PN1

JUSTICE ROSS: Can I have the appearances, please? Firstly, in Sydney, starting from the left and the middle. Don't stand up, though, because you will move away from the microphone and people interstate have trouble hearing you.

PN2

MR CLARKE: It's Mr Clarke. I'm appearing with the SDA and HSU.

PN3

MS L SVENDSEN: Svendsen, Leigh, appearing for the Health Services Union, thank you, your Honour.

PN4

JUSTICE ROSS: Thanks, Ms Svendsen.

PN5

MS K BIDDLESTONE: Biddlestone, K, appearing on behalf of the SDA, thank you, your Honour.

PN6

MS J LIGHT: Light, initial J, on behalf of the Pharmacy Guild of Australia and with me at the Bar table is Mr Harris, initial S.

PN7

MS K THOMSON: Thomson, initial K, for ABI and New South Wales Business Chamber, your Honour.

PN8

JUSTICE ROSS: Thanks. In Melbourne?

PN9

MS J BAULCH: Yes, thank you, your Honour, Baulch, initial J, appearing for APESMA.

PN10

JUSTICE ROSS: Thank you.

PN11

MR M RIZZO: Yes, your Honour, Rizzo, M, on behalf of the ASU.

PN12

JUSTICE ROSS: Thank you. In South Australia?

PN13

MS K VAN GORP: Van Gorp, initial K, appearing for Business SA.

PN14

JUSTICE ROSS: Thank you. Anybody else? You have been provided with or it's been published a summary of submissions on the award specific clauses and it's in table form with the current award on the left, the revised exposure draft and then the submissions or comments including some drafter comments in response to some of the submissions that have been made. What I propose to do is to go through each of the award specific clauses in relation to which there has been some submission or comment and then, firstly, ask you to confirm that the summary of the submissions is accurate. In other words, have we missed someone out? Have we misrepresented your submission? Then we have got some questions to ask you in relation to each. Everyone got how we are going to go? What I don't really want to do, Mr Clarke, is to get four different views. The unions are putting a combined submission, so I'm assuming one of you will be speaking for or on behalf of all of you, except in the case, I think, the SDA has made some specific submissions perhaps in the past. How are you going to handle the union? It's just going to waste time if I - - -

PN15

MS SVENDSEN: We are not going to repeat each other.

PN16

MS BIDDLESTONE: No.

PN17

MS SVENDSEN: We have talked about it and we are clear about things.

PN18

JUSTICE ROSS: As long as we have got one person to sort it out, that's fine.

PN19

MS SVENDSEN: Yes.

PN20

MS BIDDLESTONE: Yes, we do.

PN21

JUSTICE ROSS: Good, thanks. If we go to the definitions, clause 2, and here I am looking at pages 3 and 4 of the summary document. Firstly, are there any corrections or amendments to what is set out there is the summary of the submissions? I will sort of do it on a "speak up or hold your peace" type basis. If I don't hear anything, I will move straight to our questions. There is a proposition put by all of you that the expression "unless the contrary intention appears" which is the language that is used in clause 3.1 of the current award. It says, "In this award, unless the contrary intention appears", then it sets out a series of definitions.

PN22

You have seen the drafter's comment. I have got a slightly different question. Where do you say there is a contrary intention in the award in relation to any of these definitions? In other words, where in the award does one of these terms mean something other than what they appear in the definitions clause? My second question is: if it doesn't, then what are we doing? What's the utility of putting contrary intention?

PN23

You see, the problem may be, I mean, look, if there is somewhere else in the award that there is a contrary intention, that's one thing. But if there isn't and you can't identify one, then putting in "unless the contrary intention appears elsewhere" is going to tend to confuse people because they will look for a contrary intention. My first question is: where do you say a contrary intention appears elsewhere in the award in respect of any of these definitions?

PN24

MS BIDDLESTONE: Your Honour, I believe that that was the submission made by Business SA, so they might be better placed to make comment in relation to that.

PN25

JUSTICE ROSS: I thought it was all parties were putting that proposition.

PN26

MS VAN GORP: Your Honour, if it please the Commission, that probably is a mistake in the drafter's notes. It was something that was specifically put by Business SA and in the document provided by the interested parties, it was actually noted as one of the matters which is another technical change which wasn't supported or opposed by any of the other parties.

PN27

JUSTICE ROSS: It is Business SA. Let me put the question, if everyone else is sort of - if I can, you know, put it this way - ambivalent, in relation to Business SA, where do you say a contrary intention appears elsewhere in the award?

PN28

MS VAN GORP: Business SA won't press that particular matter because it hasn't been supported by the other parties.

PN29

JUSTICE ROSS: Then if we look to the next matter, am I right in saying that the definition of on-hire employer, the addition of the words "covered by this award" at the end is put forward by the unions, but does anyone oppose that? I think it's in the current award. There doesn't seem to be any opposition to that proposition; is that right?

PN30

MS VAN GORP: No.

PN31

VICE PRESIDENT HATCHER: Why does the person to whom labour is supplied necessarily also be an employer under this award? For example, couldn't they source all their labour from the one labour hire company and thus not employ anybody under this award and still be?

PN32

MS BIDDLESTONE: Your Honour, I believe that it was one of the reasons behind - and this was actually part of the joint submissions, so this is a submission made by all interested parties - was to make it consistent with the other definition within the award so that both on-hire employer and on-hire employee say the same thing because on-hire employee says it means an employee of an on-hire employer who is on-hired to an employer covered by this award. It was to make both of the definitions consistent.

PN33

VICE PRESIDENT HATCHER: If you are on-hired to a business which doesn't actually employ people under this award itself then the on-hire employee is not covered by the award either?

PN34

JUSTICE ROSS: What we might do in relation to - and this might arise in a couple of areas where we go through - at least at this stage, we envisage this as an iterative process that our decision in relation to it may deal with a number of the matters where they are relatively clear. I mean, parties might have a different view, et cetera, but we think it's capable of being resolved in a decision. There will be others like this one and one arises under the coverage clause where, you know, there is this vexed question of in hospitals and speaking personally, I'm struggling.

PN35

It seems to be suggested by the unions that you might have a community pharmacy that is in a hospital but doesn't dispense prescription medication and I'm not sure. At least that seems to be the suggestion and speaking for myself I'm not sure I have ever seen one of those. Admittedly, I haven't been in every hospital. It sometimes seems like it. But it just sort of seems a bit contrary to at least my experience. There are questions about that and there are also questions about whether you need part of the clause we want to put to you. It's a bit like the on-hire employer point. That may be something that we will put now and if there is a ready answer, well and good. If there is not, then we might put it to you in a decision form and say: "Well, look, it seems to us that there is this problem with this and what do you want to say about that?"

PN36

Over a process, we will narrow down the issues that remain and determine a number as we go along and some of them are straight forward you all agree, the drafter agrees that there has been error and we will obviously pick all those things up. There are others that are less clear that we can nevertheless decide and there are some in this category. But do you understand the question that's put to you about the on-hire employer, why do they have to be covered by this award. I understand the point you make that, sure, the current definition says it and it's because it's at the end of the employee definition. I understand what the parties say about why you would include on-hire as a definition. You all say that puts some context around it. But why is it that the employer has to be covered by the award?

PN37

MS BIDDLESTONE: It actually appears that those definitions aren't contained in the current award.

PN38

JUSTICE ROSS: No.

PN39

MS BIDDLESTONE: On-hire is contained in the current award.

PN40

JUSTICE ROSS: That's right.

PN41

MS BIDDLESTONE: It's not contained in the plain language draft.

PN42

JUSTICE ROSS: No.

PN43

MS BIDDLESTONE: I'm sorry, I think Mr Clarke would just like to make a comment.

PN44

JUSTICE ROSS: Yes.

PN45

MR CLARKE: I think the issue there is trying to keep track of the change of the definitions and how it interacts with the way the coverage clause has also been changed. I take it that, I mean, the suggestion that is made is an attempt to continue the operation of things to make sure nobody is left out. But I think the issue that you have raised is, well, where does that leave us if you have effectively got a pharmacy that doesn't employ anybody but gets all its workers from labour hire? Are those workers still going to be covered by the award? If you insert "covered by this award" is it in fact excluding somebody? I don't think that that was the result that you were seeking to achieve.

PN46

MS BIDDLESTONE: No.

PN47

MR CLARKE: But it's a matter of not only the definition has changed. You only used to have on-hire as a concept of hire and now you have got on-hire employee and on-hire employer and the way that the coverage clause deals with on-hire has also been changed.

PN48

VICE PRESIDENT HATCHER: Coverage operates by reference to a definition of community pharmacy. Isn't the concept being that the employee is on-hired to work in a community pharmacy?

PN49

JUSTICE ROSS: It's not clear. What work would on-hire do as a definition in the current award?

PN50

MR CLARKE: To intersect with the coverage clause.

PN51

JUSTICE ROSS: The current coverage clause?

PN52

MR CLARKE: Yes.

PN53

MS LIGHT: Your Honour, clause 4.5 of the current award.

PN54

VICE PRESIDENT HATCHER: I see, yes, yes. It covers any employer which supplies labour. I think that's a fairly standard clause in most coverage clauses which probably makes it important to have an on-hire definition which also works on a generic basis.

PN55

MS SVENDSEN: Your Honour, the different - it's the separation, I think, if you look at it, the separation of on-hire definition is true, it says on-hire employee, on-hire employer on that intersection that creates the problem. Maybe we should just go back to the previous definition.

PN56

JUSTICE ROSS: The issue that might arise is whether you need a definition of on-hire employee and on-hire employer at all? There might be a number of strands to this.

PN57

MS SVENDSEN: Potentially.

PN58

JUSTICE ROSS: Yes. If I can just - - -

PN59

MS SVENDSEN: Then retain what was there before.

PN60

JUSTICE ROSS: Yes. If I can just give you the assurance that I don't think we are going to be leaping off into deciding which of these things is retained or not in relation to the on-hire proposition. But it may be that it's simpler to leave the definition of on-hire and its intersection with the coverage clause which, as the Vice President says is a standard proposition, and you don't have a definition of on-hire employee and on-hire employer. This isn't your last opportunity to comment on it, as I have mentioned, but does anyone see a particular utility in defining on-hire employee or on-hire employer?

PN61

MS SVENDSEN: Not off the top of my head.

PN62

JUSTICE ROSS: No. Yes, well, you will have an opportunity to think about it.

PN63

MS SVENDSEN: Yes, and looking at the definitions before us, I think that his Honour was correct in terms of the intersection about it being (a) a general clause and general intersection with coverage clause. But I think it's about attempting to make more clear or clarify the meaning of on-hire when, in fact, it doesn't need that clarity that has been provided or proposed by the plain language drafter.

PN64

JUSTICE ROSS: Because it's really only the intersection with the coverage clause where it makes any difference.

PN65

MS SVENDSEN: Yes.

PN66

JUSTICE ROSS: Unless there is anything before we get there, if we can go to the coverage clause and ask the question first whether there is any amendment or correction to the summary of the submission before we ask some questions about it. If we can start with the easy question first. Is there any opposition to the suggestion by Business SA that you will reverse the order and clause 4.2 goes first and then following by 4.1, which on the face of it seems to have some logic to it. You deal with it generally and then you deal with the specific.

PN67

MS SVENDSEN: I don't think we object to that and I think that the logic of what it covers first is pretty clear.

PN68

JUSTICE ROSS: Yes. The issue that arises with the current coverage clause is this, that the drafter points out when you look at the definition of 'community pharmacy', on page 5 of the summary, go to the left-hand column, and it's the conjunctive 'and' between (a) and (b) and (c) and (d). Does it mean that (c) and (d) only apply to (b) or does (c) and (d) apply to (a) and (b) is the point that he is making. What he is trying to do then is deal with those issues in 4.1 and it seems that most of the commentary or most of the anxiety is around what do we do with pharmacies in hospitals. I know it says hospitals, public institutions, et cetera. How do you characterise them and how do you draw a delineation between the Health Professionals Award? So, a pharmacist engaged in a hospital not selling prescription medication to the public.

