Horticulture Award 2020
[2021] FWCFB 6070
•16 DECEMBER 2021
| [2021] FWCFB 6070 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.158—Application to vary or revoke a modern award
Horticulture Award 2020
(AM2020/104)
Agricultural industry | |
JUSTICE ROSS, PRESIDENT | MELBOURNE, 16 DECEMBER 2021 |
Horticulture Award 2020 – application to vary an award – Pieceworker rates –minimum hourly rate – provisional view –summary of submissions.
1. Background
[1] On 15 December 2020, the Australian Workers’ Union (AWU) made an application to vary the Horticulture Award 2020 (the Horticulture Award) 1 (the Application). The Application sought to vary clause 15.2 of the Horticulture Award, which deals with pieceworker rates.
[2] On 3 November 2021 we issued a decision 2 (the November decision) in relation to the Application. In our decision we expressed the provisional view that it is necessary to vary the Horticulture Award in the terms set out in the draft determination at Attachment D to the November decision. We invited interested parties to comment on the proposed draft variation determination and our provisional view.
[3] In a Statement dated 14 December 2021, 3 we said that we would publish a summary of the submissions received from interested parties. A summary of submissions prepared by Commission staff is attached to this Statement.
[4] Interested parties are invited to comment on the accuracy of the summary of submissions. Any comments should be submitted to [email protected] by 4 pm on Thursday 20 January 2022.
[5] As noted in our Statement of 14 December 2021, we will then proceed to finalise this matter on the papers.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR736844>
SUMMARY OF SUBMISSIONS
Note: This summary of submissions document has been prepared by staff of the Fair Work Commission. It does not represent the concluded view of the Commission on any issue.
[1] On 3 November 2021 the Full Bench issued a decision 4 (the November decision) in relation to the AWU’s application to vary the Horticulture Award. In the November decision the Full Bench expressed the provisional view that it is necessary to vary the Horticulture Award in the terms set out in the draft determination at Attachment D to the November decision (Attachment A to this Statement). The Full Bench made the following directions to provide interested parties with an opportunity to comment on the proposed draft variation determination and the provisional view:
‘1. Submissions in response to the proposed draft variation determination and our provisional view should be filed by no later than 4.00pm on Friday 26 November 2021.
2. Submissions in reply are to be filed by no later than 4.00pm on Friday 10 December 2021.
3. Any request for an oral hearing is to be made by no later than 4.00pm on Monday 13 December 2021. Absent a specific request for an oral hearing, the matter will be determined on the papers. If a hearing is required, it will be held at 9:30am on Thursday 16 December 2021.
4. If no submissions are filed opposing our provisional view, we will issue a variation determination in the same terms as the draft determination at Attachment D.
5. All submissions to be sent to [email protected].’
[2] In response to the directions, the following submissions were received:
• Agribit Software
• Australian Catholic Migrant and Refugee Office
• Australian Catholic Religious Against Trafficking in Humans
• Australian Fresh Produce Alliance
• Australian Industry Group (Ai Group)
• Australian Workers’ Union (AWU)
• Blueberry Fields
• Citrus Australia
• Citrus SA
• Dermark Pty Ltd
• F Battistel
• Fruit Growers Tasmania
• Fruit Growers Victoria
• Grandview Orchards
• Greater Shepparton City Council
• Growcom
• Gunnible Pastoral Company
• H.W.Pogue & Co.
• Industrial Committee of FGV (Fruit Growers Victoria) and CDFGA (Cobram and District Fruit Growers Association)
• Luscious Citrus Pty Ltd
• National Farmers Federation (NFF)
• Northern Victorian Fresh Tomato Growers Association
• NSW Cherry Growers Association
• NSW Farmers (Industrial) Association
• PFT Agriculture
• Roths Citrus
• Sunny Ridge
• Sutton Farms
• United Workers' Union (UWU)
[3] The following submissions in reply were also received:
• 88 Days and Counting
• Ai Group
• AWU
• UWU
• Fruit Growers Tasmania
• NFF
• NSW Farmers (Industrial) Association
[4] A number of the submissions received, particularly from individual enterprises, generally oppose the decision to insert a minimum wage floor in the Horticulture Award, citing various reasons for their opposition.5 Those submissions are not summarised in detail in this document but those parties generally submitted that the insertion of a minimum wage floor will cause:
• increased administrative and managerial burden and increased costs;
• labour shortages, loss of productive workers due to lack of incentive and a need to lay off underperforming workers;
• disadvantage or discrimination towards underperforming workers; and/or
• loss of global competitiveness in export markets.
[5] The submissions of the major parties to this matter are set out below. Submissions in relation to the proposed operative date of the draft determination are summarised from paragraph [81].
Australian Fresh Produce Alliance
[6] In relation to clause 15.2(a) the AFPA submits that the period of time necessary to attain deemed competence should be expressed in hours rather than weeks, to accommodate part-time workers and irregular rosters. 6 AFPA proposes that the definition of ‘pieceworker competent at the piecework task’ should be amended as follows:
‘pieceworker competent at the piecework task means a pieceworker who has at least 76 hours’2 weeks’ experience performing the task (for example, picking apples, picking strawberries or pruning grape vines);’
[7] The AFPA submits that draft clause 15.2(d) addresses some of the issues identified in the November decision. However it submits that draft clause 15.2(d) effectively requires piece rates to be set by reference to the slowest deemed-competent pieceworker and that manifestly, this shift of the reference point from average competent to slowest competent would significantly increase piece rates and make the new hourly rate floor superfluous. 7 It submits that the reference point for setting piece rates under draft cl 15.2(d) should be average productivity, but without reintroducing the subjective concept of an average competent pieceworker.8
[8] It also submits that clause 15.2(d) contains no express machinery provisions for how to calculate a compliant piece rate. It states that the clause should be amended to prescribe a procedure for determining the minimum piece rate. 9
[9] The AFPA submits that to fix a piece rate that complies with the uplifted hourly rate target, there is an inherent requirement to use a productivity reference point against which the uplifts to be assessed. The AFPA submits that this reference point should be 10:
a) determinate and objectively ascertainable, with express provision for regular review and adjustment; and
b) linked to mathematically average productivity rather than the productivity of the slowest competent employee.
[10] The AFPA submits that the new requirement for the employer to keep time records in draft clause 15.2(j) means that employers will now have the productivity data that can provide an objective mathematical reference point for calculating average productivity without re-introducing the existing subjective concept of an ‘average competent employee’.
