the 1990s added another level of responsibility to pharmacists.

[81] Ms Madden said that during the 1990s, the rapidly expanding drug compendium available for prescribing, in conjunction with increased legal obligations, highlighted the need for continuing education which was initially voluntary but is now compulsory, being 40 hours required for continued registration. However it was emphasised that no increased remuneration was provided in response for this compulsory activity. She is required to undertake at least 60 hours of continuing education per year in order to maintain her registration as an Accredited Pharmacist.

[82] She set out that she had been accredited to undertake HMRs and RMMRs for about 15 years, and this constitutes about half her work. The skills required to be an Accredited Pharmacist are those of any registered pharmacist, but the accreditation process requires the pharmacist to show good communications skills at the professional and lay level and a good climical understanding of medicines and medical conditions. To become accredited she need to undertake a course accredited by the Australian Pharmacy Council, which included a communication module and ten case studies involving the preparation of a medication profile in each case. The course took almost a year to complete. She stated that she is required to sit an exam every three years to maintain her registration as an Accredited Pharmacist. Now that she is accredited she can write the report to the doctor based on feedback from another pharmacist or her own knowledge without actually interviewing the patient, but in fact of her 800 clients she only participated in one review without actually interviewing the client.

[83] Ms Madden also identified the additional professional services and duties performed by pharmacists. She stated that she frequently provided clinical interventions to customers, extending from directing a patient who wanted an antiseptic for a dog bite to go to their doctor as the antiseptic was an inadequate therapy, to a scenario involving checking why a patient was now taking a higher strength asthma medicine than six months prior, or intervening in not selling another patient Ventolin for a cough as they had not been diagnosed with asthma. In addition Clinical Interventions occurred with particular doses of drugs where “black box” warnings apply, that is, the medical professional is alerted to a potential problem with a particular drug or dose of drug. Her evidence was that the intervention may only take a number of minutes, or more than 10 minutes and often involved related phone calls to a doctor or carer. These interventions reduce the burden on the health system.

[84] In relating the nature of her changed duties, she stated that in the last two days of work in the community pharmacy, she filled 304 prescriptions between 9.00 am and 5.30 pm. She completed this task with one dispensary assistant and three competent shop staff. In addition she recorded 10 interventions and a range of other discussions with patients. She also checked 50 to 60 Webster packs, made changes to 2 Webster packs and initiated a new pack. In addition she supervised the sale of 20 Schedule 3 medicines and had discussions with two General Practitioners that were time-consuming. She noted that on this day there were no requests for Blood Pressure or Blood Glucose Level checks, no vaccinations or requests from hospitals for patient profiles or supply pick-ups.

[85] She stated that increasingly, pharmacists are often asked to respond to symptom based requests where in contrast previously the pharmacist was not called on as often to communicate about medicines, they were just dispensed. She stated that since the 1980s, in terms of Schedule 3 medicines, there has been significant movement of medications down the Schedule, which has placed pressure on Pharmacists to communicate information about these drugs to assist the patient. There is a need to dispense medications in an informed manner, taking into account the patient’s circumstances.

Carmel McCallum

[86] Carmel McCallum 13 graduated in 1977 at the University of Sydney and gained full registration as a pharmacist in 1977, and retains current registration as a pharmacist. She has worked at a range of community pharmacies, and has previously been an owner of a pharmacy, and is currently employed as a locum pharmacist. She is classified as a Pharmacist in Charge and is paid $40 per hour. Ms McCallum’s duties in her current position extend from dispensing and checking prescriptions; dispensing, checking and signing off DAAs; logging Schedule 8 medicines (including opioids, fentanyl, central nervous system stimulants such as Ritalin, and alprazolam); counselling patients regarding new prescription medications, adverse reactions or when interactions with other drugs may occur; counselling, diagnosing and recommending treatments for ailments as the first point of contact for patients; interpreting patient blood pressure readings and blood sugar levels; pain management and alternative recommendations when drug dependence is suspected; dispensing and delivery of methadone or buprenorphrine under the NSW Opioid Treatment Program; issuing medical certificates; overseeing the general day-to-day performance of staff; managing the supply of drugs at the pharmacy; and ascertaining the entitlement of patients to receive prescriptions under the National Health Scheme.

[87] Ms McCallum gave evidence that she commenced work in 1977 as an unregistered graduate pharmacist in a small pharmacy in New South Wales. She stated that at that time her duties involved handwriting copies of prescriptions into a log book, handwriting repeats and typing labels on a typewriter, and that all her work was checked off by a more senior registered pharmacist. If a product such as creams, ointments or mixtures had to be prepared, it could take ten minutes to an hour and about 70-80 scripts would be processed per day. Ms McCallum stated that she was able to spend up to 10 minutes per patient, and was able to provide them with advice on minor ailments, such as bites, rashes, minor burns, injuries, allergies, upper respiratory tract infections, vomiting and diarrhoea, difficulties with new-born babies, recommending the appropriate treatment which was available over the counter, or other non-drug related action. She also made up proprietary products, such as cough medicine, in bulk.

[88] She stated that over her time in the profession she had observed additional expectations, regulations and increases in workloads for pharmacists. She stated that much of the increased workload has come about as a result of the increase in life expectancy, change in medications, and increases in co-morbidity and lifestyle disease states. Pharmacists now had to oversee the accuracy of dispensing huge numbers of prescriptions. A number of pharmacies were now providing dispensing services in locations near large hospitals with casualty wards operating 24 hours per day. She referred to the up-scheduling since the 1990s of products containing codeine, pseudoephedrine and dihydrocodeine to Schedule 3 and 3R (which required recording), which required the pharmacist to ascertain need, usage, possible interactions, adverse reactions and addiction and misuse issues. The up-scheduling of codeine products to Schedule 4 would be challenging in terms of dealing with patients with addictions. The down-scheduling of products since the 1990s also increased pharmacists’ responsibilities.

[89] Ms McCallum also referred to other changes and new work such as blood pressure measurement (which might lead to a medical referral), training for the Diabetes Medication Assistance Service (although this had not proved successful), an exponential increase in the prescribing of Schedule 8 drugs over the last 6-7 years (which required much longer to be dispensed), and an increase in interventions. She had also dealt with at least six differing digital dispensing systems over the last 35 years.

[90] She stated that unlike most professionals, pharmacists were not able to make appointments for enquiries during the work day, as there was an expectation that pharmacists are available at all times during operating hours. Pharmacists were required to be available at all times of the day during opening hours while on the premises, but the pressure and workloads had increased enormously since 1977.

Mr Alex Crowther

[91] Mr Alex Crowther is employed as the Surveys Manager of the APESMA. In his first witness statement, 14 Mr Crowther said that his duties include the collection of data using online surveying tools for the purposes of creating market research of interest to APESMA, and he conducts regular surveys of remuneration and employment conditions in a number of industries covered by the APESMA. Relevantly the APESMA had published the Community Pharmacists’ Remuneration Survey Report series since 1995. Data published in this series was collected from members of the APESMA’s pharmacy division as well as non-member pharmacists who had previously interacted with the APESMA through online campaigns or social media. He stated that the report series benchmarked the employment conditions and remuneration of pharmacists employed in the community pharmacy sector. It collected and reported data including community pharmacists’ hourly rates of pay, additional responsibilities required of community pharmacists beyond dispensing medicine, sentiment regarding working in the community pharmacist sector, and demographic information.

[92] Mr Crowther’s statement annexed copies of the report series since 1995. He stated the following conclusions, derived from the report series, about wages movement for pharmacists:

  The 2016 Remuneration Survey identified mean hourly rates of pay for permanent employee pharmacists at each of the classifications outlined in the Award as follows: Pharmacy Intern ($23.02), Pharmacist ($32.49), Experienced Pharmacist ($36.66), Pharmacist-in-Charge ($35.95), and Pharmacist Manager ($38.49).

  Mean hourly rates of pay reported by community pharmacists were lower in 2016 than they were for community pharmacists surveyed in 2011, with decreases of 5.49% for Pharmacists, 3.73% for Experienced Pharmacists, 7.94% for Pharmacists-in-Charge, and 1.86% for Pharmacist Managers. Prior to 2011 community pharmacists mean hourly rates of pay had increased steadily.

  Growth in the hourly rates of pay for community pharmacists had also fallen behind growth in the Australian wages generally, as measured by the Wage Price Index (WPI), and the cost of living, as measured by the Consumer Price Index (CPI), for each of the classifications above that of Pharmacy Intern.

  Since 1998, Pharmacists had experienced a decline in the real value of their wages of 11.59%, Pharmacists-in-Charge of 7.35%, and Pharmacist Managers of 3.52%. Pharmacists had also experienced wage growth 21.47% below that of the average Australian, 17.69% for Pharmacists-in-Charge, and 14.29% for Pharmacist Managers.

  The underperformance of pharmacist wage growth relative to both CPI and WPI was largely due to stagnant and declining hourly rates of pay since 2011. Prior to 2011 pharmacists tended to outperform both CPI and WPI year on year.

[93] In respect of the this decline in wages, Mr Crowther noted that as the report series does not use the same respondents year-on-year, this was likely due to a combination of both stagnant wage movement and new entrants to the industry at each classification being offered progressively lower starting packages.

[94] The report series also surveyed whether the respondents were required to provide any professional services as part of their duties, including HMRs, RMMRs, MedsChecks, vaccinations, and other services. The results were as follows:

  Vaccinations: 20.98%

  Other services: 15.41%

  HMRs: 15.41%

  RMMRs: 4.59%.

[95] Only 8.4% of respondents that performed one or more of these services reported receiving additional compensation.

[96] In his statement in reply, 15 Mr Crowther referred to the Graduate Outcome Survey published by Quality Indicators for Learning and Teaching. He stated that this survey provides information regarding commencing salaries for Australian graduates, and that the latest report published January 2018 identified pharmacy graduates were the most poorly remunerated of any professionals. Based on this survey he said that “… compared to other allied health professionals, pharmacy graduates had commencing salaries 26.7% less than Nursing graduates, and 23.6% less than Psychology graduates in 2017. Compared to Engineering graduates, another professional that requires a four-year degree and covered by Professionals Australia, Pharmacy graduates have a commencing salary 31.3% less in 2017.”

Community Pharmacy Agreements

[97] The APESMA tendered copies of the six Community Pharmacy Agreements which have been entered into between the Federal Government and the PGA in 1990, 1995, 2000, 2005, 2010 and 2015 (amended in 2017) respectively. We will refer to certain aspects of those agreements relied upon by the APESMA.

[98] The First CPA entered into in 1990 had two parts. The first was concerned primarily with the adjustment of the Commonwealth’s price for pharmaceutical benefits. That price consisted of two elements: a dispensing fee and a mark-up component. The agreement provided for the dispensing fee to be indexed in accordance with a formula that included a 75% “labour component” which was adjustable in accordance with award wage movements. The second part was concerned with various restrictions on competition in the pharmacy sector and dealt with matters such as the subsidised closure and amalgamation of pharmacies, the payment of an “Essential Pharmacy Allowance” by the Commonwealth “to approved pharmacies to maintain an essential pharmacy service and to maintain access to pharmaceutical benefits”, ownership laws, pricing and location rules. The Second CPA entered into in 1995 removed the labour component from the indexation process, and simply used the CPI. It also dealt with various agreed restrictions on competition, and provided for the payment of an additional allowance for isolated and remote pharmacies.

[99] The Third CPA entered into in 2000 stated that it was based on a number of principles, one of which was “expanding community pharmacy’s professional roles”, and also provided for objectives that included “development of enhanced medication reviews, in cooperation with the medical profession, aimed at improving health outcomes and quality use of medicines for the Australian community” and “coordination in the delivery of primary health care services and achievement of a multi-disciplinary approach to the provision of quality health and pharmacy services for all sections of the community”. The agreement contained a specific endorsement of the PGA’s Quality Care Pharmacy Program as an appropriate quality assurance and professional practices standards program, and noted that funding for such standard were derived from the Pharmacy Development Program (PDP). The PDP was a program to be administered by the PGA and funded by the Commonwealth to the amount of $188 million over five years for the purpose of promoting “the enhanced involvement of community pharmacy in the pursuit of quality and cost effective service delivery. The agreement also provided for Medication Management Services (MMS) to patients in residential aged care and domiciliary settings to “reduce the risk of drug misadventure and optimise the benefits achieved from drug treatment by focussing on the achievement of quality use of medicines.” The Third CPA stated that it “builds on previous arrangements for delivery of medication review by incorporating several new elements”, including MMS to residents of residential aged care facilities, domiciliary MMS and case discussion and care planning, and these would be funded to the amount of $114 million over the life of the agreement.

[100] The Fourth CPA entered into in 2005 had different principles and objective, one of which was to “ensure that the Programs target areas of need in the community including continued improvement in community pharmacy services provided to Aboriginal and Torres Strait Islander people”. It noted that the Third CPA made provision for a total of $400 million for pharmacy programs, which included an amount contributed by the pharmacy that was funded through a reduction in the dispensing fee. The Fourth CPA indicated the amounts of funding assigned to various programs over five years, including $73.5 million for the QCPP, $39.7 million for DAAs, $10.4 million each for the diabetes and asthma pilot programs, $10.5 million for improved counselling for dispensing emergency contraception, $66.75 million of RMMRs and $54.15 million for HMRs.

