Details 

Created: 21 November 2019

The Full Bench of the Western Australian Industrial Relations Commission has upheld appeals against a decision of the Commission interpreting the scope of The Shop and Warehouse (Wholesale and Retail Establishments) State Award 1997 (the Award) as to whether it applies to the retail pharmacy industry (the first instance decision can be found here).

When the Award was made in 1977 it named a number of retail pharmacies as respondents. In 1995, the last of those named respondents engaged in the retail pharmacy industry was removed from the respondency schedule to the Award.

Earlier this year, the Commission at first instance interpreted the Award and declared that it still applies to the retail pharmacy industry in Western Australia.

The Pharmacy Guild of Western Australia (Pharmacy Guild) and Samuel Gance t/as Chemist Warehouse Perth appealed against this decision.

The majority of the Full Bench, Chief Commissioner Scott and Senior Commissioner Kenner, found that the Commission at first instance had erred in finding that there was ambiguity in the Award and in taking into account clauses in the Award beyond the scope clause and schedule of respondents. They found that there was no ambiguity in the scope clause and respondency schedule and rather that the determination of the scope clause required a fact finding exercise.

Scott CC and Kenner SC rejected an argument that the process for the 1995 amendment to the schedule of respondents did not comply with the requirements of section 29A of the Industrial Relations Act 1979 (WA) (the Act) after they found that the application to remove the named respondent from Schedule C was made by the Commission acting on its own motion. Further, as all parties to the Award listed in Schedule C had been served a copy of the claim, the legal consequence of the 1995 decision was the removal of the retail pharmacy industry from the scope of the Award from that time.

Commissioner Walkington, dissenting, found that the Commission at first instance did not err in taking into account clauses beyond the scope clause and respondency schedule in determining the scope of the Award and disagreed with the appellants contention that the learned Commissioner's reasons for decision were inadequate. Walkington C also agreed with the learned Commissioner's conclusion that the 1995 amendments were not made according to the requirements of the Act.

The decision can be read here.