[11] AFPA submits that draft clause 15.2(d) should be amended to provide this objective reference point linked to average productivity while preserving the existing wording of the headline obligation as follows:
The employer must fix the piece rate at a level which enables a pieceworker competent at the piecework task to earn at least 15% more per hour than the hourly rate for the pieceworker. To do so:
(i) The employer must determine whether the piece rate enables a pieceworker competent at the piecework task to earn the minimum amount required by this clause by reference to the average productivity of its pieceworkers competent at the piecework task during the previous pay period.
(ii) If the piecework task was not performed during the previous pay period or if no pieceworkers competent at the piecework task performed the task during the previous pay period, the employer must determine whether the piece rate enables a pieceworker competent at the piecework task to earn the minimum amount required by this clause by reference to a reasonable pre-estimate of the average productivity of pieceworkers competent at the piecework task.
(iii) The employer must review its piece rates at the end of every pay period and adjust them if necessary to achieve the minimum piece rate required by this clause.
[12] With respect to draft clauses 15.2(a)(i) and 15.2(f), the AFPA submits that these provisions give rise to 3 potential ambiguities, as follows 11:
‘First, the definition of hourly rate could be construed as requiring the 25% casual loading to be included in the hourly rate for all pieceworkers. In other words, the words “for a casual pieceworker” at the end of the definition could be read as being part of the description of the 25% loading, rather than qualifying the application of the loading to only casual pieceworkers.
AFPA submits that this should be clarified by amending the definition of hourly rate as follows:
hourly rate for the pieceworker means the minimum hourly rate for the pieceworker’s classification level plus, in the case of a casual pieceworker, the 25% casual loading under clause 11.3 for a casual pieceworker;
Secondly, draft clause 15.2(f) requires a comparison between the amount paid to the pieceworker and the amount that the pieceworker “would have received if paid for each hour worked at the hourly rate for the pieceworker”. But it does not specify over what period the comparison is to be performed.
AFPA submits that draft clause 15.2(f) should be amended to make it clear that the relevant comparison is to be done over a pay period and not for individual hours within the pay period.’
Thirdly, draft clause 15.2(f) could be construed as requiring penalties and loadings to be included when calculating “the amount [the pieceworker] would have received if paid for each hour worked at the hourly rate for the pieceworker”. Put differently, the words “if paid for each hour worked at the hourly rate for the pieceworker” could be construed as meaning “if engaged as a timeworker at the base rate of the hourly rate for the pieceworker”.
AFPA submits that draft clause 15.2(f) should be amended to make clear that the hourly rate for the pieceworker is intended to be a flat hourly rate floor.
AFPA proposes the following amendment to give effect to the last two submissions:
Despite any other provision of clause 15.2, in each pay period a pieceworker must be paid no less than the number of hours worked during the pay period multiplied by the amount they would have received if paid for each hour worked at the hourly rate for the pieceworker.’
[13] With respect to draft clause 15.2(i), AFPA submits that the words ‘must first’ suggest that the obligation to provide the piecework record must be discharged before a change in the piece rate takes effect and contends that this may not be reasonably practicable in all cases. 12 AFPA submits that these problems can be avoided without eroding the protections that the piecework record is designed to provide and proposes that clause 15.2(i) be replaced with the following:
(i) If an employer proposes to engage the pieceworker to perform a new piecework task not covered by an existing piecework record, the employer must give the pieceworker a further piecework record including the new task before commencement of the new task.
(ii) If an employer proposes to change the piece rate of a pieceworker, the employer must inform the pieceworker of the new rate before commencement of work under the new rate and must give the pieceworker a further piecework record including the new rate as soon as reasonably practicable.
[14] AFPA submits that draft clause 15.2(h) seems to contemplate that a piecework record can only cover one task, such that if an employee is engaged to perform multiple piecework tasks, they will need to be provided with a separate piecework record for each task. AFPA submits that this creates unnecessary paperwork and submits that draft clause 15.2(h) should be amended as follows to permit a single paperwork record to cover multiple piecework tasks 13:
‘Before a pieceworker begins a piecework task for an employer, the employer must give the pieceworker a written record signed by the employer (a piecework record) that must:
(i) state the date and time the piecework is to commence;
(ii) describe the task(s) for which the piece rate will be paid;
(iii) state the amount of the piece rate for each piecework task;
(iv) include the following statement: […]’
[15] AFPA further submits that the statement included with the piecework record under draft clause 15.2(h) should be amended as follows to reflect the other amendments it proposed 14:
‘Under the Horticulture Award 2020 in each pay period a pieceworker must be paid no less than the number of hours worked during the pay period multiplied by amount they would have received if paid for each hour worked at their hourly rate under the Award (including the 25% casual loading in the case of for a casual pieceworker).’
Australian Industry Group
[16] The Australian Industry Group (Ai Group) raises 2 issues in relation to the draft determination. Firstly, Ai Group submits that the definition of ‘hourly rate for the pieceworker’ in the draft cl.15.2(a)(i) should confirm that it only pertains to the minimum hourly rates under the Horticulture Award and does not incorporate over-award rates paid pursuant to an employment contract. 15 It proposed the following variation accordingly:
‘hourly rate for the pieceworker means the minimum hourly rate for the pieceworker’s classification level under this Award plus the 25% casual loading under clause 11.3 for a casual pieceworker’
[17] The second issue raised by Ai Group relates to draft clause 15.2(e). It is submitted that the draft clause should clarify that it applies only to work performed at the request of the employer. 16 Ai Group proposes a variation to the draft clause as follows:
‘If a pieceworker does an employer requests a pieceworker to perform any work in addition to the task for which they are being paid a piece rate, the pieceworker must be paid for that additional work at the hourly rate for the pieceworker.’
