Fair Work Act 2009

s.158 - Application to vary or revoke a modern award

Application by Thomas Blasioli re Pharmacy Industry Award 2020

Application to vary the Pharmacy Industry Award 2020 - clause 15 - minimum break between work periods - application dismissed.

[1] Mr Thomas Blasioli has made an application pursuant to s 158 of the Fair Work Act 2009 (Cth) (FW Act) to vary clause 15, Breaks, of the Pharmacy Industry Award 2020[1] (Pharmacy Award) to add the following additional subclause:

(a) An employee must have a minimum break of 12 hours between when the employee finishes work on one day and starts work on the next.

(b) If an employee starts work again without having had 12 hours off work, the employer must pay the employee for each hour worked at the rate of 200% of the employee's minimum hourly rate until the employee has a break of 12 consecutive hours.

(c) The employee must not suffer any loss of pay for ordinary hours not worked during the period of a break required by clause 15.3.

(d) The employer and an individual employee or a group of employees may agree that clause 15.3 is to have effect as if it provided for a minimum break of 10 hours.

[2] Mr Blasioli's application discloses that the proposed new provision is intended, in substance, to replicate clause 16.6 of the General Retail Industry Award 2020[2] (Retail Award).

[3] Mr Blasioli is employed as a pharmacy assistant and covered by the Pharmacy Award. Accordingly, he has standing to apply for a variation to the award under item 1 of s 158(1) of the FW Act.

[4] The application was initially the subject of a directions hearing before the presiding member on 15 July 2025. Apart from Mr Blasioli, the only party which appeared was the Pharmacy Guild of Australia (PGA), which at that time had not adopted a formal position as to the application but anticipated opposing it. Mr Blasioli declined the opportunity to discuss his application with other interested parties and indicated he simply wished to proceed with it. Consequently, he was directed to file an outline of submissions addressing the requirements in ss 134, 157 and 158 of the FW Act, and the evidence upon which he sought to rely in support of his application, by 5 August 2025. On 5 August 2025, Mr Blasioli filed a short submission in support of his application together with a copy of a payslip evidencing his employment as a pharmacy assistant.

[5] The matter was the subject of a further directions hearing before the presiding member on 19 August 2025. At this hearing, Mr Blasioli, the PGA and Retail and Fast Food Workers' Union Incorporated (RFFWU Inc) appeared. Mr Blasioli confirmed that he had filed all the submissions he wished to make in the matter and had declined to file any evidence (other than the payslip referred to). RFFWU Inc indicated that it did not want to say anything about the application beyond that 'we broadly support the application but we understand the difficulties before the Commission without evidence': Transcript, 19 August 2025 PN16. As a result, the matter was referred to this Full Bench for determination on the basis of the submission filed by Mr Blasioli.

[6] In his submission, Mr Blasioli describes the purpose of his application as being to ensure that employees are adequately rested between shifts but, when they are scheduled for shifts with less than the minimum break length, they are renumerated as compensation for the infringement. Additionally, he contends, the increase in cost to the employer discourages employers from scheduling employees without the minimum break period, ensuring employees are adequately rested and can work efficiently and productively. Mr Blasioli submits that the proposed variation is necessary to achieve the modern awards objective, and is specifically sought pursuant to ss 134(1)(d) and (da)(ii) of the FW Act in that:

• employees that are working shifts with less than 12 hours between work periods are not given an adequate break period between shifts;

• it is necessary for employees to have time between shifts to travel between work and home, sleep and prepare for work;

• employees without sufficient rest are likely to have decreased work efficiency and productivity and are more likely to make errors;

• this decreased efficiency and productivity of employees comes as a detriment to the pharmacy industry, as it impacts the ability to properly serve patients and customers and can cause errors having detrimental consequences;

• when two shifts have less than a 12-hour interval between them, either one or both shifts will be a late-night or early-morning shift, and this should be considered as working unsocial and irregular hours; and

• the proposed variation is therefore necessary to ensure that employees are appropriately renumerated for working unsocial and irregular hours, pursuant to the modern awards objective.

[7] Mr Blasioli submits that a number of modern awards already include provisions concerning breaks between work periods, and he provides a non-exhaustive list of 11 such awards (which includes the Retail Award). He submits:

The presence of the clause in the awards listed above sets a precedent that the inclusion of the clause is necessary for the modern awards objective to be achieved. I understand that that these awards cover different industries and therefore contain different provisions specific to their respective industry. However, many of the awards listed above have similar hours of work and scheduling to the pharmacy industry. Thus, it would not be unreasonable for these different industry awards to have similar or the same clauses regarding hours of work employment conditions, such as breaks between work periods.

