C2001/4444, Transcript of Proceedings [2001] AIRCTrans 2833 (23 October 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 0564

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2001/4444

COMMUNITY PHARMACY AWARD 1998

Application under section 113 of the Act
by the Association of Professional Engineers,
Scientists and Managers, Australia to vary the
above award re parental leave entitlements to
casual employees

MELBOURNE

2.15 PM, THURSDAY, 4 OCTOBER 2001

PN1

MR C. COLLISON: I appear for the Association of Professional Engineers, Scientists and Managers, Australia. Appearing with me is MR P. GYSSLINK.

PN2

MS J. HEAGNEY: I appear on behalf of the Shop, Distributive and Allied Employees' Association.

PN3

MR J. MOBAYAD: I appear on behalf of the Pharmacy Guild of Australia, together with MS D. BAKER.

PN4

MS J. WHITECROSS: I am from the Victorian Employers' Chamber of Commerce and Industry representing respondent members.

PN5

THE COMMISSIONER: Thank you. Yes, Mr collison.

PN6

MR COLLISON: Commissioner, this is an application to vary the Community Pharmacy Award 1998. The variation will extend the parental leave clause of the award to eligible casual employees consistent with a Full Bench decision of the 31 May 2001. And the reference for that is PR904631.

PN7

THE COMMISSIONER: I have got that, slightly different from your application, I think.

PN8

MR COLLISON: Is it, Commissioner?

PN9

THE COMMISSIONER: I think you missed out the nine.

PN10

MR COLLISON: I think I might have done. That might have been a typo.

PN11

THE COMMISSIONER: It didn't defeat me though.

PN12

MR COLLISON: I am pleased to hear that. Our application was lodged on 28 August together with an application for substituted service. Upon the receipt of notice of listing issued by the Commission on 6 September, I sent by registered mail to all the parties named on the substituted service, a copy of the notice of listing, together with a copy of the draft order, and I have lodged with the Registry a statement, a signed statement that that action took place, and I lodged that on 11 September. Presumably you have got that, Commissioner?

PN13

THE COMMISSIONER: Yes, thank you.

PN14

MR COLLISON: Okay. Commissioner, the draft order that I included with the application and what I sent out to the parties has got two amendments on it, so I would like to hand up a fresh draft order.

EXHIBIT #C1 DRAFT ORDER

PN15

MR COLLISON: And the two changes, Commissioner, if I could just draw your attention to them. About two-thirds of the way down, the first page, under item B, there is a paragraph for the purposes of this clause, and it then goes onto say, continuous services. That should be, continuous service. And then over on the top of the second page the date at the end of the first sentence should be the 4 October. So the sentence would read:

PN16

An eligible casual employees employed by their current employer on or prior to 1 January 1998 shall be eligible to parental leave under the term of the award as from 4 October.

PN17

It was never our intention to backdate the entitlement to the 4 July, Commissioner. The draft order that we prepared, Commissioner, I believe is consistent with the Full Bench decision and consistent with the orders coming out of that decision. This order has also been used to vary the Metal, Engineering and Associated Industries Award 1998, which was before Munro J in Sydney on 20 September. The C number there is C2001/4390. So I believe the order is consistent with the test case decision, and ask the Commission to give effect to that decision, and seek to have the Community Pharmacy Award varied from today's date. If the Commission pleases.

PN18

THE COMMISSIONER: Thanks, Mr Collison. Ms Heagney.

PN19

MS HEAGNEY: Commissioner, we support the submissions of Mr Collison today.

PN20

THE COMMISSIONER: Thank you. Mr Mobayad.

PN21

MR MOBAYAD: Commissioner, we have no objection to this provision applying to that class of employees. We don't have any objection to the test case provision. However, we have a concern in relation to the definition of the current award, which is the Community Pharmacy Award 1998. In that definition it prescribes people who are on a regular and systematic roster, should be classified as either full-time or part-time employees. We, as an organisation over the last three years, have been working towards educating our members that if you have a casual employee, a long-term casual, they should be classified either as a permanent part-time employee, or as a full-time employee.

PN22

This particular provision will contradict the definition under clause 6.3 and 6.4 of the current award, and it might give the wrong impression to some of the employers that in fact that you can employ a long-term casual on a regular and systematic basis, which is the provision in this particular test case - provides for. We tried to seek some understanding between the parties before the hearing this afternoon, in order for us to insert perhaps a notice in there to say that this particular provision does not contradict the definition of a full-time, part-time employee under the current award. However, the parties were unable to reach an agreement on that.

PN23

THE COMMISSIONER: You have got a definition of casual, in 6.5.

PN24

MR MOBAYAD: Yes.

PN25

THE COMMISSIONER: Still?