[101] The Fifth CPA entered into in 2010 had further re-formulated principle and objectives, including to “ensure that the Programs are patient-focused and target areas of need in the community ...” and, in relation to professional pharmacy programs, had specific objectives including to “recognise that beneficial health outcomes can be achieved through the delivery of evidence based professional pharmacy programs and services”. The program finding priorities for the Fifth CPA were identified as including Medication Management Programs, Pharmacy Practice Incentive and Accreditation and Medication Continuance. In addition to the priority programs, there was funding for a new Medicines Use Review Program (to “provide an in-pharmacy medicine review between pharmacists and patients to enhance the quality use of medicines and reduce the number of adverse medicines events”) of $29.6 million over five years, and funding for a number of existing programs including HMRs ($52.11 million), RMMRs ($70 million), Diabetes Medication Management Service ($12.2 million), Pharmacy Practice Incentive and Accreditation ($75 million) and Medicine Continuance ($1 million). Other programs funded over the five years included $97 million for Clinical Interventions by Pharmacist (which program was to “build on 3rd and 4th Agreement Research and Development Projects to encourage Approved Pharmacists to provide and document clinical interventions arising from their patients’ medicine use” and had the aim to “increase the number of clinical interventions provided and documented and improve communications with patients and prescribers”), $132 million to support the provision of DAAs, $35 million for the Staged supply support allowance (which program would “provide a payment to eligible Approved Pharmacists which meet specified performance requirements in providing dispensed PBS medicines in instalments when requested by the prescriber…”), $5 million to support the Accreditation System and roll-out of Additional Programs to Support Patient Services, and a total of $8 million for other programs.

[102] The Sixth CPA entered into in 2015 and amended in 2017 continued to provide funding totalling $613 million for Community Pharmacy Programs including Medication Adherence Programs, DAAs, Staged Supply, Medication Management Programs, Clinical Interventions, HMRs, RMMRs and MedsCheck (a new name for the Medicines Use Review Program initiated in the fifth CPA).

Summary of the PGA’s Evidence

[103] The following persons gave evidence on behalf of the PGA:

  Ms Natalie Willis, pharmacist and owner of two pharmacies in Western Australia;

  Mr Angelo Pricolo, pharmacist and a partner in a pharmacy in New South Wales; and

  Mr Nicholas Loukas, pharmacist and owner of several pharmacies across Queensland.

Natalie Willis

[104] Natalie Willis 16 graduated in 1994 and began practising as a pharmacist in 1996 after completing her intern year. She initially worked as a locum pharmacist, and then became an owner of a pharmacy in Western Australia in 1999 (initially as a partner and later as a sole owner). She works in the pharmacy about three days per week performing a variety of clinical and administrative tasks. She is also a partner in a second pharmacy in Western Australia but does not work in the pharmacy itself. She said that all the pharmacists employed in the pharmacies were paid above the minimum wages prescribed in applicable Western Australian State award. No Accredited Pharmacists were employed. All her pharmacists were accredited to provide influenza vaccinations but were not paid more because of this.

[105] Ms Willis gave evidence that pharmacists had always been accountable for the safe and judicious use of medicines, but there was now a greater need to record, document and be able to justify the actions of a pharmacist in order to receive government payments and as a defence to litigation. Since 1998 there had been an increase in the level of Federal Government funding for community pharmacy services, in recognition of the capacity of pharmacies to enhance community health outcomes. Payment mechanisms had been developed for some of these services such as HMRs, MedsChecks, staffed supply, clinical interventions and DAAs. However most of these services were being performed by pharmacies prior to Government funding streams; the funding was more a recognition of the contribution of pharmacists to community health and to get these activities recorded, not to encourage pharmacies to do them. The tasks were performed by pharmacies in 1998, but were offered free of charge or on a fee-for-service basis. Because there was no funding available, the need for documentation for these activities was far less. She stated that there had been a shift in government funding in terms of the remuneration moving away from the dispensing function (as this waned) to provide for the true cost of funding the professional services activities of community pharmacy.

[106] Ms Willis said that pharmacists now routinely performed services outside dispensing and counselling such as point of care testing and formal MedsChecks. However they were still performed but were less commonplace 20 years ago and pharmacists had always been educated and qualified to perform these. The increased prevalence of these duties was offset by a greater number of dispensing staff. Pharmacists now were able to administer influenza vaccinations, which they had only been able to dispense before. Improvements in technology such as automated dispensing and scanning had improved dispensary speed, efficiency and accuracy, and developments in dispensing software had made it easier to assess the suitability of a medicine for a patient since script history, allergies and interactions with other medicines were more readily apparent. She stated that whilst automated systems existed for packing dosage administration aids, her pharmacies did not use one but instead used a computer to record medication profiles and track virtual pill counter patients. She stated that computers were increasingly used to record information and communicate with patients.

[107] In response to the list of new work claimed by APESMA, she considered that the administration of vaccinations was the only new work that required her to undertake additional training above her degree. She stated that with the exception of HMRs and RMMRs, she had performed every other professional service relied on by APESMA, either formally or informally, and had not required further education. She stated that her pharmacists have performed these services since 1998 and they are seamlessly integrated into their workflows. In the case of HMRs and RMMRs, Ms Willis stated that whilst these services required a pharmacist to obtain additional accreditation, it only required the pharmacist to prove clinical skills and adherence to a standardised documentation process, and does not require any special skills over and above those possessed by any other pharmacist.

[108] She stated asthma and diabetes management programs were highly variable, ranging from involving a patient who had an asthma action plan for an understanding of their blood glucose meter operation. Alternatively, it may involve simply ensuring the patient properly took the medication. She stated counselling on these conditions had always been part of her practice since commencement. She stated there were very few pharmacies providing specialised services in these areas where they had undertaken advanced training to provide a new service. Her evidence was that if the government decided to find a more formalised service then most of the training process driven would be a refresher in nature as pharmacists already handled these necessary clinical skills. She stated that pharmacists had always undertaken clinical interventions, with the difference being that these are now recorded.

[109] She stated that sleep apnoea services had become possible due to the advances in technology. However, she stated pharmacists understood sleep apnoea, it being a part of the university course requirement. In this regard the pharmacists play the support role in the communication with the patient and fitting of the machines but the sleep apnoea physician gives the actual diagnosis. She gave evidence that all pharmacists have undertaken drug compounding in their degree. She also stated that weight management services in a pharmacy will usually involve information on the use of meal and replacement weigh-ins and that often non-pharmacists conduct these. Point of care blood pressure testing had been undertaken by pharmacists since before she graduated. As for smoking cessation services, in most pharmacies this was largely limited to providing advice on nicotine replacement products, and rarely did pharmacies provide any formalised service involving counselling and cognitive behavioural therapy. The provision of absence of work certificates, which started in 2009, did not involve new skills, and the only training required was how to fill out a form.

[110] Ms Willis noted that the requirement to diagnose and treat of minor ailments and if necessary referral of patients to their treating medical practitioner, was not a new duty. Furthermore, in terms of the down-scheduling of various medicines from Prescription Only Medicine to Pharmacist Only Medicine, she stated that pharmacists were required to learn about these medicines when they were prescription only and are already fully conversant in these medications and the conditions they are used to treat, regardless of their scheduling. The Quality Care Pharmacy Program did not involve changed work, but was just a means of ensuring good practice. Clozapine clinics only required pharmacists to follow a process of recording pathology results into a database prior to supply, and only affected a small number of pharmacists.

[111] Ms Willis also gave evidence that there were aspects of pharmacists’ work that were no longer performed. Most pharmacies were not doing any significant compounding in 1998, and now compounding pharmacies were doing more and regular pharmacies were doing less. Manual processing of PBS claims, scheduled medicine recording, reporting, ordering and stocktaking had ceased, and while prescription volumes had increased, this had not been evenly distributed. The main change from her perspective was that, unlike 1998, it was now difficult to make a viable profit from dispensing. Any increase in pressure on pharmacists was mainly cause by owners and managers not employing adequate staff in order to minimise costs. In her experience, a typical pharmacist was dispensing less prescriptions and performing more patient services than 20 years ago. Technology had vastly streamlined dispensing and reporting services, and this together with more support staff had created more time for the pharmacist to spend with the patient. The degree of interaction between pharmacists and patients varied depending upon the service model adopted at each pharmacy, but generally the industry was moving towards being a personal service industry.

[112] In Mr Willis’ opinion, there had been no significant net addition to the work or responsibility of pharmacists since 1998, but pharmacists’ role had evolved into one whereby the skills they learned at university were now more frequently used.

Angelo Pricolo

[113] Mr Angelo Pricolo 17 is a Pharmacist and a partner in the ownership of a pharmacy located in Melbourne. The pharmacy employs 22 staff, and pays above the minimum rates in the Pharmacy Award. Mr Pricolo graduated in pharmacy in 1986 and was registered as a pharmacist in 1987.

[114] He stated that although the work for pharmacists has evolved over the past 20 years, their core tasks have remained the same: supplying prescription medicines to patients, and recommending additional measures and products if required. The drugs and the directions for their use changed over time, but this had always been the case and that was why continuing professional development remained essential. The need to talk to patients, understand their health issues and relevant medicines and their effects had always been part of the role of the pharmacist, although pharmacists had tended to make themselves more accessible to patients.

[115] Mr Pricolo stated that the impact of technology meant that pharmacists are now no longer required to remember significant amounts of information about various drugs and medications, and that although there are more drugs and medications available today, this information is easily accessible electronically. Pharmacists made up a lot more extemporaneous medicines in 1998 compared to now, and there are far fewer scripts that require compounding. His pharmacy began issuing medical certificates in about 2008, and this had become a popular service, but it was a relatively straightforward task drawing on the existing skills of the pharmacist to talk to a patient and understand their health issues.

[116] Mr Pricolo disagreed that there is a significant amount of new work being undertaken by pharmacists. He stated that a variety of professional services now offered by pharmacies, were in many instances done informally, and they had been formalised because they now attracted federal government funding. For instance, he stated that pharmacists have always dispensed inoculation drugs and the fact that some pharmacists are now able to inject some inoculation drugs is a “small additional component” to the existing practice but consistent with health care services a pharmacist had always provided. Asthma and diabetes management programs were also not new, although the form of medical treatment had changed. Similarly, HMRs and RMMRs were performed informally previously, and formal training in these services was now required to be able to claim it through the PBS. None of Mr Pricolo’s pharmacists performed this task. Clinical interventions had always been performed, although they are now recorded formally to document how often they happen because the pharmacy can now be remunerated for them. DAAs were also not new, although these were now done differently through the use of blister packs. Sleep apnoea services were not provided in Mr Pricolo’s pharmacy. Weight management services required talking to patients, understanding their needs and providing them with advice and products to meet that need; it did not require any additional skill or accountability. There had always been a capacity and knowledge to perform blood pressure level tests and blood glucose tests, and the current devices made this task easier and quicker. Smoking cessation services were not new. Diagnosing and treating minor ailments such as colds and flu, minor aches and pains, hay fever, minor skin irritations and wounds, had always occurred and predominately only the products have developed and changed. Down-scheduling of drugs had not affected the skill, workload or responsibility of pharmacists, and it was still the role of the pharmacist to talk to the patient about the drug. The issue of emergency contraception was not common, but in any event still required the normal responsibility of ensuring that the medication was appropriate and safe.

[117] Mr Pricolo gave evidence that the introduction of quality standards had “formalised what we have all aspired to but not in itself added to workload or the responsibility/accountability of a pharmacist.” He stated that the pressure faced by pharmacists is not new and prioritising tasks and managing workflow has always been part of the job. He considered that there has not been a significant increase in the workload, accountability or responsibility of a pharmacist. He stated that whilst pharmacists may now spend more time talking to patients, technology has meant that less time may be spent in other areas (such as retrieving patient histories, providing insurance receipts and printing out consumer medicine information leaflets).

Nicholas Loukas

[118] Nicholas Loukas 18 graduated as a pharmacist in 1991 and began practising in 1992. He has held ownership interests in pharmacies since 1993, and is currently the owner of five pharmacies in Northern Queensland. He pays all of his employed pharmacists above the minimum wage rates prescribed by the Pharmacy Award. He does this because the market rate is higher than the award and he has to pay more to attract suitable and experienced pharmacists to work in rural locations.

[119] Mr Loukas stated that since 1998, he has experienced a “lessening” in the administrative workload of pharmacists, so that although more administrative work was required for the Sixth CPA, there was less administrative work overall due to improvements in PBS claiming processes and software advances. PBS claims had in 1998 been a major component of the work, requiring extensive paper work, data claiming and couriering of claims. There had also been a huge drop in extemporaneous dispensing activities, so that it was rare to make up things such as creams and solutions. The scanning of prescriptions since 1998 had meant that the data entry work of a pharmacist had dropped significantly, and higher volumes of prescriptions were now able to be processed with the same resources due to IT improvements, and accuracy had improved, with scan checking of prescriptions taking some pressure off pharmacists. Mr Loukas said that it was his opinion that the accountability of pharmacists had decreased because of the improvements in IT systems such as script scanning and scan checking. He stated reduced administrative responsibilities had allowed pharmacists to have more direct contact with customers. In his statement, Mr Loukas considered that whilst the type of work he performed had shifted, this did not represent an overall increase in how much work was being performed.

[120] In relation to the APESMA claim that there had been a significant amount of new work taken by pharmacists, Mr Loukas disagreed and said:

  no one in his pharmacies performed HMRs or RMMRs:

  no one in his pharmacies performed inoculations;

  pharmacists carried out asthma and diabetes management programs in 1998, with there being a drop in the workload requirements but better education for patients and awareness of the use of preventative medicines;

  pharmacists had always done clinical interventions, but the recording of this was new;

  DAA work had been performed since 1998, although there had been a small increase in the number of DAAs provided;

  none of his pharmacies provided sleep apnoea services;

  none of his pharmacies provided compounding services;

  very little weight management services work was performed in his pharmacies and the focus was on providing general medicines advice as pharmacists had always done;

  blood pressure level tests had been conducted in his pharmacies since 1998, and the work was the same and did not require any new skills;

  none of his pharmacies did blood glucose level tests or provided smoking cessation services;

  diagnosis and treatment of minor ailments such as colds and flu, minor aches and pains, hay fever, minor skin irritations and wounds and, if necessary, referral to a medical practitioner was done in exactly the same way as in 1998;

  the introduction of quality standards through QCCP had not led to any further work load, but was just the formalisation of work practises already in place;

  absence from work certificates were not provided in any of his pharmacies as no demand for them had been identified; and

  in respect of Clozapine clinics, only one of his pharmacies had 2 patients, for which very little administrative work was required.

