WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CORAM :CHIEF COMMISSIONER P E SCOTT SENIOR COMMISSIONER S J KENNER COMMISSIONER T B WALKINGTON FILE NO. : FBA 2 OF 2019 BETWEEN : The Pharmacy Guild of Western Australia Appellant AND The Shop, Distributive and Allied Employees' Association of Western Australia, The Minister for Commerce and Industrial Relations, Samuel Gance (ABN 50 577 312 446) t/as Chemist Warehouse Perth Respondents FILE NO. : FBA 3 OF 2019 BETWEEN : Samuel Gance (ABN 50 577 312 446) t/as Chemist Warehouse Perth Appellant AND The Shop, Distributive and Allied Employees' Association of Western Australia, The Minister for Commerce and Industrial Relations, Pharmacy Guild of Western Australia Respondents DATE friday, 13 December 2019 CITATION NO. 2019 WAIRC 00869 Result Declaration issued and Award Varied 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 Declaration and Order HAVING HEARD Mr T Dixon of counsel and Mr A Drake-Brockman, industrial agent on behalf of the Pharmacy Guild of Western Australia Organisation of Employers, Mr N Tindley of counsel for Samuel Gance trading as Chemist Warehouse Perth, Mr D Rafferty of counsel for the Shop, Distributive and Allied Employees’ Association of Western Australia and Mr R Andretich of counsel for the Minister for Commerce and Industrial Relations, NOW THEREFORE the Full Bench, pursuant to section 49 of the Industrial Relations Act 1979, hereby orders — 1. THAT the appeals be upheld. 2. THAT the decision at first instance be varied to: (a) DECLARE that that Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 does not apply to the retail pharmacy industry. (b) ORDER that the Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 be varied in accordance with the following schedule and that the variations have effect from 6 January 2020. By the Full Bench CHIEF COMMISSIONER P E SCOTT SCHEDULE 1. Clause 2. – Arrangement: Delete this clause and insert in lieu thereof the following: 2. - ARRANGEMENT 1. Title 1B. Minimum Adult Award Wage 2. Arrangement 2A. No Extra Claims 3. Scope 4. Area 5. Term 6. Definitions 7. Casual Workers 7A. Nightfill Duty 8. Part Time Workers 9. Hours 10. Display of Rosters 11. Meal Breaks and Rest Periods 12. Meal Money 13. Overtime 14. Holidays 15. Annual Leave 16. Change Rooms 17. No Reduction 18. Higher Duties 19. Casual Limitations 20. Contract of Employment and Termination 21. Time and Wages Record 22. Uniforms and Overalls 23. Board of Reference 24. Supported Wages Employees 25. Country Work and Travelling Time 26. Junior Worker's Certificate 27. Sick Leave 28. Wages 28A. Structural Efficiency Agreement - Cold Storage Industry 29. Easter Week 30. Right of Entry 31. Other Provisions 32. Motor Vehicle Allowance 33. Long Service Leave 34. Shift Work 35. Payment of Wages 36. Posting of Award 37. Stand Down 38. Bereavement Leave 39. Location Allowance 40. Liberty to Apply 41. Parental Leave 42. Union Notice Board 43. Introduction of Change 44. Superannuation 45. First Aid Allowance 46. Traineeships 47. Additional Loading for Late Night Trading Establishments 48. Trade Union Training Leave 49. Enterprise Level Award Change Procedure 50. Redundancy Appendix 1 - Parental Leave Entitlements Appendix - Resolution of Disputes Requirement Schedule "A" Schedule "B" Schedule "C" Schedule D - Union Party Appendix - S.49B - Inspection Of Records Requirements 2. Clause 9. – Hours: Delete paragraph (d) of subclause (1) of Part II - Ordinary Hours of this clause and insert in lieu thereof the following: (d) "Special Retail Shops" - except as provided in placitum (ii) herein, the ordinary hours of work may be worked on any or all days of the week between the hours of 7.00 a.m. and 6.00 p.m. excepting on the day of late night trading when the ordinary hours of work may be worked between 7.00 a.m. and 9.00 p.m. 3. Clause 28. – Wages: Delete subclause (5) of Part II of this clause and insert in lieu thereof the following: (5) (a) A worker (full time, part time or casual) who is required to work any of his or her ordinary hours between 6.00p.m. and 11.30p.m. Monday to Friday inclusive in a "small retail shop" as defined or a "special retail shop" as defined shall be paid at a loading of 20% for each hour worked after 6.00p.m. For casual workers such loading shall be paid in addition to the rates prescribed in Clause 7(4) of this award. (b) A worker (part time or casual) who is required to work any of his or her ordinary hours between 6.00p.m. and 11.30p.m. on Saturday in a "small retail shop" as defined or a "special retail shop" as defined shall be paid at a loading of 20% for each hour worked after 6.00p.m. (i) A casual worker employed under paragraph (b) of this subclause shall be paid the 20% loading as calculated on the rates as determined by subclause (5) of Clause 7. - Casual Workers. (ii) A part time worker employed under paragraph (b) of this subclause shall be paid the 20% loading as calculated on the rates as determined by paragraph (b) of subclause (7) of Clause 8. - Part Time Workers. 