[8] He also submits that a number of the pre-modernisation awards which preceded the Pharmacy Award contained provisions concerning breaks between work periods, which supports the notion that such provisions are not inappropriate for the pharmacy industry or an inappropriate burden for employers and businesses.

[9] Mr Blasioli's application seeks that the Commission exercise the power in s 157 to vary modern awards. Other than for variations to minimum wages or default superannuation fund terms, s 157(1) relevantly requires that the Commission must be satisfied that a variation is necessary to achieve the modern awards objective. The modern awards objective is set out in s 134(1), which provides:

(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(aa) the need to improve access to secure work across the economy; and

(ab) the need to achieve gender equality in the workplace by ensuring equal remuneration for work of equal or comparable value, eliminating gender-based undervaluation of work and providing workplace conditions that facilitate women's full economic participation; and

(b) the need to encourage collective bargaining; and

(c) the need to promote social inclusion through increased workforce participation; and

(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and

(da) the need to provide additional remuneration for:

(ii) employees working unsocial, irregular or unpredictable hours; or

(iii) employees working on weekends or public holidays; or

(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

[10] The consideration of whether a proposed award variation is necessary to meet the modern awards objective requires that all the matters specified in s 134(1), as relevant to the proposed variation, be taken into account and treated as matters of significance in the decision-making process, with no particular primacy being given to any of the s 134(1) matters: Application by Treves [2023] FWCFB 98 at [67]. What is 'necessary' to achieve the modern awards objective in a particular case is a value judgment, taking into account the s 134(1) considerations to the extent that they are relevant having regard to the context, including the circumstances pertaining to the particular modern award, the terms of any proposed variation and the submissions and evidence: ibid. Except in relation to proposed variations which are obvious as a matter of industrial merit, significant award changes which are reasonably contestable must generally be supported by an analysis of the relevant legislative provisions and, where feasible, probative evidence: Application by Naina re CSIRO Enterprise Award 2016 [2026] FWCFB 22 at [17]. An application to vary a modern award which is advanced by reference to the applicant's interests and circumstances only, and which is not supported by evidence or submissions addressing the circumstances of a representative cross-section of the industry or occupation covered by the relevant modern award, is unlikely to have reasonable prospects of success: ibid at [20].

[11] The case advanced by Mr Blasioli is completely insufficient to permit us to be persuaded that the variation he proposes is necessary to meet the modern awards objective. The Pharmacy Award has operated without such a provision since its establishment and, to our knowledge, no party before the filing of this application has ever identified any problem or issue arising from this which requires rectification. Mr Blasioli has provided no material demonstrating that employees covered by the Pharmacy Award are regularly, or indeed ever, required to work rosters which provide insufficient periods for rest between rostered shifts. He does not even describe any circumstance in which he has personally experienced this. In order for any proper assessment to be made as to whether the proposed variation is necessary to meet the modern awards objective, we would need to have before us evidence of rostering practices across a reasonable cross-section of the community pharmacy sector and the extent to which employees are not being provided with an adequate period of rest between shifts. As it stands, beyond a number of assertions of a largely hypothetical nature made by Mr Blasioli, there is nothing before us which would allow findings to be made about any of the matters in s 134(1).

[12] Mr Blasioli is correct that a number of modern awards have provisions similar to that which he proposes to be added to the Pharmacy Award. It is also true that, like the Pharmacy Award, many modern awards do not contain any such provision. This reflects the fact that modern awards were established in the 2008-9 award modernisation process on the basis of a consideration of the mix of terms and conditions best suited for the industries or occupations which they cover. In many cases, this consideration was informed by historical analysis of the various award provisions which applied at the time the award modernisation process was conducted. Mr Blasioli's proposed provision is derived from clause 16.6 of the Retail Award. However, his application and submissions take no account of significant differences between the Retail Award and the Pharmacy Award, including that the latter award covers professional employees (pharmacists) as well as retail employees, has a wider span of ordinary hours, a different penalty rate structure and longer permissible daily rostered hours, and does not provide for shift work. All these matters bear upon the necessity for and the practicality of the provision proposed by Mr Blasioli.

[13] For the above reasons, we do not consider that Mr Blasioli's application has reasonable prospects of success. We order that the application is dismissed pursuant to s 587(1)(c) of the FW Act.

J Cullinan for Retail and Fast Food Workers' Union Incorporated.

[1] MA000012.

[2] MA000004.

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