Australian Workers’ Union
[18] The Australian Workers’ Union (AWU) supports the provisional view and the terms of the draft determination set out at Attachment D of the November Decision. AWU submits that in addition to the minimum wage floor and time recording provisions, the changes proposed in the draft determination significantly improve the existing piecework clause in a number of important respects and are necessary and appropriate essentially for the reasons given in the November Decision. 17
[19] AWU submits that the insertion of a definition of a ‘pieceworker competent at the piecework task’ at draft clause 15.2(a)(iii) is a useful and necessary measure to address the uncertainty and ambiguity of the existing provision as interpreted in Fair Work Ombudsman v Hu (No 2). 18 It submits that the period of 2 weeks’ experience to become a competent pieceworker represents a conservative provision. For the reasons set out in the AWU’s final submissions, the evidence suggested that workers are generally able to become competent within a few days or a week of commencing.19
[20] AWU submits that the removal of the requirement that the piece rate be agreed between the employer and employee is necessary given the findings of the Full Bench that piece rates are not generally the product of any genuine negotiation and agreement. 20
[21] AWU submits that the draft clause 15.2(f) gives effect to the decision of the Full Bench to insert a minimum wage floor and is supported by the record keeping requirement in clause 15.2(j)(ii), and is consistent with its application. 21
[22] AWU submits that the record keeping requirements in draft clauses 15.2(h) and 15.2(j)(i) are consistent with the existing requirement to have a written piecework agreement, and that the additional record keeping requirements are also beneficial. 22
Fruit Growers Tasmania
[23] Fruit Growers Tasmania (FGT) filed a submission on 26 November 2021, and thereafter filed a submission in reply on 10 December 2021 whereby it made various amendments to its initial submission. The following provides a summary of FGT’s position as it currently stands in light of its submission and submission in reply. FGT’s response to submissions made by other parties is set out further below at [65]-[66].
[24] Fruit Growers Tasmania (FGT) submits that draft clause 15.2(a)(iii) raises issues of how employees can be reliably expected to demonstrate evidence of prior experience in previous workplaces, whether that experience is in “performing the task”, and how employers are to determine the veracity of these claims. 23 It submits thatan amendment to draft clause 15.2(a)(iii) is required by inserting the words “with their current employer” after the word “experience”.24 FGT further submit that the words ‘2 weeks experience’ should be replaced by ’76 hours’ experience’. FGT’s proposed amendments to clause 15.2(a)(iii) are set out below:
‘pieceworker competent at the piecework task means a pieceworker who has at least 76 hours’ 2 weeks’ experience with their current employer performing the task (for example, picking apples, picking strawberries or pruning grape vines)’
[25] FGT further submits that to assist in providing clarity of the intent and application of the minimum wage floor, a definition of ‘average hourly rate of a pieceworker’ should be added at draft clause 15.2(a)(iv) as follows 25:
‘(iv) The average hourly rate of a pieceworker for the period of payment means the calculated value of adding all piece work payments made to the pieceworker during the period of payment, and dividing this by the total hours worked by the pieceworker during the period of payment in pieceworker tasks.’
[26] FGT also proposes that draft clause 15.2(f) be amended to include a reference to the definition proposed for clause 15.2(a)(iv) as follows 26:
‘Despite any other provision of clause 15.2 the average hourly rate of a pieceworker for the period of paymentmust be no less than if paid for each hour worked at the hourly rate for the pieceworker.’
[27] FGT submits that these proposals incorporate the term ‘period of payment’ already defined in clause 16.1 of the Horticulture Award. 27
[28] In relation to draft clause 15.2(d), FGT states that the draft clause is not simple and is open to multiple interpretations based on whether the intent is that piecework rates are to be set individually or collectively across all pieceworkers competent at the piecework task, the process by which a piecework rate is to be determined to “enable” a pieceworker to attain the ‘Uplift’ and the nature of worker selection to test whether a particular piecework rate is compliant with this clause for the basis of adjustment or enforcement. 28
[29] FGT submits that new definitions be inserted into draft clause 15.2(a) to provide clarity as to the intent and application of the ‘Uplift Term’. It proposes these definitions read as follows 29:
‘(v) The average hourly rate of an individual pieceworker competent at the piecework task for the period of payment means the calculated value of adding all payments made to the pieceworker during the period of payment using piece rates, and dividing this by the total hours worked by the pieceworker during the period of payment in pieceworker tasks.
(vi) The average hourly rate of all pieceworkers competent at the piecework task for the period of payment means the calculated value of either:
• adding the average hourly rates of all individual pieceworkers competent at the piecework task for the period of payment; and
• dividing this by the number of pieceworkers competent at the piecework task for the period of payment;
or
• adding all payments made to all competent pieceworkers during the period of payment using piece rates, and dividing this by the total hours worked by all competent pieceworkers during the period of payment in pieceworker tasks.
NOTE: For the purposes of the above calculation, the average hourly earnings of any pieceworker competent at the piecework task can be no less than the hourly rate for the pieceworker as defined in clause 15.2(a)(i), as the employer is required to pay a pieceworker no less than this rate under clause 15.2(f).’
[30] FGT states that both definitions of average should be specifically included to promote the application and compliance of employers. 30
[31] In addition, FGT proposes draft clause 15.2(d) be amended as follows 31:
‘The employer must fix the piece rate at a level which ensures that the average hourly rate of all pieceworkers competent at the piecework task for the period of payment is enables a pieceworker competent at the piecework task to earn at least 15% more per hour than the hourly rate for the pieceworker. 32
National Farmers’ Federation
[32] The National Farmers’ Federation (NFF) submits that the apparent effect of provisional clause 15.2(f) is to require an employer to compare the earnings (piece rate to hourly rate) on an hourly basis and, if in any given hour, the piece rate earnings is less than the hourly rate then the grower must make up the difference for that given hour. 33 It submits that this comparison process will require the employer to engage in an audit and reconciliation for each hour for each employee’s work.34 It further submits that for any growers this is a process which they will need to perform only occasionally and this will have the greatest impact on small growers who do not have a dedicated personnel/HR resource.
[33] The NFF submits that a more manageable approach would be to require growers to engage in this comparison over a longer period. It submits that the unit of ‘comparison’ should be each pay period – provided that a pay period is no more than 2 weeks – rather than each hour. 35 It submits that this will ensure that the employee ultimately receives at least the minimum wage for the period, while making the system simpler for the growers to implement. The NFF submits that draft clause 15.2(f) should be varied as follows36:
‘Despite any other provision of clause 15.2, over the course of a full pay period a pieceworker must be paid no less than the amount they would have received if paid for each hour worked at the hourly rate for the pieceworker.’