PN69

One issue that arises, if you look at the revised exposure draft, 4.1(a), (b) and (c), one question that speaking for myself occurs to me is, why do you need (c) at all? Because (a) and (b) would operate to cover a pharmacy in a hospital that sells to the public.

PN70

MS SVENDSEN: Your Honour, the problem I think - let's go bac to a definition - the concept of selling to the public which used to be a very clear definition between 'hospital' and 'community pharmacies' because you didn't pay any money for your drugs. Now you pay money for your drugs and so it appears somewhat contradictory. In reality, I mean, a hospital pharmacy only issues medications according to a hospital script so, you know, your GP is not going to issue a script that will be then dispensed by the hospital pharmacy, although there's technically nothing that would prevent it.

PN71

JUSTICE ROSS: No, you can get a script filled a hospital pharmacy that hasn't been issued by the hospital.

PN72

MS SVENDSEN: You can in the pharmacies that are sitting at the base of the big hospitals that are not owned by the hospital.

PN73

JUSTICE ROSS: Yes.

PN74

MS SVENDSEN: And they're defined as community pharmacies, not hospital pharmacies.

PN75

JUSTICE ROSS: What's the difference between selling and dispensing?

PN76

MS SVENDSEN: Quite substantial.

PN77

JUSTICE ROSS: Really?

PN78

MS SVENDSEN: Yes. Dispensing is actually putting together the medications in accordance with the script, providing the instructions to the patient so that they actually accurately take those medications. Pharmacists and medical practitioners, under all - so there's defined by the Drugs and Poisons legislation of each state - - -

PN79

JUSTICE ROSS: Okay. So dispensing has a legal meaning within a - - -

PN80

MS SVENDSEN: It has a legal meaning.

PN81

JUSTICE ROSS: Okay.

PN82

MS SVENDSEN: And it also has a legal meaning under the Australian Health Practitioner's regulatory agency for the regulation of all of those people.

PN83

JUSTICE ROSS: And that's why you say "dispensed" needs to be - - -

PN84

MS SVENDSEN: that's exactly why we say "dispensed" needs to be there, because it's about a pharmacy issue, a pharmacist‑issued medication.

PN85

VICE PRESIDENT HATCHER: What's an example of a pharmacy owned by a hospital which dispenses prescriptions to the public? Does such a thing exist?

PN86

MS SVENDSEN: Yes, they do. In fact - - -

PN87

JUSTICE ROSS: So retails them to the public, not - - -?

PN88

MS SVENDSEN: Yes.

PN89

MS BAULCH: And retails prescription medicines for the public. We're not just talking about retailing perfumes and things.

PN90

JUSTICE ROSS: Yes. Presumably if it's not actually providing prescription medication, it's not a pharmacy at all - it doesn't need to be registered?

PN91

MS BAULCH: That's right. The dividing line is actually where pharmacies can operate within a hospital, be they owned by a hospital or privately. Some of those privately‑owned pharmacies dispense medicines to patients in the hospital. They also dispense prescription medicines to the general public, who can walk in off the street and get their prescription filled.

PN92

JUSTICE ROSS: Sorry, when you say - sorry, can I just go back, when you say dispense medication within the hospital, so the idea here is that the pharmacist employed there is also providing the medication to be dispensed by the health professionals to in‑ward patients?

PN93

MS BAULCH: Yes, administered.

PN94

JUSTICE ROSS: Okay, sure.

PN95

MS SVENDSEN: That's a tech - sorry - - -

PN96

JUSTICE ROSS: Sure, yes.

PN97

MS SVENDSEN: But yes, you're quite right.

PN98

JUSTICE ROSS: In other words, a doctor will write up, or, you know, in some cases a nurse practitioner might write up a prescription for medication to an in‑hospital patient. That's then filled by the pharmacist, comes back, and it's administered by the health professionals to the particular patient?

PN99

MS SVENDSEN: That's correct.

PN100

JUSTICE ROSS: And also when the patient leaves, they're sometimes given prescriptions, they go down and they can fill them at the pharmacy within the hospital, as well as the public can come in. But do I take it you might have slightly different models in different places?

PN101

MS SVENDSEN: There are now, your Honour. I mean, clearly, previously this confusion didn't arise, but now there is actually the three kind of models, one where it's an in‑hospital pharmacy only and does in‑hospital scripts, one where it does both, and one where it only does external scripts.

PN102

JUSTICE ROSS: Yes.

PN103

MS SVENDSEN: And in fact you can have both, so, you know, Trevor was just saying in my ear - - -

PN104

JUSTICE ROSS: Yes. Well, say the Royal Melbourne has I think both.

PN105

MS SVENDSEN: Has both - yes, it does.

PN106

JUSTICE ROSS: They've got the ground floor pharmacy, and because of the volume of stuff they've got an in‑house pharmacist?

PN107

MS SVENDSEN: They do.

PN108

VICE PRESIDENT HATCHER: That's owned by the hospital, is it?

PN109

MS SVENDSEN: Yes - oh - - -

PN110

JUSTICE ROSS: Ground floor?

PN111

MS SVENDSEN: The ground floor - - -

PN112

JUSTICE ROSS: I should be able to tell you. I've been there often enough.

PN113

MS SVENDSEN: Yes, Jacqui, do you know whether the ground floor pharmacy at Royal Melbourne is owned by the Melbourne or by someone else?

PN114

MS BAULCH: It's owned by the hospital.

PN115

MS SVENDSEN: There you go, and whereas the Royal Children one, Trevor was just saying, is private.

PN116

MS BAULCH: So that would be pharmacists working in that pharmacy would be covered by the Health Professionals Award. A good example of a pharmacy that I think explains clearly the issue is the pharmacies that operate in the Epworth Freemasons hospitals in Melbourne.

PN117

JUSTICE ROSS: Yes.

PN118

MS BAULCH: Those pharmacies are owned by an organisation called Slade.

PN119

JUSTICE ROSS: Yes.

PN120

MS BAULCH: That organisation operates within those hospitals. I could walk in off the street with a prescription from my general practitioner and have it filled and walk back out again.

PN121

JUSTICE ROSS: Yes. But that's not owned by the hospital?

PN122

MS BAULCH: That hospital also dispenses to the patients within that hospital. They don't have a separate hospital pharmacy.

PN123

JUSTICE ROSS: But that business, because it's not owned by the hospital, and because it falls within the other parts - - -

PN124

MS BAULCH: It's not owned by the hospital.

PN125

JUSTICE ROSS: - - - it's in anyway, is it?

PN126

VICE PRESIDENT HATCHER: That is, if you look at the proposed new coverage clause, (c) only applies if it's owned by - - -

PN127

JUSTICE ROSS: If it's not - - -

PN128

VICE PRESIDENT HATCHER: Well, it's a double negative, I think, but it's only relevant if it's owned by a hospital; otherwise the example you're giving now would just fall under (a), would it not - (a) and (b)? It doesn't need (c) to get in?

PN129

JUSTICE ROSS: And that's because - the current exclusion is the award does not cover the employment in a pharmacy owned by a hospital or other public institution?

PN130

MS SVENDSEN: That's correct.

PN131

JUSTICE ROSS: I'm not sure what the "or other public institution" extends to, but anyway who knows, let's not - - -

PN132

MS SVENDSEN: Nursing homes, or it used to at the time.

PN133

JUSTICE ROSS: Yes, okay - where their goods or services are not sold by retail to the public. So in the Slade example, it's not owned by the hospital so it's already in anyway, because it's a business established wholly or partly for compounding or dispensing prescriptions or selling medicines or drugs by retail to the general public.

PN134

MS BAULCH: Slade would argue that their - and I know this because I've dealt with them frequently - they would argue their primary function is to dispense to the hospitals that they have contracts in.

PN135

JUSTICE ROSS: That might be their business, but under the coverage clause there's no issue for you because it's plain they're not owned by the hospital, and as soon as you're not owned by the hospital and you're established for, at least partly for, dispensing prescriptions or selling medicines or drugs by retail to the general public, well that's it, and Slade does do that.

PN136

MS BAULCH: Okay.

PN137

JUSTICE ROSS: I must admit I was there last week and on the ground floor you struggle to find that it is a pharmacy, because mostly it's selling stuffed toys and flowers.

PN138

MS BAULCH: Yes. I've spent time there myself, sir.

PN139

JUSTICE ROSS: But you certainly can fill a prescription there, as patients do when they're being discharged, and also the general public does, but the most important thing is it's not owned by the hospital, and it's at least partly in the business of dispensing prescriptions and selling medicines, so it falls in anyway.

PN140

MS BAULCH: Could I ask Ms Svendsen a question, because the issue here is not with any other occupational group other than pharmacists really.

PN141

JUSTICE ROSS: Yes.

PN142

MS BAULCH: Are there pharmacists working in hospitals that are not owned by hospitals that you would say would be covered by the Health Professionals Award that may end up being transferred across to this award if we didn't go with what his Honour's suggesting?

PN143

MS SVENDSEN: My understanding is that Slade, for instance, that you've just used, is clearly covered by this award, not the Health Professionals Award.

PN144

MS BAULCH: Yes.

PN145

MS SVENDSEN: Whereas the pharmacies in the Royal Melbourne that we were talking about before, one of which is quite general public, is owned by the hospital and they're covered by the Health Professionals Award. So I don't think that the outcome is going to be a transfer because the people would be covered by this award or by the Health Professionals Award as by dint of ownership. It's making sure this award doesn't confuse the hospital stuff.

PN146

MS BAULCH: Yes.

PN147

MS SVENDSEN: It's all got really confused, I'm very well aware of that, and until we actually have this discussion it's hard to drill down, because we understand what we mean by dispensing, prescribing, administering, and are very quick to use the term as very definitional because we know the other legislation that applies. So it's easy for us but it's not necessarily easy for somebody coming in without that knowledge.

PN148

JUSTICE ROSS: It's not so much the - - -

PN149

MS SVENDSEN: It's easy for people in the industry too, I would say.

PN150

MS BAULCH: Could I then ask the Guild what their position is?

PN151

JUSTICE ROSS: Sorry?

PN152

MS BAULCH: Could I ask the Guild?

PN153

JUSTICE ROSS: Certainly, but can I just make a comment on Ms Svendsen's observations? It's not so much the administering and dispensing, and I understand they're sort of terms of art; it's what is the - leave aside the language for a minute, let's step out of that - and as I understand it we're trying to distinguish between pharmacists who are employed within a hospital, and they're not involved in dispensing medication to anyone that's not a patient in the hospital at the time - they're not dispensing to the public; they don't have a retail outlet - they're an in‑house professional, and you want to make sure that person is under the Health Professionals Award, not this award, and what we're talking about under this award is a pharmacy that dispenses medication to the public.

PN154

MS SVENDSEN: The problem, your Honour, is that the definition is actually really largely owned by hospitals, as opposed to whether they dispense to the public or not, because - - -

PN155

JUSTICE ROSS: Leave that aside for the moment. Let's look at - - -

PN156

MS SVENDSEN: Yes, okay, so that first one is really - - -

PN157

JUSTICE ROSS: Yes, is that what we're trying to - because does it really matter - - -

PN158

MS SVENDSEN: It's a bit in the middle.

PN159

JUSTICE ROSS: Why does it matter whether it's - as long as you've got the proposition, the essence of a community pharmacy is that at least in part it is dispensing medication to the public. It may be doing a range of other things, of course, but at least if it's doing that - if it's not doing that, it's not going to have a pharmacist anyway.

PN160

MS SVENDSEN: That's definitely true - if it's not doing it, it's not going to have a pharmacy. But using the example of the Royal Melbourne pharmacy in the base of the pharmacy, which has got all the other rubbish, - - -

PN161

JUSTICE ROSS: Yes, sure.

PN162

MS SVENDSEN: - - - don't worry about the other rubbish, it dispenses to the public on public scripts, as well as patients.

PN163

JUSTICE ROSS: It does, yes.

PN164

MS SVENDSEN: But it's actually owned by the hospital.

PN165

JUSTICE ROSS: What difference does that make?

PN166

MS SVENDSEN: So they're covered by the Health Professionals Award.

