Australian Workers' Union

The Australian Workers’ Union (AWU) made an application to vary clause 15.2 of the Horticulture Award 2020, which deals with piece rates, before the Fair Work Commission. The AWU sought to insert a minimum wage floor with consequential time recording provisions in the piecework clause. The Commission had previously decided to vary the Horticulture Award in this manner, and the present matter was to determine the final variation determination, including the date of operation. Various interested parties made submissions, some opposing the insertion of a minimum wage floor and others arguing for a later implementation date. The Fair Work Commission considered the legal basis for varying its earlier decision and the appropriate date of operation for the variation.

The legal issues before the Commission included whether it had the power to vary its earlier decision inserting a minimum wage floor in the Horticulture Award, and if not, whether an implied power existed. The Commission concluded that section 603 of the Fair Work Act 2009 did not provide a source of power to vary the earlier decision since that decision was made under Part 2-3 of the Act. However, the Commission did not need to determine whether an implied power existed because, for the reasons given, the earlier decision stood. The second issue was the appropriate date of operation for the variation. The Commission considered the submissions of various interested parties on this point, including the need for employers to adjust their human resources practices and the impact on business costs and productivity.

The Commission determined that section 166 of the Fair Work Act applied to the variation determination, establishing a presumption that a determination which sets or varies a minimum wage should come into operation on 1 July in the next financial year after it is made. However, the Commission's discretion as to the timing was influenced by the facts of the case. The Commission considered submissions from the National Farmers’ Federation and Ai Group that an operative date of 1 July 2022 was appropriate to allow employers time to adjust and to manage the impact of COVID-19. The AWU argued for an earlier date of 1 January 2022. The Commission concluded that fairness to employers and the impact on business costs and productivity weighed in favour of an operative date of 1 July 2022.

The Fair Work Commission varied the Horticulture Award 2020 to insert a minimum wage floor with consequential time recording provisions in clause 15.2. The variation will come into operation on 1 July 2022. The Commission's decision was based on its earlier determination and the need to allow employers time to adjust to the changes and manage the impact of COVID-19.