[34] In relation to draft clause 25.2(d) and 15.2(a), the NFF submits that in combination these new provisions require the piece rate to be fixed at an amount which would enable a worker with at least 2 weeks’ experience to earn 15% more than they would otherwise earn on hourly rates but does not provide enough guidance to employers as to the type of employee or the picking rate at which the piece rate should be set. 37 It submits that the redraft does not identify where the worker should have acquired their experience and that the draft clause 15.2(d) leaves some ambiguity as to the ‘type’ of employee or employees who must be able to earn 15% more than the relevant minimum hourly rate.38
[35] It submits that clause 15.2(a) should be varied to define ‘pieceworker competent at the piecework task’ to be:
‘A pieceworker who has at least 2 weeks’ experience performing the task (for example, picking apples, picking strawberries or pruning grape vines) with the employer’s enterprise.’ 39
[36] It submits that draft clause 15.2(d) may be read to mean that the piece rate has to be set so that 40:
a) Each individual employee (with more than 2 weeks experience) is able to earn 15% more than the applicable hourly rate, so that each employee should have their own piece rate;
b) Any employee (with more than 2 weeks experience) is able to earn 15% more than the applicable hourly rate, so that the entire workforce has a piece rate set to the pick rate of just one (e.g. the fastest and most productive) worker; or
c) Every employee (with more than 2 weeks’ experience) is able to earn 15% more than the applicable hourly rate, so that the entire workforce has a piece rate set to the picking rate of the slowest and least productive worker.
[37] The NFF submits that the revised provision should retain the approach of pegging the rate to the performance of the average competent employee, so that draft clause 15.2(d) should be varied as follows 41:
The employer must fix the piece rate at a level which enables an average pieceworker who is performing the piece rate task and who is a pieceworker competent at the piecework task to earn at least 15% more per hour than the hourly rate for the pieceworker.
[38] The NFF submits that an alternative may be to require employers to set the piece rate based on the mean picking rate of all competent pieceworkers. 42
NSW Farmers (Industrial) Association
[39] NSW Farmers (Industrial) Association (NSWFA) proposes that for the purposes of clarity, an explanatory note should be inserted following the draft clause 15.2(a)(i) indicating that clause 15.3 should be taken into account when determining the hourly rate for junior pieceworkers. NSWFA submits that this approach is consistent with that taken by the Full Bench to incorporate other clauses relevant to pieceworkers into the draft clause 15.2, such as the inclusion of the note following clause 15.2(d). 43
[40] NSWFA submits that the consequence of draft clause 15.2(f), when read together with the explanation provided by the Full Bench at paragraph [574] of the November Decision, is that an employer is required to undertake a comparison between an employee’s earnings by piece rate and the hourly rate and make up any shortfall for each hour. NSWFA submits that the additional resources required for employers to meet this requirement is cost prohibitive, and requires 8 checks per employee per 8-hour day. NSWFA submits that the comparison should instead be conducted per pay period and proposes the clause 15.2(f) be amended as follows: 44
(f) Despite any other provision of clause 15.2, over the course of a full pay period a pieceworker must be paid no less than the amount they would have received if paid for each hour worked at the hourly rate for the pieceworker.
[41] NSWFA submits that the draft clause 15.2(a)(iii) raises questions on the information that employees can be reasonably expected to provide concerning their experience and the method available for employers to verify that information. To simplify this, NSWFA proposes that draft clause 15.2(a)(iii) be amended as follows:
(iii) a pieceworker competent at the piecework task means a pieceworker who has at least 2 weeks’ experience performing the task (for example, picking apples, picking strawberries or pruning grape vines) with the employer’s enterprise.
United Workers Union
[42] The United Workers’ Union (UWU) expresses support for the draft determination. 45 The UWU also makes submissions in relation to the operative date of the determination and this submission is discussed further in section 4 below.
Other submissions
[43] Of the remaining submissions received, which are predominantly from horticulture industry employers, a number contended that the draft determination should make provision for a training period or training rates for new workers. 46
[44] Four parties sought a review or clarification of the time period of over which a pieceworker’s earnings are to be compared for the purposed of meeting the minimum payment entitlement under draft clause 15.2(f). Citrus Australia submits that a period of assessment ‘more than hourly’ should be inserted in clause 15.2(f). 47 Growcom and Fruit Growers Victoria submit that a review should be conducted over a full pay period.48
[45] Comments were also received from horticulture employers in relation to the benchmarks set by the draft determination. Sunny Ridge submits that the draft determination fails to define the ‘average competent worker’ or provide a formula for easily and clearly identifying the same. 49 Growcom submits that there needs to be greater guidance in the final determination as to how piecework rates are calculated and set and states that the employee or cohort of employees to be used as a reasonable benchmark of productivity requires clarification.50
Submissions in reply
Australian Workers’ Union
[46] The AWU submits the proposal from Citrus Australia that a trainee wage rate be inserted into the Horticulture Award is beyond the scope of the submissions sought by the Full Bench in relation to the draft determination and could not reasonably occur as part of the current proceedings given it would need to be justified by evidence and work value reasons.51
[47] In relation to the NSWFA proposal of inserting a note alerting users to the junior rates in clause 15.3 of the Horticulture Award below the definition of ‘hourly rate for the pieceworker’ in draft clause 15.2(a)(i), the AWU submits it does not dispute that the wage floor for a junior employee is determined by reference to the percentages in clause 15.3 and does not oppose the addition of a note in the following terms at the end of draft clause 15.2(a)(i)52:
‘NOTE: Clause 15.3 contains percentages used to calculate the minimum hourly rate for junior employees.’
[48] The AWU does not oppose AFPA’s proposed amendment to clause 15.2(a)(iii).
[49] The AWU states that the submissions of the NFF, NSWFA and AFPA are all consistent in proposing that the appropriate period for the comparison of piecework earnings and hourly rates is the pay period albeit the NFF suggests an outer limit of 2 weeks. The AWU submits that if the Full Bench considers there is merit to the employers’ concerns about draft clause 15.2(f) of the draft determination, the AWU submits that a per day or shift reconciliation would be appropriate rather than per pay period. 53
[50] The AWU submits that in circumstances in which the overwhelming majority of employees are engaged as casual employees and there is a high level of itinerant and transient work, calculation of the minimum hourly payment should occur on a daily or shift basis54. It further submits that a calculation on an, at most, daily or shift basis will provide individual employees with a straightforward capacity to consistently monitor whether the piece rate is sufficient to ensure that their earnings are exceeding the minimum hourly rate.
[51] The AWU submits that a per day or per shift reconciliation would resolve the double payment concern expressed by FGT and is consistent with the manner in which the Greater Shepparton City Council has assumed the wage floor will operate. 55
[52] The AWU submits that a per day or shift reconciliation could be included in the draft determination by amending draft clause 15.2(f) to read as follows:
‘Despite any other provision of clause 15.2, for each day or shift worked a pieceworker must be no less than the amount they would have received if paid for each hour worked at the hourly rate for the pieceworker.’