PN167

JUSTICE ROSS: Why?

PN168

MS SVENDSEN: Because it's owned by the hospital and it's on the hospital premises. And they also have a role in terms of dispensing on - you can't actually go - while Slade's, because of their contract with the hospital, dispenses on pharmacy scripts, you can't just take a hospital script out to a community pharmacy necessarily and have it filled.

PN169

MS BAULCH: That's correct.

PN170

MS SVENDSEN: The fact that they do might be contractual or it might be because they're owned by the hospital. So in the Epworth example, it's contractual, that's part of their contract with the hospital to do that. In the Melbourne example, it's because they're actually hospital‑owned. We would actually say that the pharmacy in the Royal Melbourne is clearly Health Professionals‑covered, both pharmacies, one that only deals with the internal, and one that deals with the internal and external. So it's retailing to the public, quite clearly retailing to the public, but they're hospital‑owned and therefore they're Health Professionals‑covered.

PN171

JUSTICE ROSS: I'm not sure that that's consistent with what the award currently says.

PN172

VICE PRESIDENT HATCHER: No.

PN173

JUSTICE ROSS: Because if it sells goods or services by retail to the public.

PN174

MS SVENDSEN: Well, yes, and herein lies part of the difficulty, because retail to the public was a definition that pre‑dates the fact that hospital pharmacies actually sold their medications. So it goes back to a time where the selling of medications only occurred in community pharmacies because when you were in hospital you got your drugs and your discharge drugs free.

PN175

JUSTICE ROSS: I think the problem you've got is that - it might be that your view is the other award applies, but - - -

PN176

MS SVENDSEN: And it's never been argued out.

PN177

JUSTICE ROSS: - - - on the reading of this award it doesn't seem to.

PN178

MS SVENDSEN: That may be the case. I'm saying that that's what we would say in terms of that.

PN179

JUSTICE ROSS: I know, but - - -

PN180

MS SVENDSEN: And it's not something that's ever been tested.

PN181

JUSTICE ROSS: Yes.

PN182

MS SVENDSEN: But the principle for us is that according to this, because it's owned by the hospital, it might not be covered by this award either.

PN183

JUSTICE ROSS: Is there a different classification structure - or I guess one of the issues might be this that if you say that the Health Professionals Award applies, how do you deal with the non‑pharmacists who are employed in the outlet at the bottom of the Royal Melbourne?

PN184

MS SVENDSEN: Same award.

PN185

JUSTICE ROSS: What, there are shop assistant classifications, pharmacy assistant - - -

PN186

MS SVENDSEN: Pharmacy assistant classification is definitely there.

PN187

JUSTICE ROSS: Yes, there would be. But what - - -

PN188

MS SVENDSEN: And the concept of the support services staff doesn't negate the use of those classifications, but it doesn't actively suggest that it would be there either.

PN189

JUSTICE ROSS: Well, I suppose there are a couple of dimensions to this. If we look at - leave aside for a moment what the current award says - your proposition is that if it's owned by the hospital, in short form, if it's owned by the hospital or a nursing home or other institution, then they're covered by the Health Professionals Award. That's a full‑stop. That's your - - -

PN190

MS SVENDSEN: Yes, I would say that.

PN191

JUSTICE ROSS: Before we get too far down the drafting stage, what does everyone else say about that proposition? Leave aside what the current award says, would you be opposed to a coverage clause that said that?

PN192

MS LIGHT: The Guild doesn't under its rules cover pharmacies that are owned by public hospitals or institutions, so we wouldn't oppose an alteration to coverage on that basis, but nor we would support one.

PN193

JUSTICE ROSS: No, okay. So your interests aren't really directed affected one way or the other. What about the other unions, just before I get to - - -?

PN194

MS BAULCH: Sir, we don't have any opposition to that - if it's owned by a hospital we see it as being covered by - - -

PN195

JUSTICE ROSS: I can see why APESMA and the HSU might not have a problem, but what - - -

PN196

MS BIDDLESTONE: The SDA wouldn't oppose that, your Honour.

PN197

JUSTICE ROSS: All right. What's the view from the other employers?

PN198

MS THOMSON: We're guided by the Guild on this issue, your Honour.

PN199

JUSTICE ROSS: Okay. Business SA?

PN200

MS VAN GORP: We're also guided by the Guild on this matter.

PN201

JUSTICE ROSS: Well, give some thought to that, but what we might do is express a preliminary view in relation to it, and then give you further time to reflect on that issue. But that would seem to be a much clearer way through the problem, rather than trying to re‑construct the current definition, and if everyone's content with that being the dividing line - content might be overstating it, but at least not opposed to it - then that might be the simplest way of resolving the coverage issue and the drafting of the clause. So what we might do is, I think, express a preliminary view - I'd also ask the drafter to come up with something that gives effect to that preliminary view - and then give you a further opportunity to comment on it. Is anyone concerned about that as a process? No?

PN202

MS BAULCH: I'm happy with that, sir.

PN203

JUSTICE ROSS: All right. Well, you'll have a further opportunity then to come back, and I suspect that won't be the last we'll hear of the coverage issue. Let's then go to - - -

PN204

MS LIGHT: Your Honour?

PN205

JUSTICE ROSS: Yes?

PN206

MS LIGHT: Your Honour, there were other issues with the coverage policy, weren't there, on the issue of whether a public hospital - - -?

PN207

JUSTICE ROSS: There were, yes.

PN208

MS LIGHT: So the coverage clause has also been amended to include a requirement that the prescriptions or medication or drugs are sold by retail to the general public.

PN209

JUSTICE ROSS: Yes.

PN210

MS LIGHT: The current coverage says that a community pharmacy is a business where those things are dispensed and where other goods may be sold by way of retail.

PN211

JUSTICE ROSS: Yes.

PN212

MS LIGHT: There are a series of services and types of medication, for example, PBS medication, that community pharmacies either sell or provide for no charge. Effectively, that causes a difficulty by requiring that they are sold by retail.

PN213

JUSTICE ROSS: I see.

PN214

VICE PRESIDENT HATCHER: That's all they do?

PN215

MS LIGHT: It's not necessarily all that they do, but there could be circumstances where they primarily deal with PBS drugs and those types of services that are government funded, for example, immunisations. There are also health checks, like, blood pressure testing. Those things are not services that pharmacies charge for. They are not provided by way of retail.

PN216

VICE PRESIDENT HATCHER: It's, "Wholly or partly", and then it's got, "Options of dispensing prescriptions or selling medicines or drugs by retail." That would include presumably non-prescription medicines and drugs. As long as you are partly founded for that purpose, you are in, aren't you?

PN217

MS LIGHT: It may be, but we are not sure whether there are businesses that do operate to the exclusion of selling other things by way of retail.

PN218

VICE PRESIDENT HATCHER: If you are only selling prescription drugs for nothing and you are not selling anything else, it is not much of a business, is it?

PN219

MS LIGHT: The government funding under the 6CPA agreement does provide some remuneration to the pharmacies by way of government funding. Presumably, there are mainly pharmacies that do sell goods by way of retail, but in circumstances where there may be some who aren't, it could just - - -

PN220

JUSTICE ROSS: It would be a pharmacy that dispenses PBS medication for no charge and that's all they do. I can't think of - - -

PN221

MS SVENDSEN: I don't know of one.

PN222

JUSTICE ROSS: Remote communities.

PN223

MS SVENDSEN: The government actually provides - - -

PN224

JUSTICE ROSS: It's not going to sell Aspirin or something like that.

PN225

MS SVENDSEN: - - - funding to the pharmacies to dispense diabetes medicines and the like.

PN226

JUSTICE ROSS: No, look, I readily accept that and especially in the penalty rate case, I am over the community health agreement and how all that works. I understand they are funded to provide services to the public at no charge and that certainly in circumstances they will provide PBS medication at no charge if you are over the amount or you fit within a category, et cetera. But, really, the only problem arises is if you have a pharmacy out there that only provides free services or PBS medications of no charge and does nothing else. It's just a bit hard to believe that there would be such a business.

PN227

VICE PRESIDENT HATCHER: I think, in any event, you may be misreading the clause because I think what the draft has done is combined two expressions. The business has to be established wholly or partly for either (1) compounding or dispensing prescriptions or (2) selling medicines or drugs by retail. As long as you establish one of those two conditions, it seems to me that you're in.

PN228

JUSTICE ROSS: Yes, because they would be compounding or they would be dispensing prescriptions.

PN229

VICE PRESIDENT HATCHER: Or selling medicines.

PN230

JUSTICE ROSS: Yes, well, they're alternatives.

PN231

VICE PRESIDENT HATCHER: You are reading the words by "retail" as applying to the first alternative. I can understand why you would do that, but I don't think that's what is intended.

PN232

MS SVENDSEN: That's not very clear.

PN233

MS LIGHT: We won't press that, your Honour.

PN234

VICE PRESIDENT HATCHER: If you're selling it, why do you need the word "by retail" anyway?

PN235

JUSTICE ROSS: Because it's a reflection of the existing - I'm pretty sure that's where it's come from.

PN236

VICE PRESIDENT HATCHER: Sure.

PN237

MS SVENDSEN: Do we need it?

PN238

JUSTICE ROSS: Yes, it does the raise the question if you're selling, why do you need "by retail"? You know, you're not going to be in the wholesale drug business, presumably, otherwise you'd be under the Pharmaceutical Award.

PN239

MS SVENDSEN: We are not intending to cover other institutions.

PN240

JUSTICE ROSS: No. As we go through them, I should have made this clear that where the submission is clear, unless you want to add something to it, we understand. But it's been a useful discussion about that issue. Was there anything else on the coverage clause or do you want to see the next iteration and we will see how we go? What we will do is put to the drafter the issue that the Guild raise and whether there is a way of making it clearer that you can fit within the categories and we will see what is said about that and we will put that back to you. Then on page 7, 8.3, I think it's generally agreed that the note to section 65 comes out. I don't think we need to cover that.

PN241

The next thing that excites a fair bit of interest is in relation to types of employment, particularly part time and casual. If we deal with part time, firstly, are there any additions or amendments to the summary of submissions before we go to the questions? No. Can I ask, the first question is the unions seek the retention of clause 12.5 of the current award which is the proposition that part time employees are to be rostered for a minimum of three consecutive hours per shift.

PN242

It is put by the drafter: "That's in the agreement." But the difference is enforceability probability. You can enforce the agreement, perhaps at common law, but it's not as an award term and it's currently an award term. That's what I have taken to be the problem. Is there any opposition to retaining the award provision in 12.5?

PN243

MS LIGHT: No, your Honour, it's actually a matter I raised. It wasn't the union's submission.

PN244

JUSTICE ROSS: No, certainly you have raised it, but so did the SDA.

PN245

MS SVENDSEN: We raised it too.

PN246

MS LIGHT: Everybody raised it.

PN247

MS SVENDSEN: Yes, everybody raised it.

PN248

JUSTICE ROSS: Yes, yes. Nobody has any problem with it? All right. Then both the Guild - I won't make the same mistake twice - both the Guild and the unions raise the question about the SDA raises a slightly different point as well, but you both raise this point that the revised draft doesn't say that the variations may be temporary or permanent. Speaking for myself, why would it need to? It can be a variation. The variation can simply say: "For next week, we are going to work this and it will only apply to next week." Why does it need to say it can be temporary or permanent? It's not permanent anyway because it can be subject to a subsequent variation. Why do you need it?

PN249

MR CLARKE: This is where the legislative instrument is sort of bent if the plain language drafting kind of comes into it and there is a few comments in the drafter's comments generally that: "Well, you know, it's legislative drafting and it's understood to work this way."

PN250

JUSTICE ROSS: No, I'm not worried about the legislative drafting. I am just looking at it as a matter of common sense.

PN251

MR CLARKE: Yes.

PN252

JUSTICE ROSS: Why can't you have a variation that operates either temporarily, that is, for a specified period of time, and I think to describe it as permanent is a misnomer anyway.

PN253

MR CLARKE: Yes.

PN254

JUSTICE ROSS: I have got a different point to the drafter.