[121] Mr Loukas said that with the down scheduling of a large number of previous prescription-only medicines, pharmacists now had to diagnose and treat conditions such as bacterial conjunctivitis (chloramphenicol), nausea related to migraines (Metoclopramide), medicated weight loss treatments (orlistat) provision of pump inhibitors (PPI) for treatment of GORD, nasal decongestants (facilitated with the use of Project Stop), providing emergency contraception(morning after pill), oral antiviral treatments for cold sores (famciclovir), oral treatments for vaginal thrush (fluconzale) and the provision of Naloxone for the emergency treatment of acute opioid overdose. However he said that this had caused very little change in work load as the same amount of the mentioned conditions were presented at the pharmacy; the diagnosis process was the same as it was in 1998, but there were better options for treatment to recommend to patients. Mr Loukas did accept that emergency contraception was new work for pharmacists, and that whilst it did represent an increase in the accountability and responsibility of a pharmacist, there were no other instances of this. He also said that dangerous drug recording was a manual task required in 1998 which was now undertaken electronically.

Statutory framework and the assessment of work value

[122] The task required to be undertaken in a 4 yearly review is set out in s 156(2) as follows:

What has to be done in a 4 yearly review?

(2)  In a 4 yearly review of modern awards, the FWC:

(a)  must review all modern awards; and

(b)  may make:

(i)  one or more determinations varying modern awards; and

(ii)  one or more modern awards; and

(iii)  one or more determinations revoking modern awards; and

(c)  must not review, or make a determination to vary, a default fund term of a modern award.

[123] The conduct of the 4 yearly review is subject to s 138, which provides:

138 Achieving the modern awards objective

A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.

[124] The modern awards objective is set out in s 134 of the FW Act, and provides as follows:

134 The modern awards objective

What is the modern awards objective?

(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(b) the need to encourage collective bargaining; and

(c) the need to promote social inclusion through increased workforce participation; and

(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and

(da) the need to provide additional remuneration for:

employees working overtime; or

employees working unsocial, irregular or unpredictable hours; or

employees working on weekends or public holidays; or

employees working shifts; and

(e) the principle of equal remuneration for work of equal or comparable value; and

(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.

When does the modern awards objective apply?

(2) The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:

(a) the FWC’s functions or powers under this Part; and

(b) the FWC’s functions or powers under Part 2 6, so far as they relate to modern award minimum wages.

Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).

[125] The minimum wages objective is set out in s 284(1), which provides:

284 The minimum wages objective

What is the minimum wages objective?

(1)  The FWC must establish and maintain a safety net of fair minimum wages, taking into account:

(a)  the performance and competitiveness of the national economy, including productivity, business competitiveness and viability, inflation and employment growth; and

(b)  promoting social inclusion through increased workforce participation; and

(c)  relative living standards and the needs of the low paid; and

(d)  the principle of equal remuneration for work of equal or comparable value; and

(e)  providing a comprehensive range of fair minimum wages to junior employees, employees to whom training arrangements apply and employees with a disability.

This is the minimum wages objective.

[126] The general principles applicable to the conduct of the 4-yearly review were recently summarised in Alpine Resorts Award 2010 19 as follows:

  section 156(2) provides that the Commission must review all modern awards and may, among other things, make determinations varying modern awards;

  “review” has its ordinary and natural meaning of “survey, inspect, re-examine or look back upon”; 20

  the discretion in s 156(2)(b)(i) to make determinations varying modern awards in a review, is expressed in general, unqualified, terms, but the breadth of the discretion is constrained by other provisions of the FW Act relevant to the conduct of the review;

  in particular the modern awards objective in s 134 applies to the review;

  the modern awards objective is very broadly expressed,21 and is a composite expression which requires that modern awards, together with the NES, provide “a fair and relevant minimum safety net of terms and conditions”, taking into account the matters in ss 134(1)(a)–(h);22

  fairness in this context is to be assessed from the perspective of the employees and employers covered by the modern award in question; 23

  the obligation to take into account the s 134 considerations means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process; 24

  no particular primacy is attached to any of the s 134 considerations and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award; 25

  it is not necessary to make a finding that the award fails to satisfy one or more of the s 134 considerations as a prerequisite to the variation of a modern award; 26 

  the s 134 considerations do not set a particular standard against which a modern award can be evaluated; many of them may be characterised as broad social objectives; 27

  in giving effect to the modern awards objective the Commission is performing an evaluative function taking into account the matters in s 134(1)(a)–(h) and assessing the qualities of the safety net by reference to the statutory criteria of fairness and relevance;

  what is necessary is for the Commission to review a particular modern award and, by reference to the s 134 considerations and any other consideration consistent with the purpose of the objective, come to an evaluative judgment about the objective and what terms should be included only to the extent necessary to achieve the objective of a fair and relevant minimum safety net; 28 

  the matters which may be taken into account are not confined to the s 134 considerations; 29

  section 138, in requiring that modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective, emphasises the fact it is the minimum safety net and minimum wages objective to which the modern awards are directed;  30

  what is necessary to achieve the modern awards objective in a particular case is a value judgment, taking into account the s 134 considerations to the extent that they are relevant having regard to the context, including the circumstances pertaining to the particular modern award, the terms of any proposed variation and the submissions and evidence; 31

  where an interested party applies for a variation to a modern award as part of the 4 yearly review, the task is not to address a jurisdictional fact about the need for change, but to review the award and evaluate whether the posited terms with a variation meet the objective. 32

[127] The capacity of the Commission to vary minimum wages in a modern award in the course of the conduct of the 4 yearly review is constrained by s 135 of the FW Act, which provides:

135 Special provisions relating to modern award minimum wages

(1) Modern award minimum wages cannot be varied under this Part except as follows:

(a) modern award minimum wages can be varied if the FWC is satisfied that the variation is justified by work value reasons (see subsections 156(3) and 157(2));

(b) modern award minimum wages can be varied under section 160 (which deals with variation to remove ambiguities or correct errors) or section 161 (which deals with variation on referral by the Australian Human Rights Commission).

Note 1: The main power to vary modern award minimum wages is in annual wage reviews under Part 2-6. Modern award minimum wages can also be set or revoked in annual wage reviews.

Note 2: For the meanings of modern award minimum wages, and setting and varying such wages, see section 284.

(2) In exercising its powers under this Part to set, vary or revoke modern award minimum wages, the FWC must take into account the rate of the national minimum wage as currently set in a national minimum wage order.

(Underlining added)

[128] Section 156(3), referred to in the underlined part of s 135(1)(a) above, provides:

(3) In a 4 yearly review of modern awards, the FWC may make a determination varying modern award minimum wages only if the FWC is satisfied that the variation of modern award minimum wages is justified by work value reasons.

[129] The expression “work value reasons” is defined under s 156(4) of the FW Act:

(4) Work value reasons are reasons justifying the amount that employees should be paid for doing a particular kind of work, being reasons related to any of the following:

(a) the nature of the work;

(b) the level of skill or responsibility involved in doing the work;

(c) the conditions under which the work is done.

[130] Section 157(2), also referred to in the underlined portion of s 135(1)(a) above, provides for the variation of awards outside the system of 4 yearly reviews for work value reasons in specified circumstances.

[131] The fixation of award wages based on an assessment of the value of the work performed has been a feature of the industrial arbitration system in Australia from its earliest days. Work value assessment has its origin in the need to fix the wage margins for skilled workers to be paid in addition to the basic wage for unskilled workers. As was explained by H.B. Higgins J, in his capacity as President of the Court of Conciliation and Arbitration, in his decision in 1921 to make the first federal award for the metals and engineering industry (emphasis added):

“This Court assumes that a skilled man should, as has been the uniform practice, get more for his skill or other necessary qualifications than a mere labourer – more or better commodities, and to that end more money wages. This Court takes the basic wage for the labourer and then adds to it the extra wage without which, under present conditions, lads will not take the trouble of mastering the difficulties of a skilled trade. If there is one thing that has been made clear in all the Australian tribunals it is that the basic wage is the wage at the base – the wage for the unskilled worker; and that the secondary wage for skill and other necessary qualifications has to be added to the basis wage. The basic wage must not take into account the conditions appropriate to the skilled workers at all.” 33

[132] The considerations taken into account in assessing work value underwent refinement in succeeding decades (including after the introduction of the “total wage” in 1966). For example, in the work value inquiry conducted in relation to the Metal Trades Award in 1967, the Australian Conciliation and Arbitration Commission (Gallagher J) referred to the subject matter of the assessment as being the “work, its nature and responsibilities”, and took into account:

“…all relevant facts and circumstances, including qualifications, training and skill, technological changes, changed conditions, changes in metals, alterations of methods of work, increased temp of work, responsibilities individually and as a member of a team, availability for skilled work and the length of time which has elapsed since previous fixations …”. 34

[133] In the 1968 Vehicle Industry Award decision of Senior Commissioner Taylor, regard was had to the following matters in adjusting award rates of pay on the basis of work value:

“1. The qualifications necessary for the job;

2. The training period required;

3. Attributes required for the performance of the work;

4. Responsibility for the work, material and equipment and for the safety of the plant and other employees;

5. Conditions under which the work is performed such as heat, cold, dirt, wetness, noise, necessity to wear protective equipment etc;

6. Quality of work attributable to, and required of, the employee;

7. Versatility and adaptability (e.g. to perform a multiplicity of functions);

8. Skill exercised;

9. Acquired knowledge of processes and of plant;

10. Supervision over others or necessity to work without supervision; and

11. Importance of work to the overall operations of plant.” 35

[134] These considerations were considered in the context of manufacturing work, and the Senior Commissioner made it clear that he did not suggest that “these are the only factors proper for consideration in the fixation of wage rates”. 36

[135] Both these last two decisions referred to emphasised two important requirements if the assessment of work value: the identification of the date from which the assessment of change is to commence (sometimes referred to in later decisions as the “datum point”), and the need to avoid “double counting” of matters potentially relevant to changes in work value in relation to which wage increases had already been paid. In respect of the former, the Metal Trades Award decision of Gallagher J identified the datum point by reference to the last occasion on which there had been a proper work value assessment:

“Proceeding to consideration of wage fixations and first dealing with tradesmen, although Beeby J by 1937 had determined margins which he regarded as proper for their classifications, the fact remains that rates for tradesmen in the metal trades industry have not over a period of 30 years been fixed by reference to their training, work, duties and responsibilities. The decision given by Mr Conciliation Commissioner Galvin (as he then was) in 1952 although reached after a hearing in which there had been lengthy evidence resulted in award rates being left as they then stood, with relativities except for minor adjustments remaining undisturbed. There were, of course, prior to the Galvin award and subsequently to it, increases on economic grounds but these were of a general character applying to all employees in all industries. In my opinion, the economic increases taken in the aggregate have failed to provide for tradesmen the award wages to which on the whole of the course of the evidence in this case they are justly entitled.” 37

[136] In relation to the latter requirement, Senior Commissioner Taylor in the Vehicle Industry Award decision said:

“National productivity is considered in National Wage Cases and any increase is allowed for in the wage rates determined in such cases. As such rates apply to employees in all industries, employees in the industry now under review have already received any increases considered appropriate on account of national productivity. As the productivity of this industry is taken into account in determining the national average, it would be a double counting to again increase wages in this industry on account of its productivity.” 38

[137] In 1972, the concept of work value was considered in the 1972 Equal Pay Case 39 in the context of implementing equal pay for women. The Commission determined to move beyond the narrow principle of equal pay for men and women doing the same work covered by a single award (which had been affirmed in the 1969 Equal Pay Case40) to a broader concept of “equal pay for work of equal value”. It established a new principle to give effect to this concept which required that “female rates be determined by work value comparisons without regard to the sex of the employees concerned”. The new principle relevantly provided that: “Implementation of the new principle by arbitration will call for the exercise of the broad judgement which has characterised work value enquiries. Different criteria will continue to apply from case to case and may vary from one class of work to another.”41

[138] The capacity to adjust award wage rates on work value grounds was regulated and constrained by the adoption of principles of wage fixation by the Australian Conciliation and Arbitration Commission in the September 1975 National Wage Case42 This was done in association with the introduction of wage indexation, and was intended to restrict the extent to which award wages might be increased outside of National Wage Cases following the “wage explosion” of 1974. Principle 7 of the principles then adopted provided that, in addition to wage increases arising from the wage indexation system, the “only other grounds which should justify wage increases” were changes in work value, a catch-up of community movements and anomalies. The work value exception (in Principle 7(a)) was expressed in the following terms:

“Changes in work value being changes in the nature of the work, skill and responsibility required, or the conditions under which the work is performed. This would normally apply to some classifications in an award although in rare cases it might apply to all classifications.”