[53] In relation to the calculation of the piecework rate, the AWU opposes the AFPA and NFF’s proposed amendments to draft clause 15.2(d) stating that the changes would potentially result in around half of the employees who meet the definition of a ‘pieceworker competent at the piecework task’ not receiving the 15% uplift.
[54] The AWU submits that the draft determination effectively requires an employer to set the piece rate at a level that would enable a worker with 2 weeks (or potentially 76 hours) of experience at the relevant task to earn at least 15% more than the hourly rate for the pieceworker. Provided the piece rate is set using this method, the earnings of each pieceworker will fluctuate according to their productivity in accordance with the intent of the piecework arrangements, subject to the hourly wages floor.56
[55] The AWU submits that the approach in the draft determination is much simpler than the current provisions and that the employer parties are overstating the difficulties by failing to adequately recognise that proposed clause 15.2(d) is not prescribing a minimum payment rate for each employee, it is prescribing how the piece rate must be set by the employer.57
[56] The AWU submits that the alternative proposals advanced by the AFPA and the NFF would reintroduce the subjective and uncertain features of the existing provision which the Full Bench found unsatisfactory.58 The AWU accepts that an estimate from the employer would be required if the task has not previously been performed by an employee for 2 weeks. However, it is unnecessary for express provision to be made in this respect in the draft determination.59
[57] The AWU does not consider that the proposed amendments to draft clause 15.2(a)(iii) by the NFF and NSWFA are necessary.60 The AWU submits that an employer will logically draw upon experience from their own farm to set a rate that would enable a pieceworker with 2 weeks (or 76 hours) of experience performing the task to earn the 15% uplift. If there is no relevant experience, they will need to estimate the productivity of an employee with that level of experience.
[58] The AWU opposes the AWU’s proposed amendments to draft clause 15.2(i), stating that the draft determination appropriately requires a new piecework record to be provided to the pieceworker before the relevant work commences. The AWU states that this ensures that the employer and employee are both clearly informed in writing about the applicable piece rate whenever the relevant work is being performed.61
[59] The AWU states that given the compliance issues faced by this industry and the significant component of overseas workers, it is not appropriate for a record that sets the piecework rate of pay to be provided by the employer by reference to a vague standard such as ‘as soon as reasonably practicable’.62
[60] The AWU contends that Ai Group’s amendment to draft clause 15.2(a)(i) is unnecessary.63 It is accepted by the AWU that the wage floor is intended to protect the minimum rates in the Horticulture Award and not higher contractual rates but submits that the wording in the draft determination reflects this.
[61] The AWU also submits that AFPA’s variation to draft clause 15.2(a) is unnecessary, stating that the wording in the draft determination is clear.64
[62] The AWU submits that Ai Group’s proposed amendment to draft clause 15.2(e) should be rejected stating that the amendment proposed is likely to generate disputes about whether a particular task was requested by the employer and whether a separate explicit request must be made on each occasion a certain task, such as cleaning up, is undertaken.65 It submits that if an employee is at work at the direction of the employer and is not taking an unpaid break, the employee is entitled to be paid if the piecework task is not being performed. It is submitted that Ai Group’s suggestion may permit an employer to argue that it is not required to pay wages to an employee who stops performing piecework to do necessary associated work (such as cleaning or retrieving equipment), unless directly requested to do so by a supervisor. It submits that such an outcome is inconsistent with the wages-work bargain at the heart of the employment relationship.
[63] In relation to proposed clause 15.2(f), the AWU opposes AFPA’s proposed insertion of the words ‘in each pay period’.66 Further, it does not consider that the other changes proposed by AFPA are necessary.67 It states that the wage floor in clause 15.2(f) is linked to the definition of ‘hourly rate for the pieceworker’ in clause 15.2(a)(i) and submits that definition is confined to the minimum hourly rate plus the 25% casual loading if applicable. The AWU states that penalties and loadings are not included in this definition and hence are not encompassed by the wage floor in clause 15.2(f).
[64] In relation to clause 15.2(h) the AWU accepts that a single piecework record can cover multiple piecework tasks and does not consider a variation to the draft determination as proposed by the AFPA is necessary for this to be an option for employers.68
Fruit Growers Tasmania
[65] FGT supports the proposal by the AFPA to amend the definition of a “pieceworker competent at the piecework task” in draft clause 15.2(a)(iii) to specify 76 hours’ experience instead of 2 weeks’. Together with the proposal in its submission of 26 November to insert the words “with their current employer”, FGT submits that draft clause 15.2(a)(iii) should be amended as follows:
(iii) pieceworker competent at the piecework task means a pieceworker who has at least 76 hours’ 2 weeks’ experience with their current employer performing the task (for example, picking apples, picking strawberries or pruning grape vines); 69
[66] FGT also supports the AFPA’s submission that draft clause 15.2(a)(i) should be clarified to remove potential ambiguity about the application of casual loading and supports the AFPA’s suggested rewording of the clause. However, FGT submits that draft clause 15.2(a)(i) can be further clarified by incorporating the wording already used in draft clause 15.2(h)(iv), as follows:
(i) hourly rate for the pieceworker means the minimum hourly rate for the pieceworker’s classification level under the Award (including the 25% casual loading for a casual pieceworker) plus the 25% casual loading under clause 11.3 for a casual pieceworker
NSW Farmers (Industrial) Association
[67] In its reply submission70 The NSWFA supports the proposal to vary the definition of ‘pieceworker competent at the piecework task’ in draft clause 15.2(a)(iii) to specify experience in work hours instead of weeks. The NSWFA submits that 76 work hours is a more accurate expression of the experience required for a pieceworker to be considered competent than 2 weeks.71
[68] The NSWFA opposes the adoption of FGT’s alternative method determining the piecework rate to enable pieceworkers to attain ‘uplift’ and submit this method is even more complex than the method proposed by AFPA, which itself was rejected in the November Decision as too complex.72 The NSWFA submits that the FGT’s method is not compatible with the principle that the piece rate must be set in advance, as specified in clause 15.2(h), would require growers to review applicable piece rates retrospectively and excessively add to the administrative burden already imposed with the introduction of a minimum hourly payment for pieceworkers.73
[69] The NSWFA submits that the draft clause 15.2(d) could be interpreted to be saying that all competent pieceworkers must earn at least 15% more per hour than the applicable hourly rate, resulting in the productivity of the slowest piecework determining the piece rate. The NSWFA submits that there is no justification for this in the November Decision.74
[70] The NSWFA submits that draft clauses 15.2(h) and 15.2(i) in combination imply that a piecework record can only specify one piece rate and a further record must be issued whenever the piece rate changes. The NSWFA submits this would create a significant administrative burden for growers considering the piece rate may change frequently to account for different crops and varieties of crops being picked concurrently or in close timeframe with each other on the same farm.