PN255

MR CLARKE: Yes, I understand that, but presumably, and I am sorry to labour the point on this, but, you know, legislative drafting - the comments in this from the drafter occasionally sort of indicate a view that when somebody reads this instrument or is asked to give a legal view about this instrument it is going to be interpreted in a way that a legislative instrument would be interpreted whereas the case law is all the other way at the moment.

PN256

JUSTICE ROSS: At the moment, but the case law started when awards were made in settlement of a dispute and not when they were regulatory instruments.

PN257

MR CLARKE: Yes.

PN258

JUSTICE ROSS: I am not sure how long - and there has been some recent authority which rather suggests the notion that you have got people sitting around a table resolving disputes with their sleeves rolled up and coming up with whatever they can come up with no longer reflects the practice.

PN259

MR CLARKE: Yes.

PN260

MS BIDDLESTONE: Sorry, your Honour, if I can point out the importance of this clause is also in relation to the payment.

PN261

VICE PRESIDENT HATCHER: Before the variation?

PN262

MS BIDDLESTONE: No, it goes more to what the payment of wages will be for an agreement variation because under the Pharmacy Award, an employee can have a base number of hours and agree to work additional hours and are paid at the casual rate of pay for those additional hours. That would be a temporary variation to their hours, whereas a permanent variation is something different. In this award, it might be useful to set out that an agreed variation can be permanent.

PN263

JUSTICE ROSS: It's the intersection with that issue.

PN264

MS BIDDLESTONE: It's the intersection with 12.2(f).

PN265

JUSTICE ROSS: With, sorry, 12.2(f)?

PN266

MS BIDDLESTONE: 12.2(f) where it says: "All time worked in excess of agreed hours is paid at the overtime rate." But then it also intersects with - I will have to find clause, sorry, your Honour.

PN267

MS LIGHT: 12.11.

PN268

MS BIDDLESTONE: 12.11, thanks.

PN269

JUSTICE ROSS: You say that's why you need the distinction.

PN270

MS BIDDLESTONE: I think it does need to be clearer in this award because there is a difference in relation to the payment of wages where there is agreement to work additional hours. That it probably does need to be clear that the agreement can be a temporary nature or on a more permanent basis because that will inform how that employee is paid for the additional hours.

PN271

MS LIGHT: That ties in with another issue that the Guild says that clause 12.11 isn't reflected in the plain language draft, so it seems to have fallen away.

PN272

MS BIDDLESTONE: How does that work? Does an employer say: "You're entitled at 12.2(f) to be paid at overtime rates, but would you like to be employed or paid as a casual for those extra hours?" The employee then has to agree?

PN273

MS LIGHT: Yes, and if there is no agreement, then they could presumably be requested to work the hours at overtime rates.

PN274

MS SVENDSEN: Which then falls into the reasonable overtime requests and - - -

PN275

JUSTICE ROSS: It's either a consensual arrangement in which case being paid the casual loading or it's a direction in which case they are paid the overtime.

PN276

MS BIDDLESTONE: Overtime, that's correct, and I think the reasoning behind the way that that is structure was to ensure that part time employees had reasonable access to increased hours if they wanted to and they weren't going to be prejudiced by the employer having to pay overtime for them to access additional hours.

PN277

VICE PRESIDENT HATCHER: Having raised that, so what's the relationship between 12.3 and 12.11? That is 12.3 requires agreement in writing and it can be for a single shift. But then 12.11 has a different mechanism for additional hours which doesn't require it to be in writing.

PN278

JUSTICE ROSS: Or do they?

PN279

VICE PRESIDENT HATCHER: Or is the agreement in 12.11 an agreement which has to be made under 12.3?

PN280

MS SVENDSEN: I think it has to be made under 12.3.

PN281

JUSTICE ROSS: Whilst you are pondering that, can I ask a different question about it? If they work additional hours under 12.11, let's say they work four hours one week, do I take it that four hours does not accrue any leave entitlements?

PN282

MS LIGHT: Yes, your Honour.

PN283

JUSTICE ROSS: That's the intent as well?

PN284

MS SVENDSEN: Yes.

PN285

MS LIGHT: In terms of the interaction between 12.3 and 12.11, 12.3 seems to refer to the agreed hours of work and then 12.11 applies where an employee works in excess of those agreed hours. In our view, there would be no obligation to have an agreement to work additional hours at casual rates reduced to writing in the way that 12.3 contemplates because it is specifically meant to apply beyond those hours that have been agreed.

PN286

VICE PRESIDENT HATCHER: I suppose the other issue is conceptually is it that for the additional hours, they are not employed as a part-timer at all. They have actually got a dual employment status. They are part-timers for their agreed contracted hours under the earlier provisions of their agreement and they are also working as a casual. But if you agree in writing - - -

PN287

JUSTICE ROSS: You become part-time. A

PN288

VICE PRESIDENT HATCHER: So you were doing an additional two hours for a single shift, you would agree in writing that that's part of your agreed hours and you get paid ordinary time, or if you don't agree in writing, you get paid casual rates. And if you don't agree at all, you get paid overtime rates.

PN289

MR CLARKE: I will give it a shot.

PN290

MS BIDDLESTONE: I have seen it elsewhere that you also need to pay super, don't you, on the casual extra hours. So you are at 34 and a half per cent, aren't you, versus the potential 50 per cent with no super.

PN291

VICE PRESIDENT HATCHER: But I am just wondering whether the concept of a 12.3 agreement in writing for a single shift is a necessary or practical concept.

PN292

MR CLARKE: We might put a series of propositions - - -

PN293

MS SVENDSEN: Agreements in writing can be fairly easily done even if it is by signing a roster. I think we have had some of these discussions in other proceedings, your Honours.

PN294

JUSTICE ROSS: Yes. No.

PN295

VICE PRESIDENT HATCHER: That becomes a question of is it a 12.11 agreement or a 12.3 agreement and do you get paid casual rates or ordinary rates.

PN296

JUSTICE ROSS: The other point that the SDA makes is an agreement to vary has to be made before the variation occurs which is consistent with 12.3 of the current award. Does anyone have any different view to that? No. We understand the submissions that are put. We will put a series of propositions back to you about issues for further comment in relation to the part time question. There is also the intersection between some of the provisions both in the current clause and the revised draft. For example, the provision that there has to be variations agreed in writing, et cetera, under 10.4 and 10.5 of the exposure draft. How does that sit with 10.8? Certainly (b), by mutual agreement, well, that's an agreed variation, but otherwise it's on the giving of notice. You can change, for example, everything but the number of hours worked, the number of hours agreed under 10.4, so you can change the days and the start and finish time and when meal breaks are taken by the giving of seven days on one view under 10.8, but the other parts of the clause would require those matters to be the subject of an agreement and so how does all that finish?

PN297

MS SVENDSEN: Your Honour, this is an issue not just confined to the Pharmacy Industry Award.

PN298

JUSTICE ROSS: Not really. We are only looking at the Pharmacy Industry Award.

PN299

MS SVENDSEN: I know we are today, but the intersection between the concept of the predictable hours of a part time employee, that needs to be set on engagement and the concept that a roster may vary those hours at whim is inherently contradictory.

PN300

VICE PRESIDENT HATCHER: In most other awards, the problem has arisen this way where there is a clause like 10.4 of the exposure draft and the part time clause, but then there will be separate clauses elsewhere in the award about rostering which says it can change by mutual agreement of seven days' notice and there has been arguments about which clause has priority. What's different about this clause is that the rostering clause is a specific part time employment clause so there can't be any doubt that it was intended that the employer could change the days of the week upon which the employee will work and the times at which the employee will start and finish by a seven-day roster change on notice. Then the question arises, well, how does that sit with 10.5 in the exposure draft, although the same problem arises in the current award?

PN301

MS SVENDSEN: I don't disagree with you at all. I don't know that I have an answer, though.

PN302

JUSTICE ROSS: No, that's fine. I mean, we don't have an answer yet either but it's something we'll be seeking further comment about and we'll be able to resolve some issues but we'll highlight others for further submissions. Is there anything else on part time?

PN303

MS BAULCH: So this does need clarification and sorting out. There are a high number of part-time workers in community pharmacies and most of those people actually have jobs in more than one community pharmacy. So this whole rostering and hours arrangement needs to be clarified and made clear so that both the employers and employees know what can happen and when it can happen and how it can happen.

PN304

From the employee perspective they enter into an arrangement with pharmacy "A" to work such and such in hours or on such and such a days and they enter into an arrangement with pharmacy "B" to work such and such hours on such and such an arrangement and if one of those pharmacies varies the rosters it can cause significant flow-on problems for their work arrangement at the other pharmacy.

PN305

JUSTICE ROSS: Yes.

PN306

MS BAULCH: So it really is and it's an issue we have had with our members on a number of occasions.

PN307

JUSTICE ROSS: We understand it's an issue but I don't think we're going to resolve it today.

PN308

MS BAULCH: Yes. And I'm sure if employers have the same problem ringing up each other and saying - - -

PN309

JUSTICE ROSS: That's fine.

PN310

MS BAULCH: - - - well, "Why did you do this to my employee?" So I think it's something that really needs sorting out - - -

PN311

JUSTICE ROSS: Sure.

PN312

MS BAULCH: - - -particularly in this industry.

PN313

JUSTICE ROSS: Yes. Okay.

PN314

MR CLARKE: It might be something that goes a little bit beyond the plain language drafting bit of it but - - -

PN315

JUSTICE ROSS: We're not going to turn every award clause in this award into a common issue. I can assure you of that.

PN316

MR CLARKE: No, I'm not certainly not asking that that be the case.

PN317

JUSTICE ROSS: Yes.

PN318

MR CLARKE: I'm certainly not making that submission but I'm just thinking that whatever emanates from this and some discussion the issue might - there might be some intervening process before the thing just gets handed over to the drafter to ask them to fix it on some basis. Maybe there needs to be some discussion around what the function actually looked like.

PN319

JUSTICE ROSS: We published the decision, we expressed provisional views. We're not restricting anyone who wants to come along and say anything.

PN320

MR CLARKE: Yes.

PN321

JUSTICE ROSS: But, you know, we're not going to trawl through every award where a problem might arise that's similar to this one and then invite all of them to come in because it won't be a four-yearly review. It will be a 24-year review.

PN322

MS SVENDSEN: I think we're heading for that anyway, your Honour.

PN323

MR CLARKE: No, I'm not at all suggesting that that happen. I'm just sort of highlighting that the problem that we have identified here is not a problem with the translation of the exposure draft into what language drafting is.

PN324

JUSTICE ROSS: Well, except that - no, no it's not.

PN325

MR CLARKE: Yes.

PN326

MS SVENDSEN: It's highlighted by it.

PN327

JUSTICE ROSS: It's a problem with the current award.

PN328

MR CLARKE: Yes, that's what I'm saying.

PN329

MS SVENDSEN: Yes, that's right.

PN330

JUSTICE ROSS: But it's not a problem as the Vice President mentions, not a problem that necessarily arises in a lot of other awards.

PN331

MR CLARKE: No.

PN332

JUSTICE ROSS: The problem that arises in other awards is a different problem.

PN333

MR CLARKE: Yes.

PN334

JUSTICE ROSS: And it's the intersection between a rostering - general rostering clause with the part-time prescription. And it's just probably something that was never - because one has followed the other.

PN335

MR CLARKE: Yes.

PN336

JUSTICE ROSS: But it's never - the intersection just hasn't been the subject of much thought.

PN337

MR CLARKE: Yes.

PN338

JUSTICE ROSS: Has probably been the issue. Can I just raise one last thing on part-time? The guild make - this is on page nine - some submissions around the overtime issue and the drafter provides some comments. I'm looking here at your second comment on that page. Paragraph 26 of your sub. The drafter responds, this is dealt with in clause 10.6(c) and you also submit that 10.6(b) is a new obligation and the drafter responds saying the obligation currently exists in 26.2. Was there anything you wanted to say about in response to the drafter's comments?

PN339

Do you want to reflect on that? And perhaps let us know in a week or so?