[139] The intended operation of this principle was discussed in some detail in the September 1975 National Wage Case decision. The Commission made it clear that the identification in the principle of the type of changes necessary was intended to be exhaustive and not merely illustrative. 43 It also made it clear that the principle was not intended to codify all previous forms of work value assessment - in particular, the notion of comparative wage justice. In this respect the Commission said:

“Our view in April to which we still adhere was that to extend Principle 7(a) to cover all previously recognized forms of work value assessment would be simply to superimpose indexation on wage fixing methods which in 1974 had created instability both industrially and economically. It is disturbing that this is not apparent to many unions and even to some arbitrators. With a multiplicity of systems, organizations and arbitrators, the pressure of historical relationships and the use of the comparative wage justice concept it is extremely difficult for a wage adjustment to be confined to a particular case. We do not intend that the doctrine of comparative wage justice—that universal test which means all things to all men—should be available to justify every wage increase whenever sought.” 44

[140] The Commission also discussed new constraints on the datum point to be used for any work value assessment as follows:

“Another related matter which has caused problems is the time from which work value changes should be measured. Despite strong argument that one should go back to the last ‘genuine’ work value assessment we consider this is an exercise which in itself could cause endless debate. We therefore adopt as a prima facie position the pragmatic approach of a Full Bench in the Municipal Officers Adelaide City Council case (31 July 1975) when the Bench said ‘the words are intended to relate to the last movement in the award rates concerned apart from national wage and indexation’. That prima facie position can only be rebutted if a party demonstrates that special circumstances exist warranting a departure from it. Should an application be made for an earlier starting point we envisage that the issue would normally be heard and determined as a preliminary matter. Further where the application is successful and the starting point claimed is earlier than 1 January 1970 only changes that have occurred since 1 January 1970 shall be taken into account and this is so even if there has never been a previous work value fixation. We do not agree that before a job has been given a work value there must have been some formal process or announcement. The mere existence of a rate in an award is evidence of the fact that the job has been valued even if only by acquiescence. We take this view because we believe that although we should allow some latitude as to starting point, if we left the matter completely open, people might seek to indulge in protracted unhelpful historical exercises.” 45

[141] The Commission also emphasised two other propositions: first, that changes in work by themselves did not necessary lead to changes in work value and what was required a “significant net addition to work requirements” and, second, that the expression in the principle “the conditions under which the work was performed” was not intended to the non-wage conditions of the award but rather to the environment in which the work was performed.

[142] In the May 1976 National Wage Case 46 the Commission codified the above propositions into Principle 7(a), so that it read as follows:

“(7) In addition to the above increases, the only other grounds which would justify pay increases are:

(a) Changes in work value

Changes in work value being changes in the nature of the work, skill and responsibility required, or the conditions under which the work is performed. This would normally apply to some classifications in an award although in rare cases it might apply to all classifications.

(i) Prima facie the time from which work value changes should be measured is the last movement in the award rates concerned apart from National Wage and Indexation. That prima facie position can only be rebutted if a party demonstrates special circumstances and even then changes can go back only to 1 January 1970.

(ii) Changes in work by themselves may not lead to changes in the value of work. The change should constitute a significant net addition to work requirements to warrant a wage increase.

(iii) Where it has been demonstrated that a change has taken place in accordance with the principles, an assessment will have to be made as to how that change should be measured in money terms.

(iv) The expression ‘the conditions under which the work is performed’ relates to the environment in which the work is done.

(v) In respect of new work for which there is no current rate, an appropriate rate may be struck in accordance with proper work evaluation.

(vi) Re-classification of existing jobs is to be determined in accordance with this principle.”

[143] It is important to observe that the wage-fixing principles were imposed on an award system in which wages rates had been developed on an award-by-award basis through ad hoc combinations of arbitrated work value decisions, consent settlements to industrial disputes and National Wage Cases. That what was being done involved an attempt to graft standardised wage fixing on to an existing system characterised by its irregularity was recognised at the time; for example in 1976 a Full Bench commented that: “The relevant background against which the indexation principle was introduced contained an irregular pattern which no system of wage fixation could entirely reconcile”. 47

[144] The principles established in 1975 remained in place until 1981, when the wages indexation system was scrapped by the Commission in the face of a further wage explosion caused by claims made outside of the system. During the 1975-1981 period the system, notwithstanding the apparent restrictiveness of Principle 7(a), accommodated a “work value round” commencing in 1978 which resulted in a remarkably uniform flat $8 increase being granted across most awards. The exception was the 1979 decision of Staples J in relation to the Storeman and Packers (Wool Selling Brokers and Repackers) Award 197348 Having apparently been satisfied that the work of the relevant employees had changed in value, Staples J then considered the quantification of the wage increase to be awarded as follows:

“It is one thing to conclude that new minimum rates should now be prescribed. It is another to quantify the change. What shall be the measure? It may not be discovered in the profitability of the enterprise, not in the increased productivity of the relevant workforce. It may not be an adjustment to the burden of taxation of the wage-earner nor reflect any movement in the cost of living. It may not reinstate any losses due to partial indexation in the real worth of the original rate nor may it derive from a comparison with rates paid in other industries. It must not be extravagant or contrived, nor may it be mindless or consequential upon changes elsewhere. The impact in economic terms must be negligible. It should help to reduce inflation. At the same time, it must stabilize industrial relations. For the quantification, then what shall I do? I am already reeling under the advice of the many prophets. There is no Polonius at hand to give me memorable precepts as he did Laertes when he fled the confusion. I shall simply select a figure as Tom Collins selected a day from his diary and we shall see what turns up. Such is life.” 49

[145] The amounts awarded by Staples J ranged from $12.50 to $15.90 depending upon the classification. However the decision was overturned on appeal. 50 In substitution for the wage increases ordered by Staples J, the Full Bench ordered that wages be increased by $8 per week.51

[146] Wage fixing principles were re-established in the 1983 National Wage Case 52 under which the Accord era of wages fixation commenced. In its decision the Commission emphasised that the work value principle to be established as part of the new wage fixing principles was to be “limited and genuine”,53 in the context of the general objective of limiting any award wage increases outside of National Wage Case increases as part of an accepted policy of wage and price restraint.54 This emphasis on wage restraint caused the Commission to reject a submission that awards covering female-dominated areas of work should be the subject of full work value assessments:

“The National Council of Women, the Union of Australian Women and the Women’s Electoral Lobby contended that in female occupational areas the implementation of the Commission’s equal pay decisions had not been accompanied by proper work value exercises. The WEL asked that there be provision for a re-evaluation of this work in any centralized system the Commission should introduce, such work value exercises to be carried out as the individual awards came up for variation or through an anomalies or inequities procedure. We consider that such large scale work value inquiries would clearly provide an opportunity for the development of additional tiers of wage increases, which would be inconsistent with the centralized system which we propose for the next two years and would also be inappropriate in the current state of unemployment especially among women. Moreover, many of the problems which the WEL has raised are a matter for management, unions and governments rather than for award provision.”

[147] The Commission also rejected an ACTU submission that the datum point for work value assessments should be (consistent with the positions stated in the 1967 Metal Trades Award decision of Gallagher J) the last wage increase for the award in question outside of national wage increases:

“The ACTU proposed a principle which is substantially similar to the above except that the prima facie datum point from which work value should be measured is not fixed in terms of the last movement in the award apart from national wage. Instead, the proposed prima facie position would require a party seeking the work value change ‘to demonstrate that the work or the alleged change in question has not been valued previously’.

We foresee considerable difficulty with such a provision particularly in relation to rates which were determined by consent and without any formal work evaluation. In view of the extensive round of work value cases which commenced in 1978, we propose to restrict the datum point to the last work value adjustment affecting an award but in no case earlier than 1 January 1978. Care should be exercised to ensure that changes which were taken into account in any previous work value adjustments are not included in any future work evaluation under this Principle.”

[148] The effect of these conclusions was that there was to be no capacity to obtain wage increases based on any failure to properly assess work value which occurred prior to 1 January 1978, including where this because of gender undervaluation. The work value principle which emerged from the 1983 National Wage Case decision was as follows:

4. WORK VALUE CHANGES

(a) Changes in work value may arise from changes in the nature of the work, skill and responsibility required or the conditions under which work is performed. Changes in work by themselves may not lead to a change in wage rates. The strict test for an alteration in wage rates is that the change in the nature of work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification.

These are the only circumstances in which rates may be altered on the ground of work value and the altered rates may be applied only to employees whose work has changed in accordance with this Principle.

However rather than to create a new classification it may be more convenient in the circumstances of a particular case to fix a new rate for an existing classification or to provide for an allowance which is payable in addition to the existing rate for the classification. In such cases the same strict test must be applied.

(b) Where new work justifying a higher rate is performed only from time to time by persons covered by a particular classification or where it is performed only by some of the persons covered by the classification, such new work should be compensated by a special allowance which is payable only when the new work is performed by a particular employee and not by increasing the rate for the classification as a whole.

(c) The time from which work value changes should be measured is the last work value adjustment in the award under consideration but in no case earlier than 1 January 1978. Care should be exercised to ensure that changes which were taken into account in any previous work value adjustments are not included in any work evaluation under this Principle.

(d) Where a significant net alteration to work value has been established in accordance with this Principle, an assessment will have to be made as to how that alteration should be measured in money terms. Such assessment should normally be based on the previous work requirements, the wage previously fixed for the work and the nature and extent of the change in work. However, where appropriate, comparisons may also be made with other wages and work requirements within the award or to wage increases for changed work requirements in the same classification in other awards provided the same changes have occurred.

(e) The expression “the conditions under which the work is performed” relates to the environment in which the work is done.

(f) The Commission should guard against contrived classifications and overclassification of jobs.

(g) Where through technological or other change the impact of work value change on the work force is widespread or general, the matter should be dealt with in national productivity cases under Principle 2.” 55

[149] Notwithstanding the rejection of the submission of the women’s groups in the 1983 National Wage Case decision that there be full work value-reassessments of awards applying to female-dominated areas of work, the Commission subsequently affirmed in the Nurses Comparable Worth Case 56 that cases based on the 1972 equal pay principle could be advanced through the anomalies conference procedure provided for in the wage-fixing principles. However in doing so the Commission rejected any wider proposition that wages could be fixed on the basis of “comparable worth” between different types of work that were not related or similar.57

[150] There were further significant changes to the approach taken to award wage claims based on work value in the period 1989 to 1991. In the National Wage Case August 1988 58 the Commission established a new “structural efficiency” principle which contemplated the examination of awards with a view, among other things, to “create appropriate relativities between different categories of workers within the award…” and “including properly fixed minimum rates for classifications in awards, related appropriately to one another, with any amounts in excess of these properly fixed minimum rates being expressed as supplementary payments”. This new approach was the subject of greater elaboration by the Australian Industrial Relations Commission in the National Wage Case February 1989 Review59, in which the Commission among things discussed how it was apply to the relationship between awards. Its consideration in this respect primarily arose in response to a proposal advanced by the ACTU for a new overarching framework of award wage fixation, which was described in the following terms:

“It submitted that the Commission should approve in principle a national framework or ‘blueprint’ which would involve restructuring all awards of the Commission to provide ‘consistent, coherent award structures’, based on training and skills acquired, and which would bear clear and appropriate work value relationships one to another. It illustrated its proposal by reference to possible restructuring results - at least as far as classification structures and training are concerned - in awards covering the building industry, metal workers, transport workers, storemen and clerks: these are key awards in the sense that their classifications arguably permeate all areas of industry.” 60

[151] The Commission by observing that the then current award wage system contained “irregularities in rates of pay which must be dealt with”, and that this had pre-dated the introduction of wage indexation in 1975 as had been recognised at the time. 61 The Commission went on to say:

“The result is there exist in federal awards widespread examples of the prescription of different rates of pay for employees performing the same work but this is only part of the problem. For too long there have existed inequitable relationships among various classifications of employees. That this situation exists can be traced to features of the industrial relations system such as different attitudes adopted in relation to the adjustment of minimum rates and paid rates awards; different attitudes taken to the inclusion of overaward elements in awards, be they minimum rates or paid rates awards; the inclusion of supplementary payments in some awards and not others; and the different attitudes taken to consent arrangements and arbitrated awards.

. . .

The situation we have described has been tolerated for too long and it is appropriate that it be corrected at this time. The fundamental purpose of the structural efficiency principle is to modernise awards in the interests of both employees and employers and in the interests of the Australian community: such modernisation without steps being taken to ensure stability as between those awards and their relevance to industry would, on past experience, seriously reduce the effectiveness of that modernisation.

Consequently, we endorse in principle the approach proposed by the ACTU though not necessarily the particular award relationships submitted in this case. That is a matter which we expect to be the subject of further debate in the forthcoming proceedings.

This means that minimum rates awards will be reviewed to ensure that classification rates and supplementary payments in an award bear a proper relationship to classification rates and supplementary payments in other minimum rates awards.” 62

[152] It is apparent that the concept being dealt with in the August 1988 decision involved the alignment of benchmark classifications in key minimum rates awards based on work value considerations. This concept of cross-award alignments in pay rates was the subject of further development in the National Wage Case August 198963 One of the two main issues which was said to require determination in that decision was “how the approach endorsed in principle by the Commission for ensuring stable relationships between awards and their relevance to industry is best translated into practice.”64 In relation to this issue, the Commission gave consideration to a proposal advanced by the ACTU to establish a fixed set of relativities in terms of total pay rates (minimum classification rates plus supplementary payments) across five major awards. The Commission’s conclusions on this issue were as follows:

“Without firm guidance on appropriate relativities, individual structural efficiency exercises could create situations which would not only continue but possibly worsen the very position that is required to be rectified. For this reason we reject the proposition that the question of relativities should be left completely until the details of structural efficiency exercises are completed.

Subject to what we say later in this decision, we have decided that the minimum classification rate to be established over time for a metal industry tradesperson and a building industry tradesperson should be $356.30 per week with a $50.70 per week supplementary payment. The minimum classification rate of $356.30 per week would reflect the final effect of the structural efficiency adjustment determined by this decision.

Minimum classification rates and supplementary payments for other classifications throughout awards should be set in individual cases in relation to these rates on the basis of relative skill, responsibility and the conditions under which the particular work is normally performed. The Commission will only approve relativities in a particular award when satisfied that they are consistent with the rates and relativities fixed for comparable classifications in other awards. Before that requirement can be satisfied clear definitions will have to be established.