PN26

MR MOBAYAD: We still have, yes, yes, but it might send the wrong message to employers with this particular provision, where it says:

PN27

Eligible casual employees means a casual employee employed by an employer on a regular and systematic basis.

PN28

Now under the definition of 6.5, the definition of, a casual, is somebody that you employ from time to time. They don't have a regular and systematic roster.

PN29

THE COMMISSIONER: I see. Thank you.

PN30

MR MOBAYAD: What we are saying, it might send the wrong message to employers, especially those who are not members of our organisation, that might interpret this provision to saying that you actually can employ casuals on a regular and systematic basis.

PN31

THE COMMISSIONER: Yes, I follow, thank you.

PN32

MR MOBAYAD: If the Commission pleases.

PN33

THE COMMISSIONER: Ms Whitecross.

PN34

MS WHITECROSS: If the Commission pleases, the Victorian Employers' Chamber of Commerce and Industry does not, in principle, oppose the application made by the Union, being satisfied that the clause is consistent with the test case standard. However, we would support the Pharmacy Guild's submission in that there is some real risk that the insertion of the clause may create some ambiguity in the award between the definitions clause and the this parental leave clause, as it pertains to casuals. And would respectfully request the Commission's guidance in this matter, if the Commission pleases.

PN35

THE COMMISSIONER: Thank you. Mr Collison, what do you say about all of that?

PN36

MR COLLISON: Commissioner, I was obviously aware of the employers' position in this matter, and I can see where they are coming from. I would just like to make a couple of points. One, there is a situation in our industry where people can be employed on a systemic and on-going basis. And that was during the review of this award, and the changes made to this award between 1996 and 1998, which I believe you are well aware of. There was a savings clause inserted into the award in October 1997. I am not sure that it still remains there in its entirety, but the spirit is still there, plus the fact that entitlements under superseded awards are still there.

PN37

And part of that quite lengthy, at that stage, savings clause we had when we were making changes to the award, says in part:

PN38

In situations where a transfer from casual employment to full-time or part-time employment involves a reduction in salary, the employee may elect to receive a reduced salary and relevant award entitlements, or to continue to receive the current casual loading in lieu of the relevant award entitlements.

PN39

So we do have a situation there where employees in this industry who are employed under previous casual arrangements prior to 1997 could still be employed and paid as a casual, although in strict compliance with the new definitions, they would be regarded as a regular part-time employee. That is one point. The second point I would like to make is that when ourselves and the Guild undertook and re-wrote those definitions in 1996, 1997 and 1998, we were really were working towards de-casualisation of this industry.

PN40

THE COMMISSIONER: Yes.

PN41

MR COLLISON: And the situation is that prior to that time, pretty well in New South Wales and Queensland, anybody who wasn't a full-time employee, those employees that came in and did the afternoon or evening shifts, or the extended trading shift over the weekend, was regarded as a locum, and paid as a casual, and had no entitlements at all. And that was pretty well universal across the industry in those States, and most of the employees doing that were women, so they would probably be the ones more affected by this parental leave clause.

PN42

Now since the new definitions have gone into the award, while I have got no hard evidence, anecdotal evidence of speaking to our members on the telephone, I would suggest that we haven't eliminated that as much as we would have liked. We have probably got about, I would suggest, about 40 per cent of those part-time employees in New South Wales.

PN43

THE COMMISSIONER: You and the employers are at one as to your objective.

PN44

MR COLLISON: That is right, but I am saying the reality out on the ground is that a lot of employees are still employed as casuals when they shouldn't be.

PN45

THE COMMISSIONER: But as I understood what was put, it was something along the lines, and I made a note, that after B, for example, something along the lines of:

PN46

However this clause should not be seen to be inconsistent with the operation of clause 6.4.

PN47

Now that is as I understood what the proposition was coming from the other side. Does that cause you some grief?

PN48

MR COLLISON: No, Commissioner, that doesn't.

PN49

THE COMMISSIONER: That approach doesn't?

PN50

MR COLLISON: No, if we are allowed to put that approach into the award.

PN51

THE COMMISSIONER: Well - - -

PN52

MR COLLISON: I mean, it was my understanding from reading the decision that if there is any variation from this draft order, then the party seeking that variation has got to go through a 107 process.

PN53

THE COMMISSIONER: I see. Oh, dear - well, is it a variation?

PN54

MR COLLISON: I have got the decision here, Commissioner, if you want?

PN55

THE COMMISSIONER: Yes, whereabouts? Well, the problem with this, section 106 applies, you see. But what does it say?

PN56

MR COLLISON: What does it say? Point 44 in the decision says that:

PN57

We recognise that there may be some awards or industries for which the new parental leave test case standards arising from this decision is inappropriate.

PN58

And point 45 goes on to say, it's a 107 matter.