PN340

MS BIDDLESTONE: Yes, thank you, your Honour.

PN341

JUSTICE ROSS: Because it may be that that might resolve that issue and we don't need to give it much further thought, that's all. The points I was making to the guild are on page nine of the revised summary - right-hand column - I think it's the third or fourth observations you're making there.

PN342

VICE PRESIDENT HATCHER: Yes, sir. Can I just raise on page nine the SDA's submission which is the second from the foot of the page? So this raises an issue about the interaction between full time, part time and casual.

PN343

MS BIDDLESTONE: That's correct.

PN344

VICE PRESIDENT HATCHER: So I think there would be a consensus that the person who does not meet the defined characteristics of a full time or part time employee must be paid with a casual and receive the casual loading.

PN345

MS BIDDLESTONE: That's correct.

PN346

VICE PRESIDENT HATCHER: In respect of part time employees it's not just in terms of either the current clause in 12.1 an exposure draft and 10.1 that they just have to satisfy that requirement. It's as I understand it they would have to satisfy the requirements of the whole clause, including, for example, that they have the necessary agreement under 12.2 - currently, 10.4 in the exposure draft is that right?

PN347

MS BIDDLESTONE: That's correct.

PN348

VICE PRESIDENT HATCHER: So I think that part follows and therefore in terms of casual employees, they are persons who are otherwise employed under the award as the only available third option and must be paid the casual loading. So I think is reasonably clear, although, I think the SDA made a submission about - that they must be employed to casuals, not maybe employed as casuals.

PN349

JUSTICE ROSS: So did the guild I think.

PN350

VICE PRESIDENT HATCHER: Yes.

PN351

JUSTICE ROSS: Yes.

PN352

VICE PRESIDENT HATCHER: But then that intersects with an issue on page 10 that's raised, I think primarily by the SDA and that is it's suggested that 13.1 of the current clause which defines a casual as being engaged in such and doesn't have an expectation of time to reasonably predict all hours of work, it's suggested that that current clause is to be read as meaning that if you're engaged as a casual that over time you do turn out to have reasonable predictable hours of work, you somehow cease to be a casual and become a part-timer.

PN353

MS BIDDLESTONE: That's correct.

PN354

VICE PRESIDENT HATCHER: And speaking for myself I just don't understand how that follows from the language, that is to say that you don't have entitlement to reasonably predictable hours doesn't seem to me to logically follow that if you end up having reasonably predictable hours you somehow cease to be a casual, because you don't meet the other requirements of part-time employment with a written agreement required by 12.2 and I am struggling to understand what category you end up being.

PN355

MS BIDDLESTONE: The way that the clause currently operates and this is as a result of the modernisation of the award in the first place and the provision was specifically written in that way and following award modernisation the guild actually got their members to go through and see if anyone was working regular consistent hours who were being paid as a casual, they were converted to part-time employees.

PN356

VICE PRESIDENT HATCHER: And does it follow then that there's a process for them entering into a written agreement, as required by clause 12.2 currently?

PN357

MS LIGHT: Your Honour, it would potentially assist if you go to 8.9 of the current award.

PN358

VICE PRESIDENT HATCHER: 8.9?

PN359

MS LIGHT: A.9 - so Schedule "A".

PN360

VICE PRESIDENT HATCHER: Right.

PN361

MS LIGHT: There were transitional provisions that were required for (d) the casual employees - - -

PN362

JUSTICE ROSS: I see.

PN363

MS LIGHT: - - -in a particular way.

PN364

VICE PRESIDENT HATCHER: Just hold on a second. You've got Schedule "A".

PN365

MS LIGHT: Point nine.

PN366

VICE PRESIDENT HATCHER: Right. But presumably all that's finished.

PN367

MS LIGHT: It has finished but the way that the guild and certainly the unions have continued to operate is that casual employees are and any of those who do have that quite irregular work and the remainder of the employment is - - -

PN368

VICE PRESIDENT HATCHER: Yes.

PN369

MS LIGHT: - - -on a part-time or full-time basis.

PN370

JUSTICE ROSS: Well, that might be the way it operates in practise and you may want that practise reflected in the award but I agree with the Vice President. I don't see how the award gets you to that position as it currently stands. If the transitional provision stopped - if you want the transit (a) provision likely or if you want a casual conversion clause then or if that's not opposed then that might be drafted for you to look at but I don't see how that clause - you know - clause 13 gets you there.

PN371

VICE PRESIDENT HATCHER: So are you pointing to A.9.3? So it says on 1 July 2014 all employees deemed casual who have expectation and entitlement will be converted to permanent.

PN372

MS LIGHT: That's so.

PN373

VICE PRESIDENT HATCHER: And what you're saying that's an ongoing requirement now?

PN374

MS LIGHT: It's not strictly an ongoing requirement in accordance with the terms of the award but it is a practise that the guild certainly advises its membership.

PN375

VICE PRESIDENT HATCHER: I mean the fact that you're a casual but you're working say, on a roster with reasonable particular hours, how does it follow that you have an entitlement to it?

PN376

MR CLARKE: Well, under the terms of the award presently you wouldn't be permitted to be described as a casual employee because you had regular hours and that was - - -

PN377

JUSTICE ROSS: No, but it's - I don't think that follows from the current award. It's whether you've got an entitlement.

PN378

VICE PRESIDENT HATCHER: Is that where the expectation comes in?

PN379

MR CLARKE: Expectation and your entitlement to reasonably - - -

PN380

VICE PRESIDENT HATCHER: But if you're on a roster you say that gives rise to an expectation of regular hours.

PN381

MR CLARKE: Yes.

PN382

VICE PRESIDENT HATCHER: How long do you have to be on the roster before you get an expectation? Is it just a subjective expectation you've got?

PN383

MS SVENDSEN: I think that's - - -

PN384

MR CLARKE: It's a word that's lifted from matters that have considered the transition between casual and permanent.

PN385

MS BIDDLESTONE: And your Honour, I just wanted to point out too that because of A.9.3 the SDA did make a deliberate decision not to pursue casual conversion and the guild did put on record, I think, before your Honour, that the Pharmacy Award wouldn't be subject to the casual conversion case because of that.

PN386

JUSTICE ROSS: Yes.

PN387

MS BIDDLESTONE: Sorry, our concern is that if the current wording was changed.

PN388

JUSTICE ROSS: I don't think you need to be concerned about that.

PN389

MS BIDDLESTONE: Yes.

PN390

JUSTICE ROSS: We'll deal with it in this award but that doesn't preclude you from - if we deal with it in a way that doesn't give effect to what you want that doesn't preclude you from simply seeking a variation or include a casual conversion clause. You're not - there's no estoppel or anything else like that that would operate to your detriment. But I understand what you say there that that you worked on the basis of a common understanding.

PN391

MS BIDDLESTONE: Yes.

PN392

JUSTICE ROSS: At least about the industrial practise and the only observation we're making to you is that we don't see how you get there as a legal entitlement, leave aside what the practise might be on the current award. That's all. Now, there are a couple of ways of dealing with it. You can try to give effect to the practise in some way in a draft clause that you can look at. But look, I mean speaking for myself I just think in the current award 13.1 I just don't know how you would apply that as a legal matter. How would you interpret that? Does it mean - - -

PN393

MS SVENDSEN: Surely, your Honour, the interpretation would fall back on what is generally the general decisions in relation to reasonable expectation.

PN394

JUSTICE ROSS: No. But it doesn't say reasonable expectation.

PN395

MS SVENDSEN: Sorry, expectation to our entitlement to reasonably predictable clauses - sorry, terms in fact have been - - -

PN396

JUSTICE ROSS: No, no. But just on the plain reading of it, you don't read in a word that you have a reasonable expectation. There's no objective - - -

PN397

MS SVENDSEN: Sorry. You're right. It doesn't say "reasonable expectation". But expectation or entitlement to reasonably predictable hours. Those are the expectation and entitlement and the reasonably predictable hours have actually been kind of looked at fairly extensively.

PN398

JUSTICE ROSS: Have they?

PN399

MS SVENDSEN: At different times.

PN400

JUSTICE ROSS: Well, I'll invite you to tell me where they have been. Where is the arbitral decision or judicial decision dealing with this? Because you know - the only time - - -

PN401

MS SVENDSEN: My - let me think about it.

PN402

JUSTICE ROSS: Well, I can give you an example. It's in the TCR clause.

PN403

MS SVENDSEN: Yes.

PN404

JUSTICE ROSS: The question of suitable alternative employment was looked at about whether that was an objective or a subjective test and it couldn't operate as a subjective test. But it seems to me that on the face of this that if a casual has an expectation of reasonably predictable hours of work or if a person has an expectation of reasonably predictable hours of work then they're not a casual but how does that work if they don't have a part-time agreement and it's just - what does it mean? They don't get their casual loading but they're somehow in some legal limbo.

PN405

MS SVENDSEN: Okay.

PN406

VICE PRESIDENT HATCHER: Well, it seems to me if you're going to have a clause that operates the way you want it to it would have to say it's a casual who, in fact, works reasonable predictable hours and then you would have to define over some reasonable period.

PN407

JUSTICE ROSS: And you'd have a casual conversion clause.

PN408

MS BIDDLESTONE: Schedule B provided at A.9.2 for this to happen on the anniversary date, didn't it?

PN409

MS SVENDSEN: Yes. There's a flag there for when it would occur.

PN410

MS BIDDLESTONE: Yes. Well, that no longer would apply.

PN411

JUSTICE ROSS: No. What do the - if we stick with clause - with page 10 for the moment and the submission comments column the Business SA submission, what do the other parties say about that?

PN412

MS VAN GORP: If it pleases the Commission? In the interested parties' submission they noted that a minor amendment to clause 11.1 of the exposure draft is required to make clear that a casual employee, under this award, is one specifically engaged as a casual employee who is not a part-time or a full-time employee. So where it currently says in the award, "Engaged as such" - an alternative wording could be that they were specifically engaged as a casual employee. Neither of those provisions are in the current draft, 11.1.

PN413

VICE PRESIDENT HATCHER: But that would exclude the additional element of the definition in 13.1 currently, wouldn't it?

PN414

MS VAN GORP: No. Because then that flows on at 11.2 and is part of that other discussion that we were having previously. It's specifically that first part of the whole sentence in 13.1.

PN415

VICE PRESIDENT HATCHER: I thought that was the complaint being made by the SDA and perhaps the Pharmacy Guild that the way it's been drafted the separation out of the reasonably predictable hours of work requirement removes it from the actual core definition of what a casual is under this award. I mean you're probably right in saying that the approach you favour is a more standard approach in other awards but what seems to have been raised is that there's something fairly unique in this award.

PN416

Maybe another way of saying that well, I think the issue you're raising is perhaps an issue of more substance than simply drafting.

PN417

MS VAN GORP: Certainly that was Business SA's position and we were under the opinion that the other parties had agreed because of paragraph 15 of the interested parties' submission.

PN418

JUSTICE ROSS: That's why I asked the question. What's the position of the other parties in relation to the Business SA submission.

PN419

MS BIDDLESTONE: I think we have agreed.

PN420

MS VAN GORP: Yes.

PN421

VICE PRESIDENT HATCHER: I thought you were putting to me or putting to the Bench that under this award a casual was somebody who by definition was not working reasonably predictable hours. It seems to me that what is being put by Business SA is a more conventional approach whereby a casual is someone who is engaged as a casual full stop.

PN422

MS BIDDLESTONE: No, well, the current clause combines the two.

PN423

VICE PRESIDENT HATCHER: That's the point and they are saying you only need the one.

PN424

MS BIDDLESTONE: No, I don't think that's what they are saying.

PN425

MS VAN GORP: Yes, Business SA wasn't saying that, although if you were going to have 11.1 and 11.2 separating the two points that are currently combined in 13.1, you may need to put an "and" between them because they have actually separated those and made them two completely separate points.

PN426

VICE PRESIDENT HATCHER: 11.2 raises two different points. One is the expectation point and the other is why you need 11.2 at all because by definition a casual doesn't have any entitlement to any hours.