We are not prepared to approve specific wage relativities proposed by the ACTU on behalf of the trade union movement. Nevertheless, we consider it appropriate for relativities to be established for both minimum classification rates and supplementary payments for the following key classifications within the ranges set out below:

[153] The Commission noted that there was inadequate material before it to establish relativities for clerical classifications, 66 and went on to consider the implementation arrangements for the wage increases (referred to as minimum rate adjustments) necessary to give effect its conclusions.67 It stated the objectives of the reforms it wished to implement as follows:

“These exercises provide an opportunity for the parties to display the maturity required to overcome the wage instabilities with which the community is only too familiar. It also provides the opportunity to take an essential step towards institutional reform which is a prerequisite to a more flexible system of wage fixation. As part of that future we envisage that minimum classification rates will not alter their relative position one to another unless warranted on work value grounds.” 68

[154] Later in the decision the Commission discussed whether, in the light of the establishment of the structural efficiency principle, any of the other wage fixing principles should be modified. Critically, the Commission decided that “structural efficiency exercises should incorporate all past work value considerations”. 69 The new Structural Efficiency principle referred to structural efficiency exercises as involving, among other things, creating appropriate relativities between different categories of workers with the award and at enterprise level” and “including properly fixed minimum rates for classifications in awards, related appropriately to one another …”, and expressly required that structural efficiency exercises should incorporate all past work value considerations. A separate new principle was established for the implementation of minimum rate adjustments. However the datum point requirement in paragraph (c) of the Work Value Changes principle was not at this stage modified.

[155] That modification came in the National Wage Case April 1991 70, in which the Commission reaffirmed that “minimum classification rates, once reviewed and fixed in an appropriate relationship, will not be moved from that relative position unless changes are warranted on work value grounds”.71 Consequential upon that position, the Commission determined that any future assessment of change in the nature of work of a particular classification in a future award would be measured from the date of the second structural efficiency adjustment allowable in accordance with the National Wage Case August 1989.72 Hence the Work Value Changes Principle was modified so as to alter paragraph (c) and add a new paragraph (d) (with the following paragraphs correspondingly re-designated) as follows:

“(c) The time from which work value changes in an award should be measured is, unless extraordinary circumstances can be demonstrated in special case proceedings, the date of operation of the second structural efficiency allowable under the 7 August 1989 National Wage case decision.

(d) Care should be exercised to ensure that changes which were or should have been taken into account in any previous work value adjustments or in a structural efficiency exercise are not included in any work evaluation under this principle.”

[156] Subject only to the narrow exception provided by the capacity to mount a “special case”, the effect of this modification was that, once an award had been subject to the structural efficiency process in which, among other things, classification in minimum rates awards were to be fixed in appropriate relativities with other classifications within the award and in other awards, no adjustment on work value grounds was permissible other than on the basis of changes to work which occurred after the structural efficiency exercise had been completed. Importantly, the new paragraph (d) in the Work Value Changes Principle prevented any “double-counting” not only of work changes which were taken into account in the structural efficiency exercise, but those which should have been taken into account, whether they actually were or not. This meant, for example, that the full work value assessment of awards covering female-dominated areas of work which was sought by various women’s groups in the National Wage Case 1983 was permanently foreclosed (subject again only to the limited capacity to advance a special case).

[157] The principles applicable to the proper fixation of minimum rates in awards was the subject of further consideration in the Paid Rates Review decision of a Full Bench of the AIRC issued on 20 October 1998. 73 This review was necessitated by application for the Commission to exercise its discretionary power under item 51(4) of Part 2 of Schedule 5 of the Workplace Relations and Other Legislation Amendment Act 1996 to convert paid rates awards into minimum rates awards by the establishment of properly-fixed minimum rates of pay. The Full Bench determined that, unless there were exceptional circumstances, all paid rates awards should be converted to minimum rates awards (emphasis added):

“We have decided that in principle all awards which provide for rates of pay which are not operating, or not intended to operate, as minimum rates and which do not bear a proper work value relationship to award rates which are properly fixed minima, should be subject to a conversion process so that they do contain properly fixed minimum rates of pay.”

[158] The Full Bench characterised the minimum rates adjustment process which had arisen from the National Wage Case August 1989 in the following terms:

“The MRA principle was designed to establish a consistent pattern of minimum rates in awards covering similar work thereby removing inequities and providing a stable foundation for enterprise bargaining. That objective is as important now, perhaps even more important, than it was in 1989.”

[159] The requirements for the fixation of minimum rates which flowed from the Paid Rates Review decision were summarised by an AIRC Full Bench in Child Care Industry (Australian Capital Territory) Award 1998 74 in the following terms:

“[155] In the context of the matter before us, the principles established in the Paid Rates Review decision mandate a three step process for the determination of properly fixed minimum rates:

1. The key classification in the relevant award is to be fixed by reference to appropriate key classifications in awards which have been adjusted in accordance with the MRA process with particular reference to the current rates for the relevant classifications in the Metal Industry Award. In this regard the relationship between the key classification and the Engineering Tradesperson Level 1 (the C10 level) is the starting point.

2. Once the key classification rate has been properly fixed, the other rates in the award are set by applying the internal award relativities which have been established, agreed or maintained.

3. If the existing rates are too low they should be increased so that they are properly fixed minima.”

[160] In the same decision the Full Bench gave consideration to a claim, advanced under the Work Value Changes principle, for increases to the wages of child care workers. The Full Bench referred to the matter taken into account in assessing changes in work value by Senior Commissioner Taylor in the 1968 Vehicle Industry Award decision (which we have quoted above), and then set out a number of propositions derived from cases decided under the Work Value Changes principle (footnotes omitted):

“[189] The principle makes it clear that changes in work, by themselves, may not lead to an increase in wages. In State Electricity Commission of Victoria v The Federated Ironworkers' Association of Australia (Print G7498), a Full Bench of the Commission expressed this limitation in the following terms:

"In all categories of work except perhaps the most simple, changes become evident with time. It is in the nature of things that new methods of doing the same thing evolve with time, and that skills which qualify a person for a particular category of work may become fully tested, or in some cases the work may thereby be made easier. However it is essential that such changes are not mistaken for genuine work value change."

[190] Previous decisions of the Commission suggest that a range of factors may, depending on the circumstances, be relevant to the assessment of whether or not the changes in question constitute the required "significant net addition to work requirements". The following considerations are relevant in this regard:

  Rapidly changing technology, dramatic or unanticipated changes which result in a need for new skills and/or increased responsibility may justify a wage increase on work value grounds. But progressive or evolutionary change is insufficient.

  An increase in the skills, knowledge or other expertise required to adequately undertake the duties concerned demonstrates an increase in work value.

  The mere introduction of a statutory requirement to hold a certificate of competency does not of itself constitute a significant net addition to work requirements. It must be demonstrated that there has been some change in the work itself or in the skills and/or responsibility required. However, where additional training is required to become certified and hence to fulfil a statutory requirement a wage increase may be warranted.

  A requirement to exercise care and caution is, of itself, insufficient to warrant a work value increase. But an increase in the level of responsibility required to be exercised may warrant a wage increase on work value grounds. Such a change may be demonstrated by a requirement to work with less supervision.

  The requirement to exercise a quality control function may constitute a significant net addition to work requirements when associated with increased accountability.

  The fact that the emphasis on some aspects of the work has changed does not in itself constitute a significant net addition to work requirements.

  The introduction of a new training program or the necessity to undertake additional training is illustrative of the increased level of skill required due to the change in the nature of the work. But keeping abreast of changes and developments in any trade or profession is part of the requirements of that trade or profession and generally only some basic changes in the educational requirements can be regarded, of itself, as constituting a change in work value.

  Increased workload generally goes to the issue of manning levels not work value. But, where an increase in workload leads to increased pressure on skills and the speed with which vital decisions must be made then it may be a relevant consideration.

[191] The principle provides, in paragraph (d), that where a significant net addition to work value has been established an assessment will have to be made as to how that addition should be measured in monetary terms. Such an assessment should normally be based on the previous work requirements, the wage previously fixed for the work, and the nature and extent of the change in work. However, it is open to the arbitrator to make comparisons with other wages and work requirements within the award, and in other awards, provided such comparisons are fair, proper and reasonable in all the circumstances. In particular, regard may be had to the wage increases ascribed to comparable changes in work value in other areas. Care must be taken in relation to making a comparison with a provision found in a consent award.

[161] In the ACT Child Care Decision the Full Bench found that there had been a significant net addition to work requirements since the 1990 datum point such as to satisfy the requirements of the Work Value Changes Principle. The Full Bench also decided that, based on the Australian Qualifications Framework, that minimum pay alignments should be established between the child care awards under consideration and the Metal Industry Award between classifications with equivalent training and qualification levels:

“[181] A central feature of this case is the alignment of the Child Care Certificate III and Diploma levels in the ACT and Victorian Awards with the appropriate comparators in the Metal Industry Award.

[182] We have considered all of the evidence and submissions in respect of this issue. In our view the rate at the AQF Diploma level in the ACT and Victorian Awards should be linked to the C5 level in the Metal Industry Award. It is also appropriate that there be a nexus between the CCW level 3 on commencement classification in the ACT Award (and the Certificate III level in the Victorian Award) and the C10 level in the Metal Industry Award.

[183] In reaching this conclusion we have considered - as contended by the Employers - the conditions under which work is performed. But contrary to the Employers' submissions this consideration does not lead us to conclude that child care workers with qualifications at the same AQF level as workers under the Metal Industry Award should be paid less. If anything the nature of the work performed by child care workers and the conditions under which that work is performed suggest that they should be paid more, not less, than their Metal Industry Award counterparts.”

[162] The Work Value Changes principle established in the National Wage Case April 1991 remained unchanged until wage fixing principles became redundant when the AIRC was stripped of its minimum wage-fixing functions by the Workplace Relations Amendment (Work Choices) Act 2005. The concept of work value then played no part in wage fixation until the enactment of the FW Act in 2009.

[163] It is against that background that the way in which s 156(3) and (4) are properly to be construed and applied may be considered. A number of propositions may be stated in that context. The first is that the effect of s 156(3) is to establish a jurisdictional prerequisite for the exercise of power to vary minimum wages in a modern award in the conduct of a 4 yearly review of modern awards, namely the reaching of a state of satisfaction on the part of the Commission that the variation is “justified by work value reasons”.

[164] Second, because the jurisdictional prerequisite is expressed in terms of the Commission’s “satisfaction” concerning whether a variation is “justified” by the prescribed type of reasons - a requirement which involves an element of subjectivity and about which reasonable minds may differ - it requires the formation of a broad evaluative judgment involving the exercise of a discretion. 75

[165] Third, the definition of “work value reasons” in s 156(4) requires only that the reasons justifying the amount to be paid for a particular kind of work be “related to any of the following” matters set out in paragraphs (a)-(c). The expression “related to” is one of broad import that requires a sufficient connection or association between two subject matters. The degree of the connection required is a matter for judgment depending on the facts of the case, but the connection must be relevant and nor remote or accidental. 76 The subject matters between which there must be a sufficient connection are, on the one hand, the reasons for the pay rate and, on the other hand, any of the three matters identified in paragraphs (a)-(c) – that is, any one or more of the three matters.

[166] Fourth, although the three matters identified - the nature of the work, the level of skill or responsibility involved in doing the work, and the conditions under which the work is done - clearly import the fundamental criteria used to assess work value changes under the wage fixing principles which operated from 1975 to 1981 and 1983 to 2006, the legislature in enacting s 156(4) chose not to import the additional requirements contained in those wage-fixing principle. For example, as was observed in the Equal Remuneration Case 201577 s 156(4) does not contain any requirement that the work value reasons consist of identified changes in work value measured from a fixed datum point. The Full Bench in that matter said:

“[292] … We see no reason in principle why a claim that the minimum rates of pay in a modern award undervalue the work to which they apply for gender-related reasons could not be advanced for consideration under s 156(3) or s 157(2). Those provisions allow the variation of such minimum rates for ‘work value reasons’, which expression is defined broadly enough in s 156(4) to allow a wide-ranging consideration of any contention that, for historical reasons and/or on the application of an indicia approach, undervaluation has occurred because of gender inequity. There is no datum point requirement in that definition which would inhibit the Commission from identifying any gender issue which has historically caused any female-dominated occupation or industry currently regulated by a modern award to be undervalued. The pay equity cases which have been successfully prosecuted in the NSW and Queensland jurisdictions and to which reference has earlier been made were essentially work value cases, and the equal remuneration principles under which they were considered and determined were likewise, in substance, extensions of well-established work value principles. It seems to us that cases of this nature can readily be accommodated under s 156(3) or s 157(2). Whether or not such a case is successful will, of course, depend on the evidence and submissions in the particular proceeding.”

[167] Likewise, s 156(4) did not incorporate the test in the wage-fixing principles that the change in the nature of work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification. In substance, section 156(3) and (4) leave it to the Commission to exercise a broad and relatively unconstrained judgment as to what may constitute work value reasons justifying an adjustment to minimum rates of pay similar to the position which applied prior to the establishment of wage fixing principles in 1975.

[168] Fifth, it would be open to the Commission have regard, in the exercise of its discretion, to considerations which have been taken into account in previous work value cases under differing past statutory regimes. For example, although as already stated s.156(4) contains no requirement for the measurement of work value changes from a fixed datum point, we consider it likely that the Commission would usually take into account whether any feature of the nature of work, the level of skill or responsibility involved in performing the work or the conditions under which it is done has previously been taken into account in a proper way (that is, in a way which is free of gender bias and any other improper considerations) in assessing wages in the relevant modern award or its predecessor in order to ensure that there is no “double counting”. Likewise, we consider that the considerations referred to in paragraph [190] of the ACT Child Care Decision, which we have earlier quoted, may be of relevance in particular cases, as may considerations in other authoritative past work value cases.

