WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2019 WAIRC 00098 CORAM : CHIEF COMMISSIONER P E SCOTT HEARD : MONDAY, 25 FEBRUARY 2019 DELIVERED : THURSDAY, 28 FEBRUARY 2019 FILE NO. : PRES 1 OF 2019 BETWEEN : PHARMACY GUILD OF WESTERN AUSTRALIA ORGANISATION OF EMPLOYERS Applicant AND THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION OF WESTERN AUSTRALIA, MINISTER FOR COMMERCE AND INDUSTRIAL RELATIONS, SAMUEL GANCE (ABN 50 577 312 446) T/A CHEMIST WAREHOUSE PERTH Respondents FILE NO. : PRES 2 OF 2019 BETWEEN : SAMUEL GANCE (ABN 50 577 312 446) T/AS CHEMIST WAREHOUSE PERTH Applicant AND SHOP, DISTRIBUTIVE & ALLIED EMPLOYEES ASSOCIATION OF WESTERN AUSTRALIA, PHARMACY GUILD OF WESTERN AUSTRALIA, THE MINISTER FOR COMMERCE AND INDUSTRIAL RELATIONS Respondents Catchwords : Industrial Law (WA) – Application to stay operation of order – Declaration of scope of award – An appeal instituted – Special circumstances relating to employers’ incurring irrecoverable costs and changes to rosters, working arrangements, and back pay – Appeal grounds arguable – Balance of convenience Legislation : Industrial Relations Act 1979 (WA) Result : Order issued Representation: Counsel: Pharmacy Guild of Western Australia Organisation of Employers : Mr T Dixon of counsel and Mr A Drake-Brockman, industrial agent Samuel Gance (ABN 50 577 312 446) t/as Chemist Warehouse Perth : Mr N Tindley of counsel The Shop, Distributive and Allied Employees' Association of Western Australia : Mr D Rafferty of counsel The Minister for Commerce and Industrial Relations : Mr R Andretich of counsel 99 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 253 Case(s) referred to in reasons: Freshwest Corporation Pty Ltd v Transport Workers’ Union, Industrial Union Of Workers, WA Branch (1991) 71 WAIG 1746 John Holland Group Pty Ltd v The Construction, Forestry, Mining And Energy Union Of Workers [2005] WAIRC 02983; (2005) 85 WAIG 3918 RJ Donovan And Associates Pty. Ltd. v Federated Clerks Union Of Australia Industrial Union Of Workers, W.A. Branch (1977) 57 WAIG 1317 Seacode Nominees Pty Ltd As Trustee For The Stonehouse Family Trust v Nigel Anthony Penfold (2005) 85 WAIG 3926 The Automotive, Food, Metals, Engineering, Printing And Kindred Industries Union Of Workers – Western Australian Branch And Another v Anodisers W.A. And Others [2001] WAIRC 03164; (2001) 81 WAIG 1598 Western Australian Carpenters And Joiners, Bricklayers And Stoneworkers Industrial Union Of Workers v Terry Glover Pty Ltd (1970) 50 WAIG 704 Reasons for Decision 1 These are applications made under s 49(11) of the Industrial Relations Act 1979 (the Act) seeking to stay the operation of the decision of the Commission in APPL 86 of 2017 ([2019] WAIRC 00015), pending the hearing and determination of appeals FBA 2 of 2019 and FBA 3 of 2019. Background 2 The Shop, Distributive and Allied Employees’ Association of Western Australia (the SDA) and Samuel Gance (ABN 50 577 312 446) t/as Chemist Warehouse Perth (Chemist Warehouse) are in dispute about, in essence, whether the scope of the Shop and Warehouse (Wholesale and Retail Establishments) Award 1977 (the Award) covers the retail pharmacy industry. The SDA sought an interpretation of the Award (APPL 86 of 2017) pursuant to s 46 of the Act. 3 The question posed in the interpretation application was: ‘Does the Shop and Warehouse Award, as varied, apply to workers employed in any calling or callings mentioned in the Award in the Retail pharmacy industry and to employers employing those workers?’ 4 The Commission issued Reasons for Decision and a declaration that answered ‘yes’ to that question. 5 The Pharmacy Guild of Western Australia (Pharmacy Guild) was an intervenor in the proceedings before the Commission at first instance. It appeals against the decision (FBA 2 of 2019). Chemist Warehouse also appeals the decision (FBA 3 of 2019). The appeals are in essence in identical terms and seek that the declaration be quashed. 6 Both the Pharmacy Guild and Chemist Warehouse filed applications for a stay of the order of the Commission pending the outcome of the appeals (PRES 1 of 2019 and 2 of 2019, respectively). 7 Application PRES 1 of 2019 by the Pharmacy Guild sets out the following grounds for the stay of the order: 1. The errors identified in the Notice of Appeal are strongly arguable. 2. The Guild’s members have not applied the Shop Award in the past (this is the status quo). If the status quo is not maintained pending the outcome of the appeal, the members of the Guild will suffer prejudice for the reasons outlined in the Statutory Declaration including that they will: (a) have to bear the immediate cost and expense of adjusting the pay of its current employees and backpay to past and present employees; and (b) need to take steps to ameliorate the consequences of such expenses including by inter alia making staff redundant or adjusting pharmacy operating hours. 8 The application attaches a Statutory Declaration by Anthony McAnuff, the Business Development Manager for the Pharmacy Guild of Australia (WA Branch) (PGAWA). Through a service arrangement with the Pharmacy Guild, which is the applicant in this stay application, the PGAWA provides for members to obtain representation in the