4. A. Clause 40. – Chemists Shops: Delete this clause in its entirety. B. Clause 41. - Liberty to Apply: Delete the heading of this clause and insert the following in lieu thereof: 40. - LIBERTY TO APPLY C. Clause 42. - Parental Leave: Delete the heading of this clause and insert the following in lieu thereof: 41. - PARENTAL LEAVE D. Clause 43. - Union Notice Board: Delete the heading of this clause and insert the following in lieu thereof: 42. - UNION NOTICE BOARD E. Clause 44. - Introduction of Change: Delete the heading of this clause and insert the following in lieu thereof: 43. - INTRODUCTION OF CHANGE F. Clause 45. - Superannuation: Delete the heading of this clause and insert the following in lieu thereof: 44. - SUPERANNUATION G. Clause 46. - First Aid Allowance: Delete the heading of this clause and insert the following in lieu thereof: 45. - FIRST AID ALLOWANCE H. Clause 47. - Traineeships: Delete the heading of this clause and insert the following in lieu thereof: 46. - TRAINEESHIPS I. Clause 48. - Additional Loading for Late Night Trading Establishments: Delete the heading of this clause and insert the following in lieu thereof: 47. - ADDITIONAL LOADING FOR LATE NIGHT TRADING ESTABLISHMENTS J. Clause 49. - Trade Union Training Leave: Delete the heading of this clause and insert the following in lieu thereof: 48. - TRADE UNION TRAINING LEAVE K. Clause 50. - Enterprise Level Award Change Procedure: Delete the heading of this clause and insert the following in lieu thereof: 49. - ENTERPRISE LEVEL AWARD CHANGE PROCEDURE L. Clause 51. - Redundancy: Delete the heading of this clause and insert the following in lieu thereof: 50. - REDUNDANCY 5. Clause 21. – Time and Wages Record: Delete paragraph (g) of subclause (1) of this clause and insert the following in lieu thereof: (g) the amount of superannuation contributions made to the superannuation fund in accordance with Clause 44. - Superannuation of this Award by the employer. 6. Schedule “A”: Delete paragraph (o) of this Schedule and insert in lieu thereof the following: (o) goods and services prescribed under Schedule "B" in relation to a special retail shop. 7. Schedule “B”: Delete this Schedule and insert in lieu thereof the following: SCHEDULE "B" The following goods and services are prescribed for the purposes of sale at a special retail shop. Column 2 Goods and Services 1 : Original art and craft works; prints and reproductions of original works; art and craft related reading materials. 2 : Souvenirs featuring Australian flora, fauna, locations, characteristics or events of national significance; souvenirs projecting the flavour of the pioneering era or Aboriginal culture; original Australian art and craft works, reading materials and video cassettes of tourism significance; souvenirs and jewellery featuring Australian minerals and pearls valued at not more than $1000.00 per item; souvenirs crafted from unique Australian woods, hides or skins; Australian coins. 3 : Swimming pools; spas; patios; garages; home additions; household fixtures and fittings (excluding free standing furniture, carpets and electrical items). 4 : Flowers; greenstocks; seeds and bulbs; reticulation equipment; hoses, sprinklers and fittings fertilizers, pesticides, herbicides, applicators and related personal protective items; garden related tools and ancillary items excluding power operated tools; compost tumblers; garden sheds; landscaping and garden decorative products (excluding furniture items); plant containers and household items for the display of garden produce; garden related books and video cassettes. 5 : Video cassette tapes and video head cleaning products. 6 : Domestic construction and maintenance materials; paint and wallpaper products and accessories; tools; household fixtures and fittings (excluding free standing furniture [other than wooden outdoor furniture and accessories], carpets and electrical items); household cleaning products (excluding powered equipment); reticulation equipment, hoses, sprinklers and fittings; fertilizers, pesticides and herbicides; swimming pool chemicals and accessories; garden sheds; extension cords and electrical fittings (excluding decorative light fittings); maintenance related books and video cassettes; barbecues; kitchenware (excluding electrical items); solid fuel space heaters; outdoor lighting; water heaters; gas powered camping equipment and accessories; awnings and blinds; nursery and landscaping products (excluding fresh flowers and plants). NOTE: amended by corrigenda (2019 WAIRC 00874)