[169] Finally, even if the jurisdictional prerequisite in s 156(3) is satisfied, it remains the case that the Commission must, as required by s 138, ensure that the inclusion of the varied minimum wages term in the relevant modern award would be necessary to achieve the modern awards objective and the minimum wages objective. In this connection, it may be noted that the Full Bench in 4 yearly review of modern awards - Real Estate Industry Award 2010 said that where the wage rates in a modern award have not previously been the subject of a proper work value consideration, there can be no implicit assumption that at the time the award was made its wage rates were consistent with the modern awards objective. 78

History of award regulation of pharmacists

[170] There was no federal award regulation of pharmacists prior to 1994. The first federal award was the Community Pharmacy (Victoria) Interim Award 199479 made by the AIRC following the referral by the State of Victoria of its industrial relation powers to the Commonwealth and dispute findings made in 1993. This interim award, made by Drake DP on 27 May 1994, applied only to community pharmacies in Victoria, and replicated the wages and conditions previously prescribed by an award of the former Industrial Relations Commission of Victoria, the Chemist Shops Award (Vic) 1987.

[171] In further proceedings in 1995, outstanding issues concerning the interim 1994 award were arbitrated before Drake DP. The PGA sought, as a first step towards the establishment of a national award, that the interim 1994 award be extensively modified to include a new classification structure (derived from relevant the NSW State award) and adjustments to penalty and overtime rates. These changes were opposed by the Salaried Pharmacists’ Association (SPA). In a decision issued on 30 May 1995, 80 the Deputy President declined to make the major changes to classifications and penalty rates sought by the PGA, but made some other modifications. The new award which resulted was the Community Pharmacy (Victoria) Interim Award 1995.81 There were a number of “leave reserved” matters identified in the award, including classifications, pay and pay relativities, which were to be the subject of subsequent arbitration, however agreement between the industrial parties was not reached.

[172] These outstanding matters were the subject of a hearing before Commissioner O’Shea in the following year, and were determined by him in a decision issued by him on 6 March 1996. 82 The key conclusion in the Commissioner’s decision was that pharmacists covered by the Community Pharmacy (Victoria) Interim Award 1995 should have a classification structure based upon the reference point of pay rates for professional scientists covered by Part IV of the Metal Industry Award 1976. The Commissioner relevantly stated:

“The Commission approaches its determination of this matter in the context of already lengthy proceedings which have produced some measure of agreement and have required some arbitration, but which clearly still have a considerable way to go by reason of the SPA's stated objective of a national award of the Commission covering the retail/community pharmacy sector.

. . .

Of particular significance in regard to this matter is the "first award" principle and the Commission, noting that this award is a minimum rates award, will fix the matters at issue so that the award meets the needs of the particular industry or enterprise while ensuring that employees' interests are also properly taken into account. It is also relevant for the Commission to ensure that appropriate structural efficiency principles are or have been applied. I include here, considerations of proper alignment by way of the application of a minimum rates adjustment process.

When one applies these considerations to the submissions of the parties in these proceedings one can see a degree of similarity but also some clear divergence. What is apparent is that the rates and classification structure of professional scientists (Metal Industry Award 1976 - Part IV) have some legitimacy as a reference point for pharmacists employed under this award.

I say this is apparent because, as the SPA demonstrated, the fact was acknowledged by the Victorian Industrial Relations Commission at an earlier point in the wage-fixing history of this award and the PGA/VECCI submissions in these proceedings acknowledged at least some points of comparison between pharmacists and professional scientists.

. . .

An acceptance of the relevance of Part IV of the Metal Industry Award does not necessarily mean a direct comparison or direct transposition of rates between the two areas of professional skills. It does, however, provide the Commission with a strong reference point for an assessment of appropriate rates.

A further reference point, given the history and likely developments in these proceedings, are rates for like work elsewhere. First award principles allow the Commission to have regard for a variety of factors in assessing what are fair and reasonable minimum rates vis-a-vis other awards and relative skills and responsibilities.

. . .

On the basis of the material before it, the Commission accepts the submissions of VECCI that the base level of Pharmacist (first year of experience) can be aligned with a Professional Scientist (4/5 year course) on the basis of qualifications and the exercise of comparable skills. But a consideration of the duties of a pharmacist compared with the relevant definitions in Part IV of the Metal Industry Award reveals a somewhat higher level of responsibility discharged by a pharmacist dispensing to the public. A direct alignment would produce a rate of 130% of the tradesperson's rate, as contemplated by VECCI, but recognition of the responsibility differential requires a higher rate to be struck.

After consideration of the SPA's submissions, the Commission determines that a fair and reasonable rate for a first year Pharmacist is a relativity of 140% of the tradesperson's rate.

As to the Pharmacist (second year and thereafter) classification, as currently defined in the interim award, there needs to be a recognition of the greater capacities that the accrual of experience brings. The current interim award provides a rate some 7% above the base and the new differential should not be any less than that. At present, under the interim award a pharmacist (thereafter) receives a minimum rate of $571.40 per week which is $35.70 per week above the first year pharmacist minimum rate.

A determination of a relativity of 150% would give a wage differential of some $41 per week. In all the circumstances and taking some guidance from salary patterns for pharmacists in other States, I believe this would be appropriate and the Commission so determines.

In determining the rates above, the Commission notes that they are broadly comparable with the range of rates in other States (Exhibit PGA 2). In the course of its submissions (transcript, page 376) the PGA indicated a preparedness to look at the 140/150 end of the relativities provided current penalty rates were varied in the Guild's favour. This matter is addressed later in this decision.

Rates for the supervisory levels within the classification structure can then be properly set by broadly aligning the two higher classifications in the interim award with Professional Scientist Level 3 and Professional Scientist Level 4 respectively from Part IV of the Metal Industry Award.

Given the Commission's acceptance of retaining a tiered structure to reflect differences in the size and characteristics of businesses within the industry, the top tier of the Pharmacist-in-charge (as presently defined in the interim award) can be aligned with the Professional Scientist Level 3 rate at $767.00 per week which is a relativity of 180% of the tradesperson's rate.

It is appropriate to keep some differential between the Pharmacist (thereafter) rate and the bottom tier of the Pharmacist-in-charge, which the Commission determines will be set at 160%. The middle tier of the Pharmacist-in-charge (as currently defined) is determined to be set at a relativity of 170%.

The rates determined above are higher at the lower tiers than those advocated by VECCI but are capped at the top tier as advanced in Exhibit VECCI 2. The rates set a relativity of 160%, 170% and 180% for the three tiers of Pharmacist-in-charge as currently defined in the interim award and are broadly comparable with the interstate comparisons drawn to the Commission's attention in Exhibit PGA 2.

As to the classification of Pharmacist Manager, the same considerations apply. The definitions and structure in the interim award will be retained and the top tier of the classification will be aligned with the rate of $892.10 per week (a relativity of 210%) for the Professional Scientist Level 4 in Part IV of the Metal Industry Award.

To retain a differential above the top tier of the Pharmacist-in-charge, the bottom tier of the Pharmacist Manager (as currently defined in the interim award) is determined to be a relativity of 190%, with the middle tier (as currently defined) being 200%.

. . .

In summary, the Commission determines that the Victorian award should have salary levels based on the relativities of the metal tradesperson's rate as follows. In all cases, the existing definitions in the interim award will be carried over.

Pharmacist (1st year) 140%

Pharmacist (2nd year and thereafter) 150%

Pharmacist-in-charge

(i) 160%

(ii) 170%

(iii) 180%

Pharmacist Manager

(i) 190%

(ii) 200%

(iii) 210%” 83

[173] We interpolate at this point that the classification structure for professional scientists in Part IV of the Metal Industry Award that was used as the reference point in the above decision was established pursuant to the structural efficiency principle and by consent of the parties in a decision of Deputy President Keogh of 7 May 1990. 84 The new structure created for professional scientists aligned them with the classification structure in Part 1 of the Metal Industry Award, and established percentage relativities with the C10 classification, as shown in the following table.

[174] One thing is immediately apparent from the above table: professional scientists below Level 3, who require an undergraduate degree, were not aligned with the Part 1 structure on the basis of their qualifications and were not assigned the C1 classification with a starting relativity of 180%. The effect of Commissioner O’Shea’s decision to set rates for pharmacists based on professional scientists effectively imported this difficulty into the Community Pharmacy (Victoria) Interim Award. Thus, for example, the base level, degree-qualified pharmacist was assigned a 140% relativity to the C10 classification. This lined them up at below the C3 classification, which was the starting point for an employee with an Advanced Diploma under Part 1 of the Metal Industry Award.

[175] The first national community pharmacists’ award, the Community Pharmacy Award 1996, was made by consent on 24 December 1996 by Commissioner O’Shea. 85 The classifications and rates of pay in this award differed for each State and Territory and reflected the awards applicable in each State and Territory at the time. This award was subsequently the subject of review in 1998 pursuant to the “award simplification” provisions of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth). The review required, among other things, that the Commission ensure the award contained proper fixed minimum rates of pay. The parties negotiated a new award containing an agreed classification structure for all states and territories except Western Australia,86 and the new Community Pharmacy Award 1998 was made by Commissioner Hingley on 29 June 1998.87 The agreed classification structure modified that previously determined by Commissioner O’Shea contained for the Community Pharmacy (Victoria) Interim Award by adding a classification of “Experienced Pharmacist”, but apart from this the structure and the relativities used broadly reflected that developed in the 1996 decision.

[176] When the Pharmacy Award was developed as part of the award modernisation process conducted pursuant to Part 10A of the Workplace Relations Act 1996 (Cth), the classification structure adopted simplified that contained in the Community Pharmacy Award 1996. The classification “Pharmacist after first year of experience” was removed, as were the higher grade 1 and grade 2 rates in both of the classification of “Pharmacist in Charge” and “Pharmacist Manager”. The remaining classifications, and their existing rates and relativities, were carried over to the Pharmacy Award. The classification structure has not since been modified, and the rates of pay have been adjusted in accordance with Annual Wage Review decisions.

Consideration of the APESMA Case

[177] The APESMA advanced its case primarily on the basis that the Pharmacy Award and its predecessor, the pre-modern Community Pharmacy Award 1996, had last been the subject of work value consideration in 1998, and that changes in the nature of the work and the level of skill and responsibility of community pharmacists since that time justified the wage increases it sought. In essence the APESMA’s case was structured on the basis of a datum point even though, as earlier explained, that was not a necessary element for satisfaction of the jurisdictional prerequisite in s 156(3). In closing submissions, counsel for the APESMA submitted that the task for the Commission was to assess the work value of pharmacists under the Pharmacy Award as it was at the time of the assessment, not whether there had been a change in work value. That is an approach available under s 156(3) as we have earlier construed it, but it is not fundamentally consistent with the evidentiary case presented by the APESMA. We will first address the case actually advanced by the APESMA, and then give consideration to some broader issues concerning the work value of pharmacists.

[178] It is necessary at the outset to make some comment upon the witness evidence given in the course of the proceedings. We consider that all of the witnesses before us endeavoured to give us truthful and accurate information about the work of pharmacists, but the utility of their evidence differed. Firstly, we consider that the witnesses called by the PGA - Ms Willis, Mr Pricolo and Mr Loukas - gave evidence of significant probative value. They had all worked in the community pharmacy industry since well before 1998, had been employed as pharmacists before becoming pharmacy owners, and had the benefit of a broad perspective drawn from operating pharmacies employing numbers of pharmacists over long periods of time. It is not clear that any of them would be affected by the success of the APESMA’s claim: Ms Willis’ pharmacies were not covered by the Pharmacy Award since they remained in the Western Australian industrial relations system, and Mr Pricolo’s and Mr Loukas’s pharmacies paid above-award wages to their pharmacists. In relation to the APESMA’s lay witnesses, Ms Malakozis, Ms Madden, Ms McCallum and Mr Yap were able to give evidence concerning their experiences as employed pharmacists over long periods of time, pre-dating 1998 in the case of all of them except Mr Yap, and thus were able to give a proper longitudinal description of changes to their work. However, their perspective was necessarily narrower since they could only give evidence concerning their personal experiences and not those of any broader group of pharmacists. The evidence of Ms Thomson, Mr Walls and Ms Le was of lesser utility because of the comparatively short time they have worked in the profession. Further, they gave evidence that was not necessarily consistent with the APESMA’s case; for example Mr Le, who was registered as a pharmacist only in 2011, gave evidence that when he commenced practice his role was predominantly dispensing medicines and that the change relied upon had occurred since that time. This evidence was inconsistent with that of other of the APESMA’s witnesses, who described the change as having occurred earlier over a longer period of time.

[179] The two-part expert Report prepared by Professors Krass and Aslani was problematic in a number of respects. They were commissioned by the APESMA to prepare a report analysing changes in the work value of pharmacists since 1998, and the instructions provided to them by the APESMA gave what we consider to be an accurate summary of the nature of the proceedings currently before the Commission and the process by which work value was to be assessed in the industrial context. It is far from clear to us that the Report was properly responsive to those instructions. The first part of the Report in particular was expressly stated to be concerned only with the delivery of “cognitive pharmaceutical services” and did not attempt to undertake a holistic analysis of the work value of pharmacists, noting that it was part of the PGA’s case that some elements of pharmacists’ work associated with the prescription of medicines had become less onerous. Further, it is apparent that the first part of the Report took a heterodox view of work value, in that the “value” of pharmacists’ work was primarily analysed by reference to its value to the community and the health outcomes it produced rather than being concerned only with the nature of the work and the level of skill and responsibility being exercised. The second part of the Report was based on interviews with a sample of pharmacists, but if suffered from the defects that, first, what was obtained from the interviews was necessarily in the nature of subjective perceptions rather than objective information and, secondly, the nature of the work experience (such as the length of time spent in the profession) of the interview participants was not provided. Nonetheless the Report as a whole contained a great deal of useful information concerning new programs and services in the pharmacy industry and the extent to which individual pharmacists were involved in the delivery of those.