PN427

MS LIGHT: I think in practice the way that the clauses have operated are that there are the three types of employment available and if a person does not fit within the definition of a full time or part time, they may only be engaged as a casual if they don't have an expectation of ongoing.

PN428

VICE PRESIDENT HATCHER: Sort of the default position, yes.

PN429

MS LIGHT: Yes, so it to an extent limits the circumstances in which you could engage a casual.

PN430

VICE PRESIDENT HATCHER: Yes, but Business SA's point is that they don't agree with that because they talk about the 11.1 creating the default and they want the proposition that they have put out there. That's why we say there seems to be a difference. Perhaps if the other parties can have a think about that proposition and what Business SA is putting because it seems to be that they are arguing for a departure from the default position and into one that a casual is someone who is engaged as a casual.

PN431

MS VAN GORP: Which is currently in the award.

PN432

MS BIDDLESTONE: What if a casual does have an expectation of reasonably predictable hours of work and the employer says, "I don't want to make you part time", what happens? They stay as a casual, don't they?

PN433

JUSTICE ROSS: You wouldn't have an agreement in writing to be part time and that's the problem with, I guess, the practice and the practice founded on your interpretation of how the clause is intended to operate. The other problem with that interpretation is if your interpretation was right, why did you need the transitional provision?

PN434

MS LIGHT: I understand that that came from the specific drafting of the pre modern awards that were considered in the making of the award. There were - - -

PN435

MS BIDDLESTONE: You mean the provisions.

PN436

MS LIGHT: The provisions that dealt with it potentially more clearly.

PN437

JUSTICE ROSS: Yes, it might be time to revisit those more clearly defined positions.

PN438

MS LIGHT: Certainly. In the making of this award, the major issue between the parties was whether this award fell under part of the General Retail Award.

PN439

JUSTICE ROSS: Yes.

PN440

MS LIGHT: There wasn't necessarily a consideration.

PN441

JUSTICE ROSS: No, there wasn't, no, and it's not alone in that regard. There were a number of awards that were initially in the General Retail basket and then were taken out into separate awards and as a result there was no exposure draft process and that's where we are that the moment, yes.

PN442

MR CLARKE: That's right.

PN443

JUSTICE ROSS: I don't think we are going to be able to progress it much further at the moment. Let's move to probably the ordinary hours of work is the next more significant area. Any comments or any corrections to the submissions or any comments on what the drafter has provided in response? You will see there that all parties submit to remove the cross-reference and the drafter provides a comment. It's just going to be a judgment call. But, I guess, it doesn't really seem to be a matter of - the more significant matter where it said there is a change in legal effect is the Guild's submission at the bottom of page 11. What do the other parties say about that?

PN444

MS BIDDLESTONE: I think we agree.

PN445

JUSTICE ROSS: Do you agree that that's an issue?

PN446

MS BIDDLESTONE: We agree, yes.

PN447

JUSTICE ROSS: Perhaps not on how it's dealt with and that might be a separate question we come back to you about, but is it common ground that that's an issue because of the additional hours proposition and intersection?

PN448

MS SVENDSEN: Yes, that's all of the discussions we were having.

PN449

JUSTICE ROSS: Yes, all right. Then in rostering arrangements, there were similarly some submissions and the drafter makes a comment on the Business SA and the Guild submission pointing out that the clause complained of at 14.1(e) was not drafted by him but rather was the agreed outcome of a conference between all the parties. Perhaps if you reflect on that and I will give you an opportunity to have a look at that transcript from the conference from those who have raised that issue and perhaps in seven days if you can have a look at it and just confirm what your position is. That might be the easiest way through it rather than trying to trawl up the transcript now. As we go through, if you find you need more time because we have raised a couple of issues where you are going to confirm your position or check something in seven days. I appreciate the time of the year, but I have never quite understood why it is always more difficult now. But, nevertheless, if you do need more than seven days then write to my chambers.

PN450

MS SVENDSEN: Because our brains don't work any longer.

PN451

JUSTICE ROSS: Pardon?

PN452

MS SVENDSEN: It's getting to the end of the year and our brains have ceased operating.

PN453

JUSTICE ROSS: That's all right. But you don't need to comment on this one. It's really the Guild and Business SA that really need to look at - because you have looked at the clause and the drafter is just making the point: "It's not my clause. It's your clause because that was the agreed outcome." He might not be right about that because I haven't checked the transcript, but it is something that I think you should have a look at and come back to us about and just confirm whether or not you want to pursue that.

PN454

The issues around breaks which is clause 15 of the revised exposure draft, the interested parties made a comment at paragraph 21. We understand the comment. You will see that you have raised a second point at paragraph 22 and the drafter has provided an option for dealing with that issue. What we will probably do is include the option in a revised exposure draft, given you an opportunity to have a look at it and then see whether that resolves the issue that you have raised.

PN455

Again, under wages, I think the issues are fairly clear as to what the parties say and what the response is and we will just need to look at that and make a decision about that. Again, it's not a case where it's contended that there is a change in legal effect. It's more whether something should be in the form of a table or a list.

PN456

Annualised salary does seem to raise some more significant questions. Did you want to go to that?

PN457

MS BIDDLESTONE: I just thought I would mention also in terms of the wages and allowances, there was a comment made by the interested parties in relation to the order of column 2 and 3.

PN458

JUSTICE ROSS: The ordering of them?

PN459

MS BIDDLESTONE: Yes.

PN460

JUSTICE ROSS: Yes, yes.

PN461

MS BIDDLESTONE: I just noted that that's still outstanding.

PN462

JUSTICE ROSS: No, that's fine, yes. The annualised salary matter, is this one of the awards before - - -

PN463

VICE PRESIDENT HATCHER: Don't ask me. I can't remember.

PN464

JUSTICE ROSS: Yes, probably.

PN465

MS LIGHT: It is but it has been written back in, I think, to the substantive matters being dealt with.

PN466

MS BIDDLESTONE: No, it's still in the annualised salaries Full Bench.

PN467

JUSTICE ROSS: I'm pretty sure the annualised salary Full Bench got all the - including the claims to vary and it was asked to review - because some of the claims to vary raised issues which would obviously have impact on other clauses because they are all drafted in the same. If that's the case, we might wait and see where that matter is - we will clarify where that matter is up to and let you know. A

PN468

MS BIDDLESTONE: Sorry, your Honour.

PN469

MS LIGHT: Sorry, your Honour, it has been referred. We just clarified. There is a substantive claim in relation to this to introduce annualised salaries for particular levels pharmacy assistants.

PN470

JUSTICE ROSS: Yes.

PN471

MS BIDDLESTONE: It has now been agreed so it has been referred to the pharmacy Full Bench as an agreed matter.

PN472

JUSTICE ROSS: I see.

PN473

MS BIDDLESTONE: The issue that is outstanding in relation to the plain language - - -

PN474

VICE PRESIDENT HATCHER: There is a new agreed clause which makes this moot, does it, or - - -

PN475

MS LIGHT: Yes.

PN476

MS BIDDLESTONE: It will. We can - - -

PN477

JUSTICE ROSS: It still raises the issue about the over the year type issue, but the scope of the clause has changed. Can you - - -

PN478

MS BIDDLESTONE: Yes.

PN479

JUSTICE ROSS: Have you forwarded correspondence to that effect to the other Bench?

PN480

MS LIGHT: Yes, and I understand that are due to file draft determinations in relation to that.

PN481

JUSTICE ROSS: We will take that into account in the revised exposure draft.

PN482

MS BIDDLESTONE: We should include wording to rectify this problem in that draft determination.

PN483

JUSTICE ROSS: If you can, yes, yes, absolutely.

PN484

VICE PRESIDENT HATCHER: Leaving aside that problem, is it possible to draft the agreed provision along the lines of the drafting model that is in the exposure draft?

PN485

MS LIGHT: Yes, your Honour.

PN486

JUSTICE ROSS: Then allowances. We understand the issue that's raised around whether you specify the circumstances in which it applies before you specify the amount and you have seen what the drafter says about that. There is the issue about the conjunctive and it would certainly seem to be overkill to say, "The clause applies to an employee to whom each of the following applies", and then put "and" after each one. But it really becomes a preference about which approach you adopt.

PN487

MR CLARKE: The other thing, and it might be just because it is me, but when you have got a clause called 18.1 and it starts with, "Clause 18.1 applies to an employee to each the following applies", why wouldn't you just say, "This clause"? Clause 18.1 applies - - -

PN488

VICE PRESIDENT HATCHER: I think there is some ambiguity about the term "clause" because although it is described as clause 18.1, you would probably have to say, "This subclause", and then you have to get into all that terminology, clauses, subclauses, paragraphs - - -

PN489

MR CLARKE: Yes.

PN490

VICE PRESIDENT HATCHER: It's trying to avoid all that difficulty by just numbering the clause.

PN491

MR CLARKE: Yes.

PN492

JUSTICE ROSS: I think it is just you, Mr Clarke.

PN493

MS SVENDSEN: But doesn't the same concept apply?

PN494

MR CLARKE: It's reminiscent of those horrible provisions in the Act about when you can and can't make a termination of employment.

PN495

JUSTICE ROSS: Yes, let's not go to those.

PN496

MR CLARKE: Yes, you know.

PN497

JUSTICE ROSS: No, but you can see why it says - it wouldn't say, "This clause", because the clause is clause 18, allowances.

PN498

MR CLARKE: Right.

PN499

JUSTICE ROSS: That's why. It's just for clarity, really, and I accept it's got some - - -

PN500

MR CLARKE: Maybe it's just me. I am thoroughly confused.

PN501

JUSTICE ROSS: Yes, I see what you say about the enhanced hourly rate and the proposition is, "Well, there is a new idea." You know, is it necessary to introduce something in order to give effect to it or is there another way of doing it, really? That's something we might well take back to the drafter and see whether that can be dealt with in another way. I think then you get to the taxi fare reimbursement and you will see the interested parties have put a proposition about the conjunctive, et cetera, and that's the same sort of thing that we have seen elsewhere. But then Business SA submits that there has been an alteration in legal effect. What do the other parties say about that?

PN502

MS LIGHT: We would support that submission, your Honour.

PN503

JUSTICE ROSS: What do the unions say?

PN504

MS BIDDLESTONE: I don't think we had any objection, your Honour.

PN505

JUSTICE ROSS: Yes. You all think that it changes the legal effect?

PN506

MS SVENDSEN: "To or from" would imply that if they have provided it one way, it would be okay. Whereas "and or" implies that both apply.

PN507

JUSTICE ROSS: Can I go to the overtime clause and the Guild submission, in particular, that these things are the subject of discussion at the moment that might affect - where is all up to ?

PN508

MS BIDDLESTONE: Your Honour, I might address that if I can. That is a substantive issue in relation to the SDA claim, but there have also been issues raised in terms of the change to the legal effect of the clause as a result of plain language drafting.

PN509

JUSTICE ROSS: Yes, yes.

PN510

MS BIDDLESTONE: There has been discussions between the parties and we have now resolved all of those issues including the substantive issue. We will be providing a draft determination to the Pharmacy Full Bench in February in relation to that. That captures the outstanding issues for the plain language drafting as well.

PN511

JUSTICE ROSS: Other than an issue around definitions, the second last substantive issue relates to the penalty rates. Is there anything further anyone wants to say about that?

PN512

MS LIGHT: Only that we disagree with the drafter. I mean, we have just run the penalties rate case. To make a change of language is a significant issue for us.

PN513

JUSTICE ROSS: This is exhausting. Also, it has come up in the penalty rate case because one of the parties - I think it might have been Restaurant Catering sought a change in the language from "penalty rate" to "additional remuneration" reflecting the language in the Modern Award Objective. That didn't seem to attract much support from anywhere else, from memory, and it does raise an issue about the language of 139(1), because it refers to penalty rates as being one of the matters that can be included in an award. So there are those issues to consider in relation to it as well. Does anyone else have a view in relation to the Guild's point that it should be expressed as penalty rates?

PN514

MS BIDDLESTONE: We agree, your Honour.