PN59

THE COMMISSIONER: Well - - -

PN60

MR COLLISON: Do you want a copy of the decision, Commissioner?

PN61

THE COMMISSIONER: No, I have a copy. But this doesn't change the standard, does it? what I have proposed - what I have raised, doesn't change the standard. The standard will still be there for a casual.

PN62

MR COLLISON: Not if you say so, Commissioner.

PN63

THE COMMISSIONER: You are in furious agreement with me, are you?

PN64

MR COLLISON: I mean, I think the words you put were quite succinct and they weren't the sort of words that were put to me by the other side at this stage.

PN65

THE COMMISSIONER: What do you say - that those words are used, Mr Mobayad?

PN66

MR MOBAYAD: We have no objections to those words, Commissioner, and in fact we encourage the acceptance by the other side of those words, exactly.

PN67

THE COMMISSIONER: The way I understood the concerns of the parties was that it wasn't to dilute your stated intention as to encourage greater use of part-time employment, and there doesn't seem to be any demur from that approach, and indeed it is a shared objective that the use of casual employment should be kept to a minimum and indeed not be used in place of part-time employment, effectively. So in looking at the Full Bench decision, and in looking at section 106, I don't think I change the entitlement that was sought to be established by the Full Bench, which was an entitlement to provide parental leave for persons who were classified as casual employees.

PN68

And all I have sought to do is assist the parties in focussing on the role that they think part-time employment should take. If there is general agreement, I am content that the power exists for me to make such a clarification with it.

PN69

MR COLLISON: What were the exact words, Commissioner, and where do they fit?

PN70

THE COMMISSIONER: Well, just a moment. Ms Whitecross?

PN71

MS WHITECROSS: If I may, Commissioner, to that end, I would be concerned only where a casual employee had been engaged on a regular and systematic basis for 38 hours per week, and would the proposed clause also include full timers as well as part timers?

PN72

THE COMMISSIONER: Part timers now get the benefit of parental leave - - -

PN73

MS WHITECROSS: As full times.

PN74

THE COMMISSIONER: And full timers get the benefit of parental leave. As I apprehend the Full Bench decision, it was to extend that benefit to casual employees. That benefit is extended by the draft order and that benefit must not be seen to be inconsistent with the operation of 6.4 for part timers. Now, that was the way I approached it. Am I not seeing anything?

PN75

MS WHITECROSS: Without the benefit of the award before me - I suppose I am speaking in terms of - 6.3 was full-time - I am working off the cuff here, Commissioner, is probably what I am suggesting. I suppose my concern is that if the casual employee has been working an average of 38 hours per week, and may more appropriately be classified as a full-time employee.

PN76

THE COMMISSIONER: It is not intended to deal with that.

PN77

MS WHITECROSS: No, that's all right. Okay.

PN78

THE COMMISSIONER: And indeed, in light of what you say, perhaps the clause could read, "However, this clause should not be seen to be inconsistent with the operation of clause 6.4" or - no, I think that is right.

PN79

MS WHITECROSS: Okay.

PN80

THE COMMISSIONER: It certainly wasn't seeking to distinguish between the definition - or to confuse, rather, the definition of full-time employee or part-time employee. My proposal was simply to ensure that nobody upon reading this term in the award thought that that undermined the desire of the parties to give some focus on a more structured relationship.

PN81

MR COLLISON: That would go at the bottom of capital A, would it, just before capital B? Is that where you - - -

PN82

THE COMMISSIONER: I had in mind it would go after you have defined what a casual employee means, after B and then "However", and then it would go on for the purpose of this clause. Well, we will all take a deep breath and vary the award.

PN83

This is an application to vary the Community Pharmacy Award 1998 to include in it a provision resulting from the Full Bench decision in what came to be known as the Parental Leave, Casual Employment Test Case, a decision handed down on 31 May 2001. The clause is in identical terms to that decided by the Full Bench. However, given the terms of the award, another sentence has been added to avoid confusion. That sentence, in my view, does not constitute an alteration to the Parental Leave Test Case standard in the form that was envisaged by the Full Bench in paragraphs 44 and 45 of its decision. In addition, I do not believe that the small variation made for clarification purposes in this award is inconsistent with the powers of the Commission that can be exercisable under section 106 of the Act.

PN84

Accordingly, I will vary the award. The award will be varied from today and the order shall remain in force for a period of six months. In accordance with Rule 69(2), I direct that the applicant lodge with the Industrial Registry before the end of 14 days the draft variation and, thereafter, the Registry will act in accordance with the balance of the rule. Copies of the rule can be made available subsequently. Thank you for your assistance. The matter is adjourned.

ADJOURNED INDEFINITELY [2.38pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #C1 DRAFT ORDER PN15