[71] The NSWFA supports the AFPA’s proposal to amend draft clause 15.2(i), as it enables several piece rates to be set in advance for the range of tasks workers would be assigned to, while maintaining the obligation for employers to notify workers of the application piece rates prior to the commencement of the piecework task.75
United Workers’ Union
[72] The UWU submits that contrary to the submissions of the employer parties, proposed clause 15.2(d) does not require that the piece rate be set so that every employee who is a ‘pieceworker competent at the piecework task’ earns the 15% uplift. 76 It states that, rather, the clause requires that the rate be set so that a competent pieceworker is enabled to earn the 15% uplift. The UWU submits that accordingly it does not consider necessary the proposed changes by FGT, AFPA and NFF that would require the piece rate to be fixed in accordance with the average pick rates of pieceworkers.77
[73] In relation to draft clause 15.2(f), the UWU does not agree that the wording of the draft clause requires employers to conduct a separate and discrete comparison process, each and every hour of the amount paid to employees through piece rates, against the applicable minimum hourly rate of pay, or that each and every hour an employer is then required to reconcile those 2 amounts to ensure that employees earn at least the minimum hourly rate of pay per hour. 78 However the UWU would support an amendment requiring a comparison and reconciliation of the amount paid in piece rates against the applicable minimum hourly rate of pay on a per shift or per day basis.79
[74] The UWU does not agree to any proposed amendment regarding verbal changes to piecework rates and submits that an employee has a right to certainty in respect of rates of pay and therefore, a right to a written record of their rate of pay prior to commencing the piecework task. 80
88 Days and Counting
[75] 88 Days and Counting filed a submission in reply that expressed support for the arguments presented by the AWU and the UWU. 81
[76] In light of AWU’s submission that fruit pickers are able to ‘become competent within a few days or a week of commencing’, 88 Days and Counting submits that the time required to gain competency needs to be reduced to one week instead of 2 weeks.
[77] 88 Days and Counting agrees with AFPA’s definition of an ‘average competent pieceworker’.
[78] However, it opposes the proposed amendment to draft clause 15.2 (a) put forward by the NFF. It states that these proposed changes do not adequately set a time limit for developing the competency of a piece worker and do not take into account their past experience picking and pruning similar fruit and vegetables. 82
[79] 88 Days and Counting opposes Ai Group’s amendment to draft clause 15.2(e) stating that if this amendment is accepted, farming organisations will utilize labour hire companies as a loophole to get around adequately paying piece workers for any additional work undertaken. 83
[80] 88 Days and Counting supports AWU’s submission in relation to draft clauses 15.2(h) and 15.2(j)(i) and UWU’s in relation to clause 15.2(j)(ii). 84
Operative date of the determination
[81] Submissions from the AWU, UWU, FGT, NFF, AFPA and NSWFA in relation to the operative date of the proposed changes are summarised below.
[82] The UWU and AWU contend that the operative date of the variation determination should be 1 January 2022. 85
[83] The UWU submits that the Horticulture Award as it stands does not prescribe award minimum wages for pieceworkers, however workers doing the same work as pieceworkers, but who are paid on a time basis are entitled to receive the minimum rate of pay that the Commission has determined is appropriate for the work they are performing. 86 The UWU further submits that the Commission has determined that the introduction of the minimum wages floor, and consequently the record of hours of work, is necessary to meet the modern awards objective. The UWU submits that if the variation does not take effect until 1 July 2022, it would result in a further seven months of employees being subject to a modern award that does not meet the modern awards objective.87
[84] The AWU submits that s.166 of the Fair Work Act 2009 (the Act) must be applied and cite the Full Bench’s consideration of appropriate transitional arrangements in the penalty rates matter of the 4 yearly review. 88 AWU submits that a discretionary matter, such as whether it is appropriate to depart from the effective default operative date of 1 July in s.166 of the Act, will turn on the facts of the particular case, rather than previous decisions or principles.
[85] The AWU submits that the findings in the November Decision of widespread underpayment of pieceworkers in the industry and that a significant proportion of these pieceworkers earn less than the National Minimum Wage are compelling reasons for the Horticulture Award to be varied as soon as possible and that it would not be appropriate for the variations to take effect on 1 July 2022. 89 It further submits that given the widespread non-compliance with the existing piecework clause, it is inappropriate for the current provisions to continue to operate until 1 July 2022, and that the findings justify urgent action by the Commission.
[86] The AWU submits that it agrees with the November Decision at [561] that the draft determination will make the piecework term simpler, reduce the regulatory burden and promote compliance and that employers and employees should not have to wait until 1 July 2022 for these outcomes. 90 AWU further submits that the findings in the November Decision at [368] and [525] in relation to an expected increase in productivity from the introduction of the changes indicate that negative impacts on employers from an earlier operative date will be manageable and will not outweigh the positive factors identified.91
[87] The AWU submits that if the variation does not take effect until 1 July 2022, there may be an influx of applications for approval of enterprise agreements prior to this date, as employers may attempt to take advantage of the transitional period to ‘lock in’ existing piecework rates. It points to what it submits as a previous example of this in relation to overtime entitlements for casual employees in the Horticulture Award in 2019 and similar cases prior. AWU submits that these experiences provide another factor why it is appropriate for the variation to take effect on 1 January 2022. 92
[88] The AWU submits that an operative date of 1 January 2022 is not unreasonable given that employers have been on notice about the nature and effect of the Application for almost 12 months, and the content of the draft determination since 3 November 2021. 93
[89] FGT and AFPA submit that the proposed variations should come into effect on 1 July 2022, generally contending that time is needed for employers to be ready to comply with the variations. 94
[90] The AFPA submits that employers will need to make financial arrangements to cope with increased labour costs, adjust their payroll systems to correctly calculate pieceworker pay, cull unproductive employees and adjust recruitment to become more selective in hiring and put in place additional management and supervision for pieceworkers. It submits that employers need time to understand and implement the proposed changes to ensure compliance on implementation. 95
[91] FGT submits that the Decision will require employers to design, construct and implement comprehensive and cost-effective ‘smart’ systems, employ new employees or at the very least train current employees, to be able to ensure they comply with draft clause 15.2 and to do so will take time. 96
[92] The NFF submits that the variation should come into operation on 1 July in the next financial year after the determination is made. It submits that it would not be appropriate for the determination to take effect on another day per s.166(1)(a), noting that the November Decision and the new provisions will significantly increase many farms’ wage bill which would have already budgeted until the end of the 2021/22 financial year. 97 The NFF submits further that to adjust to and correctly implement the new provisions growers will have to adopt significant changes to the administrative processes of farm businesses. This will be made more difficult by the uncertainty surrounding COVID-19 and the fact that law and policy, particularly as it relates to labour movement, are changing rapidly and very difficult to anticipate.