PN515

JUSTICE ROSS: Okay. Anything else anyone wants to say about that? All right. Then I think the next one is around the classification definitions, and the first one's a Guild point. Is there a definition of dispensary assistant?

PN516

MS LIGHT: No, your Honour.

PN517

JUSTICE ROSS: Is there any reason we couldn't have one?

PN518

MS LIGHT: There is no reason, and I understand it's agreed what that means.

PN519

JUSTICE ROSS: Perhaps if you put your heads together and come up with what a definition is, that might circumvent that problem. In relation to the second one, it does raise a question - I mean, the proposition's put by the parties that while each state has a definition of pharmacy student and pharmacy intern, the definitions may not be contained at section 5 of the legislation. Well, they may not, I mean, anything might be possible, but are they?

PN520

MR CLARKE: No, they're not, your Honour.

PN521

JUSTICE ROSS: They're not in fact contained in section 5?

PN522

MS LIGHT: No, they're not.

PN523

JUSTICE ROSS: All right.

PN524

MS SVENDSEN: Your Honour, the definitions of pharmacy student and intern, also there's an intersection between that and the Pharmacy Board under "R" for regulations.

PN525

JUSTICE ROSS: Yes, but the issue that's raised by the party is resolved by removing section 5, and you've answered the question that I had as well that - because the submission was slightly ambiguous about - because it was suggesting that it may not be contained in section 5 of all of the model, and if in fact it was contained in section 5 of all of it, it would raise a different question about whether you should just retain section 5. But you're telling me that it's not.

PN526

MS BAULCH: Section 5, sir, refers to allowing the respective boards of AHPRA to determine these sorts of things. So it's actually the Pharmacy Board that determines what the definition of a student or an intern is. Section 5 provides the vehicle for the Pharmacy Board to do that, or for the Medical Board to determine what an intern medical practitioner is, or whatever it is, as a nurse or a psychologist or whatever.

PN527

JUSTICE ROSS: Well, that's a different point.

PN528

MS SVENDSEN: The reference to section 5 is the issue, is it not?

PN529

JUSTICE ROSS: Yes.

PN530

MS BAULCH: Yes.

PN531

MS SVENDSEN: And that's what we need to remove.

PN532

JUSTICE ROSS: Yes.

PN533

MS BAULCH: Just need to remove that and then it's fine.

PN534

JUSTICE ROSS: Okay.

PN535

VICE PRESIDENT HATCHER: Can I just take the parties back to this taxi fare reimbursement, leaving aside questions of whether Uber's permissible under this arrangement. The existing clause 19.6 and the exclusion says:

PN536

The entitlement doesn't apply if the employer arranges transportation to and/or from the employee's usual place of residence.

PN537

That suggests if the employer provides transport in either direction then it doesn't apply, but the entitlement is expressed as a reimbursement only for the cost of a taxi fare from the place of employment to the employee's usual place of residence, so that's just going home. So there seems to be some disjunction in the entitlement. So Business SA's proposition seeks to say that the drafter's taken it from a one‑way reimbursement to a two‑way reimbursement, but it seems to me there's some inherent ambiguity in the current clause as to how that works.

PN538

MS LIGHT: Potentially it's an issue with how the drafter has dealt with it, so on one view the ambiguity does exist, but should it be dealt with to provide for reimbursement for to and from, or should the matters referring to: "from the employee's place of residence to their employment" be removed?

PN539

VICE PRESIDENT HATCHER: Yes, I mean I think the problem is that there's an underlying substantive issue here. It's not simply a drafting problem.

PN540

JUSTICE ROSS: But it's a matter of logic, isn't it - - -

PN541

MS SVENDSEN: The fact that it actually says, "the cost of a taxi fare from the place of employment to their usual place of residence", doesn't mean that it only goes one way. It just means that's where the end points of the journey are.

PN542

VICE PRESIDENT HATCHER: The drafter's done it so it's between, and Business SA says that means both ways, but Business SA is saying the current entitlement is only one way. It's the cost of a taxi fare from the place of employment to the employee's usual place of residence, and that seems fairly unambiguous, but then the exclusion operates two ways; that is, if you arrange the alternative, either to or from, you're excluded, and that doesn't - - -

PN543

JUSTICE ROSS: It would normally follow that you'd be entitled to the taxi fare except if the employer arranges transport for that journey - for that journey; that is, if you read the first bit as, from your place of employment to home - it usually comes up in late night working in other awards as well, that if you work after a certain time you're entitled to a taxi fare unless the employer provides you with transport home. Is there any opposition to the proposition that the exclusion only operate where the employer is providing you with transport from the place of work to home? As a matter of practicality where would it - - -

PN544

MS BIDDLESTONE: It should be both, because the clause actually says: where an employee commences or ceases work; so if you're commencing work, then you were going from home to work.

PN545

VICE PRESIDENT HATCHER: So you might be called in late for some - - -

PN546

MS BIDDLESTONE: Or you might have to go in before 7 am, because it provides prior to 7 am as well. So I think the clause is meant to operate in that it provides transport from home to work or work to home, but it's not - - -

PN547

MS SVENDSEN: Where the usual method of transport doesn't - - -

PN548

MS BIDDLESTONE: The entire clause doesn't support what the first paragraph says.

PN549

JUSTICE ROSS: Yes, but it talks about you're entitled to the reimbursement of the cost of a taxi fare if the other circumstances are met - "from your place of employment to the employee's usual place of residence."

PN550

MS SVENDSEN: But that doesn't - - -

PN551

JUSTICE ROSS: No, but you say that, but then you look at the next sentence and that sort of argues against what you're suggesting. You're suggesting that it can go both ways. The next sentence, "to and/or from", well if the previous one meant "to and/or from", why didn't it say that if you've used that language in the exclusion?

PN552

MS SVENDSEN: I think the "to and/or from" goes back to the "commences and/or ceases work."

PN553

MS BIDDLESTONE: You say it's a problem in the middle of the clause.

PN554

MS SVENDSEN: Yes, the middle of the clause.

PN555

JUSTICE ROSS: Yes.

PN556

MS SVENDSEN: I'm not sure - I mean, I think that it's being read that way. I'm not sure - oh, I don't know - I would read - because it's "and/or", so you're commencing and/or ceasing work after 10 pm or prior to 7, that's fairly clear. Now, if you're commencing work then clearly you're going from home to work.

PN557

VICE PRESIDENT HATCHER: That's the condition but the actual entitlement is what you're reimbursed for, and that says, "from the place of employment to the employee's usual place of residence."

PN558

MS SVENDSEN: But that "from" is only a - my view would be, I would argue, that "from", "place of employment to place of residence" defines the start and the finish of a journey, not which way it goes. Does that - - -

PN559

MS BIDDLESTONE: It's the same sentence, so the reference to the employee - - -

PN560

UNIDENTIFIED SPEAKER: But if you're calling it - - -

PN561

MS SVENDSEN: Sorry, the reference to - - -

PN562

MS BIDDLESTONE: - - - the expectation is that the employer will cover the fare.

PN563

MS SVENDSEN: Yes, if you're called in at 3 am the expectation would be that the employer would cover the fare.

PN564

VICE PRESIDENT HATCHER: I understand your argument, but Business SA says, I think equally arguable, it's to be read the other way, it's a one‑way entitlement.

PN565

MS BIDDLESTONE: I don't think that's what Business SA is saying.

PN566

VICE PRESIDENT HATCHER: Well, let's ask them.

PN567

MS BIDDLESTONE: Yes.

PN568

MS VAN GORP: Thank you.

PN569

VICE PRESIDENT HATCHER: I'm going on the notes.

PN570

MS VAN GORP: Business SA is not proposing that. What we looked at was that the award provision had changed. In going from the current award to the exposure draft, there was what we considered to be a change. What the current award actually means in terms of from the place of employment to the employee's usual place of residence wasn't something that we looked at and that may be the key to this particular issue.

PN571

JUSTICE ROSS: Maybe it can be the subject of discussions on the merit of what should happen. Leave aside the language of what it is at the moment.

PN572

MS BIDDLESTONE: I think we're agreed on how it currently operates. Let's agree on the merit.

PN573

JUSTICE ROSS: Yes, let's not tease that out for the moment. I think it's worth you having a discussion about it between yourselves.

PN574

MS BIDDLESTONE: Yes.

PN575

JUSTICE ROSS: Work out how it works in practice and what you think is a reasonable outcome on merit and then we will look at having something drafted to reflect that and don't get too - let's assume we are not going to change the pre-conditions. It is really only the issue of the two and is it a one-way thing or can it go in either direction and how does it work. Don't get too concerned about what the current award - how you might interpret that. Don't get into an interpretation debate just yet. We might have to get to that. But let's see if it can be resolved as a merit issue between you based on what actually happens now because that will influence us as to, well, that's how it works in practice and that's what the parties are comfortable with. If the current clause or the redraft doesn't reflect that when we would consider that as a matter of merit as to whether it should be changed and how.

PN576

VICE PRESIDENT HATCHER: Ms van Gorp, just on this issue, does the summary accurately reflect Business SA's position?

PN577

MS VAN GORP: Yes, I believe it does.

PN578

VICE PRESIDENT HATCHER: Because that clearly says that - - -

PN579

MS VAN GORP: We didn't consider that there would be an issue with the understanding of the current wording and ours was purely a comparison between the two. We're quite happy to enter into a discussion about what actually happens.

PN580

VICE PRESIDENT HATCHER: You said the current clause is clearly interpreted as only applying to a single direction.

PN581

MS VAN GORP: Yes, that is Business SA's position, but we're happy to discuss it.

PN582

JUSTICE ROSS: It might be worth just reflecting on taxi fare and bearing in mind the number of states and territories that have now legislated to permit Uber and the like. I suppose it becomes an issue. It can get a bit more problematic because if you broaden to, you know, the cost of transport, well, you don't necessarily want your employee coming up in a stretch limo. It's whether it's an issue in practice, but we just bring it to your attention.

PN583

MS BIDDLESTONE: It also raises safety issues too, your Honour, in terms of forms of transport, if they are late at night and very early in the morning.

PN584

JUSTICE ROSS: Sure, yes, well, hopefully that can arise in a taxi just as much as it can arise in an Uber. We have had plenty of incidents of assaults in taxis.

PN585

VICE PRESIDENT HATCHER: Yes, it just gets filmed when it happens.

PN586

JUSTICE ROSS: Yes, that's right. I am not advocating, but it's one of those things where the landscape has changed a bit and you might just reflect on it when you're having your discussions about how the merit of this thing might be dealt with.

PN587

MS SVENDSEN: Your Honour, before we go this morning, can we just have a brief discussion in relation to the concept of notes in the plain language award.

PN588

JUSTICE ROSS: Sure.

PN589

MS SVENDSEN: Given that the position of the Commission has been, as I understand it, the decision in 2014 was that we would have an annotated version and a legal instrument and that we would not put notes in this.

PN590

JUSTICE ROSS: But we have since then included - yes, we have since then included notes.

PN591

MS SVENDSEN: Yes, I know, but I am starting to get very confused.

PN592

JUSTICE ROSS: We have included them. We have included them, but with the agreement of most of the parties as well. We will hear the merit of the argument here. It was a general proposition put at an early stage in the discussion of it. It has been overtaken by events because notes have been included at both the request of employee representative parties, unions and employer organisations in the annual leave various iterations and in time off in lieu and those sorts of issues and there are template agreements and examples included for clarity. It's really, I think, a question about - and the earlier discussion was the concern that was raised was: "Well, are we going to have a note and example on everything?" I don't think we reached the same view on examples.

PN593

Examples are contextual, whether you think an example is going to assist or not. The drafter's comments on that aren't really - the fact that they are in legislation is not really the argument. The argument is: is the note going to assist by drawing attention to another obligation? We have recently had the payment of wages decision where there are notes there that draw attention to another statutory obligation because if you don't, you run the risk that just reading the award would put the employer in breach.

PN594

It is a case by case, but it's not as if - if the question is are we now going to be putting notes in every clause and examples - no. It's where it's necessary in order to provide clarity, you know, or make the award simpler and easier to understand than we would do it. It's not a general proposition.