[180] The expert evidence of Professor Clarke provided a valuable overview of the highly regulated nature of the pharmacy industry, but was unable to answer the question posed to him by the APESMA concerning whether the grant of its claim would have a significant negative impact of the financial sustainability of community pharmacies – a question which, it seems to us, could not be answered without him being provided with or having access to data about the extent to which the market wage rates for pharmacists exceed the minimum award rate. Data of that nature was provided in the evidence given by Mr Crowther concerning the surveys conducted for the APESMA. Those surveys gave evidence concerning market rates for pharmacists which we accept, noting that the results of those surveys (showing a decline in market rates over the last five years) were confirmed by the UTS Pharmacy Barometer (discussed in the first part of the Report of Professors Krass and Aslani). Finally, the evidence of Dr March described developments in policy affecting the pharmacy profession and in the training of pharmacists over the last 30 years. We accept as accurate his description of those developments, but not necessarily some of the inferences he sought to draw from those developments.

[181] The evidence adduced by the APESMA referred to a large number of discrete changes which it will be necessary for us to deal with separately later, but the APESMA’s overarching case was that there had been a paradigm shift in the work of pharmacists since 1998 from the traditional role of simply dispensing medicines for the treatment of particular illnesses to a patient-centred approach in which the pharmacist operates as part of an integrated health care team treating the entirety of the patient’s condition through the provision of a wide range of primary and preventative health care services and through direct interaction with the patient. It is apparent that the case was advanced in that overarching way in order to justify the scale of the wage increases sought. We will deal with this overarching case first.

[182] We are not satisfied that there has been a fundamental change in the nature of the work of pharmacists since 1998, or in their skills or level of responsibility, in the way suggested by the APESMA. We consider that the evidence, considered as a whole, demonstrates the following propositions:

(1) The main function of the pharmacist has always been, and remains, the dispensing of prescription medicines. However over time (both before and after 1998) there has been a decline in the proportion of time spent on this work. There have been a number of reasons for this. The process of issuing prescriptions, and making PBS claims in respect of such prescriptions, has speeded up and been simplified due the transformation effected by information technology. That this has been the case is a matter of everyday observation, although it was confirmed by the evidence of the PGA’s witnesses Ms Willis, Mr Pricolo and Mr Loukas, and also to some extent by the APESMA’s witnesses Ms Malakozis, Ms Madden and Ms McCallum and in the second part of the Report of Professors Krass and Aslani. As the federal government has over some decades attempted to control the cost of PBS medicines, issuing prescriptions has become relatively less profitable than it was before and has forced pharmacies to seek revenue and profit from other areas of activity. Additionally, the compounding of prescription medicines has virtually ceased (except in some specialist compounding pharmacies), and in addition the preparation of extemporaneous medicines now rarely occurs. Again, this position was made clear in the evidence of the PGA’s witnesses, and was either supported or not contradicted by the APESMA’s witnesses.

(2) This relative decline in the work of dispensing prescriptions has allowed pharmacists to spend a greater proportion of their time in providing other services to and interacting with patients, and the regulatory framework in which pharmacies operate has encouraged and incentivised this process, consistent with the philosophy articulated by the QUM policy. In the latter respect, the Community Pharmacy Agreements - particularly the Third, Fourth and Fifth CPAs - introduced a number of programs which funded the provision of a range of professional services to the community. All the witnesses to varying degrees gave evidence supporting this proposition.

(3) However, it does not follow that the nature of the work of community pharmacists or their skills or responsibilities have fundamentally changed since 1998 because of the developments described above. Rather, this is a case where, by and large, pharmacists have as a consequence of these developments been required to perform certain work and exercise certain skills more intensely and more frequently than they did.

(4) Interaction and dialogue with patients concerning medicines to be dispensed, including the proper use of medicines and their effects, and the use of “soft” personal and communication skills in doing so, was a feature of pharmaceutical practice in 1998 and remains so today. Ms Malakozis and Ms McCallum as well as Ms Willis, Mr Pricolo and Mr Loukas described interacting with patients and providing them with information about their prescriptions before 1998, and this is consistent with everyday experience. The degree to which patient interaction occurs has always varied from pharmacy to pharmacy depending on business/retailing model that is used, but it certainly cannot be accepted that this was a new class of work or a new skill that was introduced at some time after 1998. We note Dr March’s evidence that university undergraduate courses for pharmacists have added new subjects to the curriculum related to the use of such “soft” skills, but there was imprecision about when this occurred, and it is not clear to us that this was not part of the normal evolution of university courses rather than a radical change required by new developments in the profession. It may be accepted that greater accessibility to information about medications and patients’ medication histories through the use of information technology has added to the therapeutic value of patient interactions, but we do not consider that there has been any intrinsic change to the nature of this work or the skills exercise.

(5) Diagnosis and advice as to the treatment of minor ailments such as colds and flu, minor aches and pains, allergies, skin irritations, cuts and abrasions, and referrals to medical practitioners if necessary, is not new and was a feature of pharmacy practice in 1998. We accept the evidence of Ms Willis, Mr Pricolo and Mr Loukas in this respect, which was not the subject of any substantial contradiction on the part of the APESMA’s pharmacist witnesses. The degree to which this occurs is likely to have increased as a result of the greater accessibility of pharmacists to the public and a concomitant growth in expectations of the availability of such advice on the part of pharmacy customers, but there is no new work or skills involved.

(6) The introduction of federal-government funded programs for the provision of patient services through the Community Pharmacy Programs is not necessarily to be understood as signifying the introduction of new work or a requirement for pharmacists to learn new skills. We think the evidence supports the proposition that many of these programs provided funding to support the systematised provision of services that were already provided by pharmacists free of charge and on an ad-hoc basis. For example, we accept Ms Willis’ evidence that the MedsCheck and Diabetes MedsChecks programs, which were introduced as part of the Fifth CPA and involve a systematised in-pharmacy review of a patient’s medicines, represent a formalisation of work which was performed informally before. The skills required to be exercised, including understanding how medications may interact with each other, communicating to patients about the proper use, effects and storage of medicines, and identifying and responding to problems that may have arisen in the use of medication, are not new and were exercised by pharmacists in 1998 and before. Likewise, we accept the evidence of Mr Pricolo and Mr Loukas that clinical interventions, which are the subject of a formal funding program introduced in the Fifth CPA and involve the identification of any medication-related problem in a patient and the making of a recommendation to the relevant medical practitioner about how to resolve it, are not new, with the change being that they are now recorded for funding purposes and their performance thereby encouraged. That they are not new is confirmed by the text of the Fifth CPA itself, which (as earlier set out) provides that the applicable program had the purpose of increasing the number of clinical interventions provided and documented.

[183] In summary, we consider that although the mix of work being performed and skills being exercised has changed since 1998, and some skills for which pharmacists have always been trained are not utilised in a more intense and systematised fashion, there has not been the fundamental change in the work of pharmacists since 1998 which would justify wage increases of the order claimed by the APESMA.

[184] It is next necessary to determine whether any of the work changes relied upon by the APESMA, considered individually, would justify any increase in the wage rates for pharmacists in the Pharmacy Award for work value reasons. We have already, in the context of our consideration of the APESMA’s overarching case, rejected the proposition that there has been any change in the work value of pharmacists because of the QUM, greater interaction and communication with patients, the diagnosis and treatment of minor ailments, the MedsCheck program, or clinical interventions. We have reached the same conclusion, with one qualification to which we will return concerning the level of responsibility and accountability of pharmacists, about the following matters relied upon by the APESMA:

  Dose administration aids: The Fifth CPA financially supported the provision of DAAs in order to maximise the safe and effective use of medicines, but this did not represent the introduction of a new form of work or require the exercise of any new skill. We accept the evidence of Mr Loukas and Mr Pricolo that DAAs have existed since at least 1998, although their form and the extent of their usage has changed.

  QCPP: This has not in itself required new work or new skills, but has only involved a standardised quality assurance methodology.

  Blood pressure and blood glucose tests: These are not new and were offered in at least some pharmacies in 1998 and before. Blood pressure tests are not even necessarily administered by pharmacists.

  Medical certificates: It is clear that this service, which is offered at some but not all pharmacies on a fee-for-service basis, is new, having commenced in about 2009. However the evidence does not establish that this requires the exercise of any new skill by pharmacists; in particular the evidence did not suggest that the pharmacist is required to actually diagnose the person requesting the certificate on the basis of any form of medical examination as a medical practitioner would.

  Weight management services and smoking cessation services: These services have expanded but are not new, and on the evidence largely involve an explanation of available products for treatment.

  Asthma and diabetes management: We accept the evidence of Ms Willis, Mr Pricolo and Mr Loukas that this work had been performed in 1998 and before, and that any change was confined to understanding and providing information concerning new and updated medications, equipment and treatment methods.

  Sleep apnoea services: The limited evidence on this topic suggests that only a minority of pharmacies provide this service, and although it involves the provision of information and assistance concerning treatment technology which had been developed since 1998, the underlying condition had always been dealt with in undergraduate pharmacy courses.

  Continuing professional development: It is fundamental that any professional must engage in continuing and self-driven education and development in order to stay abreast of new knowledge, technology and other changes in the profession. It is a defining feature of a profession. Accordingly the introduction of CPD requirements merely formalised and systematised something that was (or should have been) already occurring.

  Staged supply of medicines: This program involves the management of patients who, because of mental illness, addictions or other problems have difficulty in managing their medications. The very limited evidence about this does not demonstrate that involves entirely new work (in the sense that pharmacist have always had to interact with and manage the medication needs of patients with these difficulties) or the exercise of new skills.

  Workload and patient profile: The evidence that the overall workload of pharmacists has risen did not rise above the anecdotal level. We find persuasive the evidence of Ms Willis that where the workload of individual pharmacists might be characterised as excessive, it was generally the result of business decisions made by some pharmacy owners to artificially limit or reduce the number of staff to deal with cost and competitive pressures rather than because of any inherent change in the nature of the work. The evidence of Professor Clarke was that there had been, over some decades, a doubling of the number of persons per pharmacy due to the location and ownership rules preventing new entrants into the industry. However it cannot be concluded from this that the workload of pharmacists has concomitantly increased; it is clear that there have been significant increases in the dispensing productivity of pharmacists due to information technology, and the number of pharmacists has grown even though the restrictive arrangements preserved by the PGA and the federal government in the CPAs have stopped the number of pharmacies from growing. The demographic of an ageing and progressively more obese population has undoubtedly led to more prescriptions being issued per person and an increased need to manage chronic disease and multiple medications for co-morbidities, but again it is difficult to conclude from this that the workload of individual pharmacists has increased have regarded to the productivity improvements to which we have referred.

  Increase in use of complementary medicines and vitamins: The evidence does not establish that this involves any new work, skills or training.

  Clozapine clinics: The limited evidence on this topic does not satisfy us that this constitutes an increase in work value for pharmacists generally. It appears to involve the information checking and recording functions which do not involve the exercise of any new skills, and the duties appear only to be undertaken by a minority of pharmacists.

  Four-year undergraduate degrees: The evidence demonstrates that the move from three to four-year undergraduate degrees commenced well before 1998, although it became universal after 1998. We will consider the significance of the requirement of a four-year degree to the wage rates for pharmacists in the Pharmacy Award in a somewhat different context later in this decision.

  Internship requirements: The evidence demonstrated that the requirements for the completion of a pharmacist’s internship, being a prerequisite for registration as a pharmacist, have become more onerous and rigorous. However this is a matter external to the work of pharmacists and does not constitute a change to the qualifications necessary to become a pharmacist.

[185] We are satisfied that the APESMA has demonstrated that there is an increase in work value associated with the introduction of Home Medicine Reviews and Residential Medication Management Reviews that justified a discrete adjustment to award remuneration. We have reached that conclusion for the following reasons:

(1) The performance of these duties requires the higher qualification of Accredited Pharmacist, which may only be obtained after undertaking a training course and successfully completing a communication module, an examination and four case studies.

(2) The performance of HMRs and RMMRs occurs in the patient’s home or aged care residence - that is, a different work environment involving the exercise of distinct personal interaction skills – and must be conducted in coordination with the patient’s medical practitioner.

(3) There is an entirely new level of responsibility in terms of both medical outcomes and the claiming of CPA funding.

[186] However, we do not agree that an entirely new classification of Accredited Pharmacist, as proposed by the APESMA, is either necessary or warranted. Registered pharmacists at any classification level may become Accredited Pharmacists, and any increased remuneration should operate as an equal increment to whatever may be the pharmacist’s classification rate. Further, the holding of the qualification of Accredited Pharmacist does not in itself mean that the employer requires the performance of HMRs and/or RMMRs, and the evidence shows that many pharmacies do not engage in this work. These considerations support the conclusion that the appropriate course is to establish an allowance for Accredited Pharmacists who are required by their employer to perform HMRs and/or RMMRs. We consider that the establishment of such an allowance would be consistent with and necessary to achieve the modern awards objective in s 134(1), in that it is required in order for there to be a fair and relevant safety net for pharmacists performing HMRs and RMMRs. In reaching that conclusion we have taken into account all the matters specified in s 134(1)(a)-(h); each of those matters we consider to be neutral considerations. We consider for the same reason that such an allowance is necessary to achieve the minimum wages objective in s 284(1), to the extent applicable; in that respect we consider the matters identified in s 284(1)(a)-(e) to be neutral considerations.