[93] NSWFA submits that a substantial transition time is required from the finalisation of the amended piecework provisions to their operative date. NSWFA submits that remaining compliant with the introduction of the minimum hourly rate will involve additional employment costs and administrative requirements, changes necessary to maintain workforce efficiency to justify the value for the minimum hourly rate and/or additional costs to pay underperforming employees the minimum rate, costs which it submits are likely to be absorbed by growers. NSWFA also cites factors such as the nature of tree crops inhibiting effective on-going supervision of pickers, time constraints during harvest season where large numbers of workers are employed for short periods, the lack of dedicated human resources personnel in small and medium growers, the need to develop pay software to adjust for the new piecework arrangements as well as labour shortages currently affecting horticulture industry and the need to engage with labour hire companies as other factors favouring a substantial transition period. 98
[94] Submissions in relation to the operative date were also received from Citrus Australia, Fruit Growers Victoria, the Greater Shepparton City Council, Growcom, H.W. Pogue & Co, the Northern Victorian Fresh Tomato Growers Association and Sunny Ridge. These parties favour a delayed operative date with several submissions citing various necessary changes to business practices and time for the training and hiring of staff to accommodate the proposed variations.
[95] Northern Victorian Fresh Tomato Growers Association and Greater Shepparton City Council submit that an operative date 6 months after date of determination is appropriate. Growcom and Fruit Growers Victoria support an operative date of 1 July 2022.
Submissions in reply regarding operative date
Ai Group
[96] Ai Group opposes the operative date of 1 January 2022, stating that the relevant amendments should not be made before 1 July 2022. It submits that the amendments will have a substantial impact on employers who will need to make significant changes to their payroll and workplace arrangements and that the amendments could also result in the loss of employment for many employees if employers are not given sufficient time to adjust to the new arrangements.99
Ai Group submits that the AWU’s submission should not dissuade the Commission from considering past approaches to determining appropriate operational dates, particularly when these pertain to award amendments which will lead to an increase in employment costs.100 It submits that the Commission routinely takes into consideration past decisions with respect to discretionary matters.
[97] Ai Group contends that the AWU’s argument that Commission should determine an operative date of January 2022 on the grounds of concerns that there will be an influx of applications for the approval of enterprise agreements prior to the operative date in order to avoid the impacts of the November Decisionshould be rejected.101 It contends that the AWU has provided no evidence that such an influx has emerged or that numerous employers in the horticulture industry have commenced bargaining in response to the decision.
Australian Workers’ Union
[98] The AWU relies on its submissions filed on 26 November 2021 which propose an operative date of 1 January 2022.102 It submits that it would be contrary to the modern awards objective to permit the current clause to continue operating until 1 July 2022 having regard to the findings of the Full Bench that there is widespread non-compliance with the current piecework conditions in the Horticulture Award. It further states that allowing the current clause to continue operating until 1 July 2022 would continue the existing ‘compliance traps’ identified in the Full Bench’s findings.103
Fruit Growers Tasmania
[99] FGT submits that there is no support for the AWU’s assertion that negative impacts for employers from an earlier operative date are likely to be manageable, and reiterates its previous submission that an operative date of earlier than 1 July 2022 is not manageable for employers and will not be conducive to compliance. 104
[100] FGT submits that it is clear from its initial submissions on the draft determination and those received from the AFPA and the NFF, that the draft determination without amendment is not simpler and easier to understand, as the AWU submits, and as such will not promote compliance. Accordingly, FGT submits that there is no realistic case to support an operative date of 1 January 2022.
[101] In response to the AWU regarding concerns that an influx of enterprise agreements may be made prior to 1 July 2022 to frustrate the effects of the amendments, FGT submits that it has seen no evidence of this. FGT also submits that there is no merit to the AWU’s argument that employers have been on notice about the nature and effect of the application since late 2020 as the timing of an application is irrelevant. FGT submits that it is the timing of the decision and resulting variation that is relevant and must be complied with, and the final decision is yet to be made. 105
[102] FGT submits that insufficient argument has been presented that would justify the Commission being satisfied it is appropriate to specify a day other than 1 July 2022, as normally required under s.166 of the Act, and that an earlier date is unworkable and would seriously compromise the objective of improving compliance.
National Farmers Federation
[103] Noting the finding in the November Decision that there is widespread non-compliance with clause 15.2 of the Horticulture Award, the NFF submits that a rapid introduction of the new provisions may in the short-term result in greater levels of award non-compliance. The NFF submits that growers need time to adapt their workplaces and administrative systems to the significant changes to the management of labour on farms that the new provisions will mandate.106
[104] The NFF submits that the AWU and UWU’s proposed start date of 1 January 2022 would see the changes introduced while growers are working long hours focused on harvest, and with professional support services unable to assist them to implement change during the Christmas and New Year’ period. The NFF submits that 1 January 2022 would be exceedingly difficult for growers to achieve and in order to enable compliance and allow for a reasonable transition period, the presumptive commencement date of 1 July 2021, established by s.166(1)(a) of the Act, should be retained.
[105] The NFF submits the Full Bench’s finding, relied on in AWU’s submissions, that the new provisions will increase productivity due to the introduction of an incentive to reduce the current cohort of unproductive workers, is premised on the assumption that growers will be able to replace these workers with productive ones. The NFF submits that this assumption is problematic considering the well documented workforce shortages affecting the industry and that even assuming this is true, it will take time to achieve.107 As a result, the NFF submits that the AWU’s submissions in this respect militates against an early implementation and supports the retention of the presumptive commencement date of 1 July 2022.