PN595

MS SVENDSEN: Thank you. That's fine.

PN596

JUSTICE ROSS: It's a bit like cross-referencing, you know, that's - - -

PN597

MS SVENDSEN: Yes, sometimes it's of assistance and sometimes it isn't.

PN598

JUSTICE ROSS: The problem is if you do it in every clause, you end up with a very dense, difficult to understand thing. But there will be other - and the proposition you raise about the additional hours point is an example that there is a clear intersection here and without providing some sort of referencing, you are going to leave people confused. That's an instance where you might do it to provide more clarity about how and you might provide an example of how these things interact because it took us some time this morning to work out, well, how is it really? Do you get super? Do you not get super? Do you have any casual entitlements? It's the sort of thing that an example may well be helpful.

PN599

The drafter hasn't suggested it, but in that instance where it's an unusual provision, it's a departure from your standard making it clear, do you need to have the full written agreement? How does it all work? Then providing some clarity might be helpful in that instance. But I don't think, you know, we are not talking about examples under, you know, the meal allowance along the lines of, "If Fred works, you know, an extra blah, blah, blah, then Fred would be entitled to a meal allowance" - because the clause itself is relatively clear. But where you have got an interaction, then I think we would look at it. But, you know, it's an evolving process as well and the view on it might shift as we look at more awards and more parties.

PN600

Can I raise a different issue about how this thing is a bit of a moving feast and I can understand how that releases some frustration. But part of it is issues arise in unusual ways. There was an appeal this week where the issue of - there was an abandonment of an employment clause in an award. The question was whether the person was terminated at the initiative of the employer or by operation of that clause. But in argument, the point is raised: "Well, how can you have a clause like that anyway under section 139(1)? How does it fit? How is it a provision that can be in an award?"

PN601

There is a similar clause in at least half a dozen awards, so that will now prompt us to look at, well, let's raise the question. How do you have that provision in those awards? Some of this, as you look through it, some of that tension between the rostering change, these are issues that arise because we are starting to look at those provisions and the provisions weren't looked at when the awards were consolidated. Particularly in this award where it sort of became quite a quick exercise with no exposure draft, going on the - where does the bulk of the provision lie, let's do that, and given the timeframe and the circumstances there was no realistic alternative to that. But, yes, some issues will arise.

PN602

The key thing for us, as we do the review, is as they arise, we bring them to everyone's attention, like the abandonment point. People will see it. It's like the annualised salary. It comes up in a couple of awards. The same issue arises in the 15 or so awards that have got it, so they all go to one place and they look at that issue so we can get some consistency because the same question arises. What if you are terminated at some point during the 12-month period? How do you deal with that?

PN603

The proposition in the Pharmacy Award was it is assumed that you are just going to get what you got. In other words, that might visit unfairness. In an award with a seasonal factor, you might be employed on an annualised salary and after the peak of the 12 months finishes where you have worked, you know, many hours, then your employment is terminated, well, that would operate unfairly to the employee in those circumstances. What the solution is, well, the debate will be before that Bench. I just don't think there is a rigid rule in relation to it.

PN604

MS SVENDSEN: That's all right. I just wanted some clarity about it and whether we need to look at the notes and the content of the note and about whether we agreed on what was stated.

PN605

JUSTICE ROSS: Yes.

PN606

MS SVENDSEN: I mean, I think we kind of have, but I think we have, to some extent, been a little bit blasé about looking at what the note itself actually says because we have half in the back of our head where notes aren't going to be there.

PN607

JUSTICE ROSS: Thought: "Well, we don't want notes." No, no.

PN608

MS SVENDSEN: We don't have to worry about that.

PN609

JUSTICE ROSS: I think there are two things to look at whenever you see a note or an example. The first thing is: is it right? You have made the point about the cross-reference to 65, and it's not right, so we take that out.

PN610

MS SVENDSEN: Yes.

PN611

JUSTICE ROSS: That's the first point.

PN612

MS SVENDSEN: Yes.

PN613

JUSTICE ROSS: Is it accurate? Whether it's a note or an example. The second point is: is it a necessary addition?

PN614

MS SVENDSEN: And of assistance.

PN615

JUSTICE ROSS: Is it going to make it simpler and easier to understand? Do we need it here? Probably in the back of your mind then is: "Well, if we have it here, then why won't we have it in all these other places and then don't we end up with a more complex result?" I think that's probably the process. But, don't worry, this award will be an iterative process as will the other four or five in this project and we will see how we go at the end of that as to whether there is any more resources time or anyone is still living that can summon the energy to look at any other awards.

PN616

But we have picked the awards, as you know, through the consultative process and we have given the reason why we have picked these ones because there is a high level of award reliance or small business or, in this case, interest. It's not a bad one to focus on any way because it got a bit of a rush job in the award mod process because of the nature of the way the general retail issue was dealt with.

PN617

MS SVENDSEN: I think I might defer to others, but I think that the other concept we had that we wanted to globalise raise was the issue of consent. That is where we reach consent amongst the parties. But I think principally that's been - - -

PN618

JUSTICE ROSS: I have pretty much made my position on consent fairly clear.

PN619

MS SVENDSEN: I think - yes.

PN620

JUSTICE ROSS: But, look, certainly if it's on a merit - like, for example, the three consecutive hours point, it wasn't in the current award, but you all agree that as a matter of merit and logic, well, of course in that circumstance, we are much more inclined to say: "We had it fine." If you reach a merit position on the question of this taxi to/from - - -

PN621

MS SVENDSEN: Taxi fares.

PN622

JUSTICE ROSS: - - - that's not something we are going to be likely to - and if we were concerned about it, we would raise it with you.

PN623

MS SVENDSEN: Yes.

PN624

JUSTICE ROSS: But on other aspects you may all agree. For example, you don't like the tables or the explanation. We understand that's your view, but it's not going to determine the issue for us. We will look at your arguments, we will look at the clauses, make the comparison and make a judgment about it because it is different, as I have explained before.

PN625

MS SVENDSEN: We don't have a problem when we have a judgment that tells us why you have made the judgment.

PN626

JUSTICE ROSS: No, we will tell you, yes, don't worry about that.

PN627

MS SVENDSEN: Yes.

PN628

JUSTICE ROSS: I mean, it might be short: we just think it's simpler and easier.

PN629

MS SVENDSEN: We mightn't agree with it, but - - -

PN630

JUSTICE ROSS: No, sure. But it's better that you know that that's probably going to be - that we are going to give more weight to consent where it's that sort of merit or what should the entitlement be. But when we are looking at - you know, because these are subject judgments as well - when you're looking at something, well, is that simpler than this, you have to bear in mind that you might think it's simpler, but that might also reflect the fact that you're used to dealing with that provision.

PN631

MS SVENDSEN: We are aware of that.

PN632

JUSTICE ROSS: These are regulatory instruments and we have to be focussed on those who are not organisations.

PN633

MS SVENDSEN: If nothing else, the discussion about community pharmacies today has made that point very clear.

PN634

JUSTICE ROSS: Yes, yes. But there may be - I mean, it has been useful because it's highlighted that, well, let's not focus too much on what the definition is. Let's look at what's the intent, what's the agreed position about who should be in and out of this award. Once you have agreed that, the drafting becomes a much easier exercise particularly if you agree that if it's owned by a hospital, it's not in. Well, okay. That's a much simpler proposition than the current award in trying to overlay how all that works.

PN635

MS BIDDLESTONE: Your Honour, sorry, I just thought I would clarify what the next steps are in terms of - - -

PN636

JUSTICE ROSS: From our perspective, we will issue a decision. It will deal with, as I have mentioned, some of the matters that are raised where we feel that there is - we understand the argument and, you know, it may fall into that category that one or more of you don't like a particular way it's drafted. You are not contending that it's got a different legal effect. It's just a question of preference and we will make a call on those. We will obviously attend to the matters where the drafter has also acknowledged there is an error in cross-reference and all those sorts of things. We will pick up those.

PN637

In the contentious areas, we are likely to put propositions to you and we will await your response in relation to some of the matters that we have raised as well and the consent positions you have reached on the substantive issues, well, we will want to look at those variation determination as well. I suspect the iteration of it would be some matters will be determined, some matters won't. Then we will publish the decision with the revised exposure draft and we will be seeking further comment on the matters that are still in contention.

PN638

It will be a movement forward, but we will be doing it in bite-size bits and we are likely to - we will bite the easier bits first and hopefully you will reach some agreement around the coverage issue, the taxi and what have you, and we won't end up with very much. We might end up with a difference of view on some issues about how something should be expressed, but we hopefully will have resolved either by agreement or decision, and our preference will be agreement initially and we will decide if we have to this question of what it means. But we will proceeding fairly cautiously.

PN639

MS BIDDLESTONE: But you want something from us in seven days on some of the issues?

PN640

JUSTICE ROSS: Yes, and we will get the transcript put on the website tomorrow morning or later today, although I always ask for same day, but it never seems to get there. But it will be there shortly and you will be able to look at that and see what has been asked of you. My associate will go through it as well and identify what the matters are and we will put out a short note about that as well tomorrow. If you need more time, as I say, you know, I understand the time of year, but I would encourage you not to seek, you know, another two months to look at the taxi/Uber question or whatever it might be. Let's see if we can keep moving it along.

PN641

MR CLARKE: Sorry, can I just ask one question?

PN642

JUSTICE ROSS: Yes.

PN643

MR CLARKE: In relation to those issues where, you know, there might be consent as between the people who are participating about what would be a good wording, but you're exercising a judgment about what you think is the clear wording for everybody. Is that going to be expressed as a final view or as a provisional view?

PN644

JUSTICE ROSS: I will depend on the issue, I think.

PN645

MR CLARKE: Yes.

PN646

JUSTICE ROSS: In some instances, yes, we will say, yes, no, we think this and we will deal with it that way. In others, we might express a provisional view. It will depend on where we sit with it. We have not gone through that exercise either. There will be somewhere we might think, well, we don't agree with you, we'll do it this way. And others where we will want to raise some issues with you as to some problems with the approach that you're proposing and what our provisional view might be. But we are certainly not committing to just coming up with a decision with a whole suite of provisional views. Okay.

PN647

And I think the other issue that's been raised recently is - well, the standard clauses are before Commissioner Hunt and they're going through a process; the common clauses issue, I'll probably have a mention or a conference in relation to that at some stage towards the end of the first quarter of next year. But one issue that arises is well, to what extent are we going to get into that, because that's a large exercise. The standard clauses is a fairly confined and important exercise because they clearly are the same provision in almost all awards. And we'll probably also deal with the supported wage standard provisions. We've made statements about that and the training, et cetera, but most awards have an annual leave common clause. But I think we just need to go through a further few steps before we work out, well, what are the resource implications of looking at all of those common provisions, and is it worth the effort, because it will attract a range of interest from other awards where, at least from our perspective, there's just not going to be the bang for the buck. Black coal mining is a good example.

PN648

MS SVENDSEN: There's a lot of concern about the common clauses.

PN649

JUSTICE ROSS: Sure.

PN650

MS SVENDSEN: The standard clauses, there's less concern about.

PN651

JUSTICE ROSS: Well, standard clauses apply, where common clauses there are going to be differences between parties.

PN652

MS SVENDSEN: Yes.

PN653

JUSTICE ROSS: We just need to think about, well, here are a suite of common clauses; which ones might we usefully look at because there's very little difference between them across the award system, and they're almost standard, and it might be helpful to look at those. But, you know, do I want to have an endless debate about a common clause in the Black Coal Mining Award, which I'm sure I would have, when in fact no one's paid under it - they're all on enterprise agreements. So we'll sort through those issues, and perhaps the parties can start to think about questions of well, if we're looking at common ones, what might be a shorter list, of ones that might be usefully made as a common provision, if it's possible, because that would also deal with questions of multiple award coverage at enterprises. With some of those common provisions, if we can make them clearer and more standard, if that's possible, then that will alleviate some of the problems that enterprises face with multiple award coverage. Okay? Nothing else? All right. Thanks very much. We'll adjourn.

ADJOURNED INDEFINITELY [11.48 AM]