[187] We propose to invite further submissions about the form of this allowance (such as whether it should be an annual or weekly allowance or an allowance payable each time a HMR or RMMR is performed) and its quantum.

[188] In addition, we are satisfied that, in respect of some of the matters raised in the APESMA’s case, there has been some increase in the work value of pharmacists since 1998, These matters are as follows:

  Inoculations: The work of actually administering an inoculation by injection is new work introduced in recent years involving the exercise of a discrete new skill, and requires the completion of additional approved study, the maintenance of authority to immunise, and the holding of statements of proficiency in cardiopulmonary resuscitation and first aid.

  Emergency contraception: The provision of emergency contraception, as Mr Yap explained in his evidence, requires not just the usual tasks of ensuring that the issue of the medication would be appropriate, safe and effective, but may also require analysis, advice, assistance and referral in cases where the patient is underage or may have been the victim of a sexual assault. We accept Mr Loukas’ evidence that this is new work and involves an increase in accountability and responsibility.

  Downscaling of medicines: The downscaling of significant numbers of medications from prescription-only to Schedule 3 pharmacy-only medicines has increased the work value of pharmacists because it requires the pharmacist, in addition to dispensing the drug, to take on the functions previously exercised by a medical practitioner of diagnosing the patient and determining that issuing the medication would be a safe and effective medical response.

  General increase in the level of responsibility and accountability: While, for the reasons earlier stated, we have not generally accepted that the work and skills associated with patient programs established and funded under the CPAs has led to an increase in work value, we consider that the requirement for pharmacists to document these activities for the purpose of receiving funding and measuring outcomes represents a new required level of accountability and responsibility on the part of the pharmacist. Both the APESMA witnesses and the PGA witnesses acknowledged that this documentation requirement had not previously been a responsibility of pharmacists in 1998 when the relevant services had been provided on an informal and ad hoc basis.

[189] We will invite the parties to make further submissions as to how the above findings should be reflected in an adjustment to remuneration, noting that the evidence demonstrates that not all pharmacists administer inoculations or dispense emergency contraception. It may be necessary for the consideration of this matter to occur in the context of the matters raised in the next part of our decision.

[190] Finally, it is necessary to deal with the alternative limb of the APESMA’s case, namely that the relativities between pharmacists and the C10 tradespersons rate in the Metal Industry Award established in Commissioner O’Shea’s 1996 decision should be re-established by reference to the current C10 rate in the current Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award) because that was the basis upon which the work value of pharmacists was fixed when the Community Pharmacy Award was made in 1998. It is not in dispute that those relativities have become compressed as a result of flat dollar increases in Safety New Reviews and Annual Wage Reviews from the time the Community Pharmacy Award was made (and indeed from 1993) through to 2010. That means, for example, that the commencing classification of a Pharmacist, which was intended to have a relativity of 140% compared to the C10 rate, now has a relativity of only 123%. 88

[191] It may be accepted that where the work value of a classification has been assessed on the basis of a relativity relationship with the C10 classification in the Metal Industry Award, and that relationship has not been sustained so that the current wage rate for the classification no longer reflects its originally assessed work value, that would constitute a work value reason as defined in s 156(4). The question is whether it is a work value reason that would justify the variation to minimum wages in the Pharmacy Award sought by the APESMA. We consider that it is not. The compression of relativities was the intended effect of the award of flat dollar increases to awards, in that it was considered appropriate to adopt an approach to improve the relative position of lower-paid award-wage workers and to depress that of higher-paid award-wage workers. This may be illustrated by the following passage in the 2009-10 Annual Wage Review decision, the last in which a flat-dollar increase was awarded:

“[336] We consider there is a strong case for a percentage adjustment to all modern award minimum wages. While not all award-reliant employees are low paid, uniform dollar increases reduce the relevance of the safety net at the higher award levels and erode the real value of award wages at most levels. These are particularly important considerations at the commencement of the modern awards system. Nevertheless most of the major parties supported a dollar increase rather than a percentage one.

[337] With some hesitation we have decided on a dollar increase. There are two reasons. The first is that to the extent there is a choice between a percentage increase benefiting the higher levels and a dollar amount benefiting the lower levels we think that the current circumstances favour a greater benefit for the lowest paid. We are required in particular to take the needs of the low paid into account. In light of the fact that award-reliant employees have not had an increase in wages since 2008, it is desirable that we increase award rates by the largest amount consistent with the statutory criteria. Secondly, we have very little data concerning the impact of a percentage increase on costs and employment. We have insufficient information to be confident that a percentage increase would not have disproportionate effects on employment at the higher award levels…”

[192] It may also be noted that this position was one urged by the union movement over a long period of time. Because flat-dollar increases were applied across all awards, the compression of relativities has occurred across the entire award wages system. We do not think that there is any proper basis to attempt to unwind now, in one award only in response to a claim by a single union, a common approach to the adjustment of wages which was taken for deliberate policy reasons with the support of the union movement as a whole. It is obvious, in addition, that if the approach now urged by the APESMA was taken in relation to the Pharmacy Award, there would be no logical reason why this would not sought to be flowed on to every other modern award, with ramifications that need not be spelled out.

[193] Accordingly the alternative basis for the APESMA’s claim is rejected. However we give some further consideration to the issue of pharmacists’ relativities with the C10 rate, and other rates, in the Manufacturing Award in the next part of this decision.

Relativity between Pharmacist Rates and Manufacturing Award Rates

[194] The following table sets out the relative position concerning rates of pay, original relativity with C10 and qualifications as between relevant classification in the Manufacturing Award and the Pharmacy Award (noting that completion of a four-year undergraduate degree and a one-year internship is necessary to qualify for the base Pharmacist grade in the Pharmacy Award):

[195] The above relativities do not align for equivalent qualifications, reflecting the difficulty arising from the original use of professional scientists as a reference point. Nor do they consistently relate to the Australian Qualifications Framework (AQF), which ranks educational qualifications above the completion of the Senior Secondary Certificate of Education in ten levels as follows:

Level 1 – Certificate I

Level 2 – Certificate II

Level 3 – Certificate III

Level 4 – Certificate IV

Level 5 – Diploma

Level 6 – Advanced Diploma, Associate Degree

Level 7 – Bachelor Degree

Level 8 – Bachelor Honours Degree, Graduate Certificate, Graduate Diploma

Level 9 – Masters Degree

Level 10 – Doctoral Degree

[196] It can be seen, for example, that the rate of pay for a Pharmacy Intern, First half of training, who must possess a bachelor degree and is thus at Level 7 of the AQF, is lower than that of classification C8 in the Manufacturing Award, who is at Level 3 in the AQF. Similarly the base grade Pharmacist, who is at Level 7 in the AQF, is paid less than the C3, who is at Level 6 in the AQF.

[197] This outcome appears to be inconsistent with the principles stated and the approach taken concerning the proper fixation of award minimum rates in the ACT Child Care Decision, to which we have earlier made reference. However we note that the ACT Child Care Decision was made under a different statutory regime and pursuant to wage-fixing principles which no longer exist.

[198] This matter may potentially constitute a work value consideration relevant to the 4 yearly review of the Pharmacy Award. In the conduct of the review, the Commission is required to discharge its functions under s 156(2) and is not confined to matters raised by interested parties. We will as a first step invite further submissions from interested parties concerning this matter. We will then consider what course, if any, should be taken. One possibility is that this aspect of the review may need to be referred back to the President of the Commission for consideration as to the procedural course to be taken pursuant to s 582, since the matter raised may have implications for other awards of the Commission, including but not limited to the Professional Employees Award 2010.

Next step

[199] Interested parties may file further written submissions pursuant to paragraphs [187], [189] and [198] within 28 days of the date of this decision.

scription: Seal of the Fair Work Commission with the member's signature.

VICE PRESIDENT

Appearances:

M. Irving QC and F. Knowles of Counsel for the Association of Professional Engineers, Scientists and Managers, Australia.

M. Seck of Counsel for the Pharmacy Guild of Australia

Hearing details:

2018.

Sydney:

7 – 11 May.

Printed by authority of the Commonwealth Government Printer

<PR703187>

 1   C1790 Dec 727/98 M Print Q2258

 2   Part I of Report entitled “Work Value of a Community Pharmacist”, Exhibit 14; Part II of Report Entitled “Work Value of a Community Pharmacist Part II: Semi-structured interviews”, Exhibit 15

 3   Transcript at PN1890-PN1893.

 4   See Report of Professor Philip Clarke and associated documents, Exhibit 11

 5   Statement of Dr Geoffrey March dated 21 December 2017, Exhibit 1

 6   Reply Statement of Dr Geoffrey March dated 30 April 2018, Exhibit 2

 7   See Statement of Amy Thomson dated 10 December 2017, Exhibit 4

 8   See Statement of Cameron Walls dated 15 December 2017, Exhibit 5

 9   See Statement of Katerina Malakozis dated 20 December 2017, Exhibit 6

 10   See Statement of Cardin Lee dated 13 December 2017, Exhibit 7

 11   See Statement of Leon Wai Hon Yap dated 18 December 2017, Exhibit 8

 12   See Statement of Jennifer Ruth Madden dated 14 December 2017, Exhibit 9

 13   See Statement of Carmel McCallum dated 18 December 2017, Exhibit 12

 14   See Statement of Alex Crowther dated 13 December 2017, Exhibit 17

 15   Reply Statement of Alex Crowther dated 1 May 2018, Exhibit 18

 16   See Statement of Natalie Willis dated 18 April 2018, Exhibit 24

 17   See Statement of Angelo Pricolo dated 18 April 2018, Exhibit 21

 18   See Statement of Nicholas Loukas dated 19 April 2018, Exhibit 22

 19   [2018] FWCFB 4984 at [52]

 20   Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [38], (2017) 253 FCR 368 at [38], (2017) 272 IR 88 at [38]

21 Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [35], (2012) 219 IR 382 at [35]

22 [2017] FWCFB 1001 at [128]; Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [41]–[44], (2017) 253 FCR 368 at [41]-[44], (2017) 272 IR 88 at [41]-[44]

 23   [2018] FWCFB 3500 at [21]-[24].

 24   Edwards v Giudice (1999) 94 FCR 561 at [5]; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121 at [81]-[84]; National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [56], (2014) 244 IR 461

 25   Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [33], (2017) 253 FCR 368 at [33], (2017) 272 IR 88 at [33]

 26   National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [105]-[106]

 27   See National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [109]-[110]; albeit the Court was considering a different statutory context, this observation is applicable to the Commission’s task in the Review

 28   Ibid at [28]-[29]; Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [49]

 29   Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [48]

 30   CFMEU v Anglo American Metallurgical Coal Pty Ltd [2017] FCAFC 123 at [23]; cited with approval in Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [45]

 31   See generally: Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR 227

 32   Ibid at [46]

 33   (1921) 15 CAR 297 at 303-4

 34   (1967) 121 CAR 587 at 677

 35   (1968) 124 CAR 295 at 308

 36   Ibid

 37   (1967) 121 CAR 587 at 679

 38   (1968) 124 CAR 295 at 308

 39   (1972) 147 CAR 172

 40   (1969) 127 CAR 1142

 41   (1972) 147 CAR 172 at 179-180

 42   (1975) 171 CAR 79

 43   Ibid at 83

 44   Ibid at 83

 45   Ibid at 83-4

 46   (1976) 177 CAR 335

 47   (1976) 176 CAR 17 at 17

 48   (1979) 231 CAR 388

 49   Ibid at 343

 50   (1980) 233 CAR 365

 51   Ibid at 372. The whole incident is described in the context of Staple J’s career on the bench in an article by Michael Kirby, The Removal of Justice Staples and the Silent Forces of Industrial Relations, (1989) 31 JIR 334

 52   (1983) 4 IR 429

 53   Ibid at 451

 54   Ibid at 441

 55   Ibid at 472-3

 56   (1986) 13 IR 108

 57   Ibid at 113

 58   (1988) 25 IR 170

 59   (1989) 27 IR 196

 60   Ibid at 199-200

 61   Ibid at 200

 62   Ibid at 200-201

 63   (1989) 30 IR 81

 64   Ibid at 81, 84

 65   Ibid at 94

 66   Ibid at 94

 67   Ibid at 95-96

 68   Ibid at 96

 69   Ibid at 99

 70   (1991) 36 IR 120

 71   Ibid at 160-161

 72   Ibid at 172

 73   Print Q7661

 74   PR954938

 75   See e.g. Buck v Bavone (1976) 135 CLR at 118-119 per Gibbs J; Coal and Allied v AIRC (2000) 203 CLR 194 at [18]-[20], [28] per Gleeson CJ, Gaudron and Hayne JJ

 76   Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 at 387 per McHugh, Gummow, Kirby and Hayne JJ

 77   [2015] FWCFB 8200, 256 IR 362

 78   [2017] FWCFB 3543 at [80]

 79   Print L413

 80   Print M2399

 81   Print M6246

 82   Print M9831

 83   Ibid at p 4-8

 84   Print J2540; see also the consequential order in Print J3512

 85   Print N7370

 86   There was a separate and simplified classification structure for Western Australia.

 87   Print Q2258

 88   The current weekly wage rate for a Pharmacist under the Pharmacy Award is $1033.40. The current C10 classification weekly wage rate under the Manufacturing and Associated Industries and Occupations Award is 837.40.

 89   190% is the original relativity for the Pharmacist Manager Grade 1 classification, which became the Pharmacist Manager classification in the Pharmacy Award.

 90   160% is the original relativity for Pharmacist in charge Grade 1 classification, which became the Pharmacist in charge classification in the Pharmacy Award.

 91   140% is the original relativity for a Pharmacist in their first year of experience.