[106] In respect of the AWU’s submission that enterprise agreements applications sought to nullify the effect of overtime for casual provisions introduced by the Commission in 2019, the NFF submits these claims are speculative and made without supporting evidence. Even accepting the AWU’s claims, NFF notes that the AWU acknowledge that a number of the applications were ultimately dismissed as objectionable and submits there is no reason to conclude this would not happen again.108
[107] The NFF submits that the fact that some growers have been on notice as to the AWU’s application is irrelevant. The NFF submits that it is not open to the Commission to conclude that growers should have started to prepare for the changes in December 2020, when AWU’s Application was made, and it is unreasonable to expect growers to begin preparations until a final decision is reached.109
NSW Farmers (Industrial) Association
[108] The NSWFA submits that adequate time should be afforded between the finalisation of the piecework term and the operative date, to allow for industry to communicate to growers about the changes in detail, and to enable growers to assess and implement the measures required to comply. The NSWFA submit that there is no appropriate reason for an operative date earlier that 1 July 2022.110
United Workers’ Union
[109] The UWU submits that the employer submissions which seek an operative date later than 1 January 2022 are unpersuasive for the following reasons111:
(a) The operative date should be delayed for harvest periods: The horticulture industry contains a variety of crops that have different harvest periods throughout the year. There is no one time that the determination can come into force that will not affect the harvest period of a particular crop or grower.
(b) The operative date should be delayed to allow time for training of supervisors: Employers already employ supervisors and monitor the performance of pieceworkers through employee pick rates. Any necessary performance management changes can be implemented through existing practices.
(c) Employers require additional time to make the necessary administrative and record keeping changes: The employer is simply required to extend their hours of work record keeping to apply to pieceworkers. Additionally, as stated earlier in these submissions, the UWU does not agree that employers are required to conduct a discrete comparison and reconciliation process for each and every hour that piecework is performed. This reduces the potential administrative burden outlined in employer submissions;
(d) Uncertainty regarding labour supply means the operative date should be delayed: It is not evident that issues in labour supply impacts on an employer’s ability to implement changes as a result of the draft determination.
(e) Renegotiation of contracts with labour hire providers: As the employer, it is the responsibility of the labour hire company to ensure that it is paying the correct rates of pay to its employees. Therefore, the use of labour hire contractors should not impact upon the operative date of the determination.
88 Days and Counting
[110] 88 Days and Counting submits that the date should brought forward to 1 January 2022 from 1 July 2022 as per the Section 166(1) of the Act.112
1 Fair Work Commission, Horticulture Award 2020, MA000028.
2 [2021] FWCFB 5554.
3 [2021] FWCFB 6067
4 [2021] FWCFB 5554.
5 Blueberry Fields submission, 26 November 2021; Citrus Australia submission, 26 November 2021; Citrus SA submission, 26 November 2021; Dermark Pty Ltd submission, 26 November 2021; F Battistel submission, 26 November 2021; Fruit Growers Victoria submission, 26 November 2021; Grandview Orchards submission, 25 November 2021; Greater Shepparton City Council submission, 26 November 2021; Growcom submission, 26 November 2021; Gunnible Pastoral Company submission, 22 November 2021; H.W.Pogue & Co. submission, 24 November 2021; Industrial Committee of FGV (Fruit Growers Victoria) and CDFGA (Cobram and District Fruit Growers Association) submission, 26 November 2021; Luscious Citrus Pty Ltd submission, 26 November 2021; Northern Victorian Fresh Tomato Growers Association submission, 26 November 2021; NSW Cherry Growers Association submission, 26 November 2021; PFT Agriculture submission, 29 November 2021; Roths Citrus submission, 25 November 2021; Sunny Ridge submission, 26 November 2021; Sutton Farms submission, 26 November 2021.
6 AFPA submission, 26 November 2021 at 12.
7 AFPA submission, 26 November 2021 at 2(a)(i) and 13(a).
8 AFPA submission, 26 November 2021 at 2(a)(i).
9 AFPA submission, 26 November 2021 at 2(a)(ii).
10 AFPA submission, 26 November 2021 at 14.
11 AFPA submission, 26 November 2021 at 18-27.
12 AFPA submission, 26 November 2021 at 29.
13 AFPA submission, 26 November 2021 at 30.
14 AFPA submission, 26 November 2021 at 31.
15 Ai Group submission, 26 November 2021 at 2 and 5.
16 Ai Group submission, 26 November 2021 at 2 and 8.
17 AWU submission, 26 November 2021 at 4.
18 [2018] FCA 1034
19 AWU submission, 26 November 2021 at 5.
20 AWU submission, 26 November 2021 at 6.
21 AWU submission, 26 November 2021 at 7.
22 AWU submission, 26 November 2021 at 8.
23 FGT submission, 26 November 2021 at 6.
24 FGT submission, 26 November 2021 at 7, and submission in reply, 10 December 2021 at 12.
25 FGT submission, 26 November 2021 at 21.
26 FGT submission, 26 November 2021 at 22, and submission in reply, 10 December 2021 at 15.
27 FGT submission in reply, 10 December 2021, at 9-15.
28 FGT submission, 26 November 2021 at 29.
29 FGT submission in reply, 10 December 2021, at 23.
30 FGT submission in reply, 10 December 2021, at 22.
31 FGT submission in reply, 10 December 2021, at 24.
32 FGT submission, 26 November 2021 at 33.
33 NFF submission, 26 November 2021 at 4.
34 NFF submission, 26 November 2021 at 5.
35 NFF submission, 26 November 2021 at 11.
36 NFF submission, 26 November 2021 at 13.
37 NFF submission, 26 November 2021 at 17 and 18.
38 NFF submission, 26 November 2021 at 19 and 21.
39 NFF submission, 26 November 2021 at 20.
40 NFF submission, 26 November 2021 at 22.
41 NFF submission, 26 November 2021 at 23.
42 NFF submission, 26 November 2021 at 24.
43 NSW Farmers (Industrial) Association submission, 26 November 2021, at 7.
44 NSW Farmers (Industrial) Association submission, 26 November 2021, at 8-13.
45 UWU submission, 26 November 2021.
46 Citrus Australia submission, 26 November 2021; Fruit Growers Victoria submission, 26 November 2021; Greater Shepparton City Council submission, 26 November 2021; Gunnible Pastoral Company submission, 22 November 2021; Industrial Committee of FGV (Fruit Growers Victoria) and CDFGA (Cobram and District Fruit Growers Association) submission, 26 November 2021.
47 Citrus Australia submission, 26 November 2021 at 3.
48 Growcom submission, 26 November 2021 at p.7; Fruit Growers Victoria submission, 26 November 2021 at 1.
49 Sunny Ridge submission, 26 November 2021.
50 Growcom submission, 26 November 2021 at p.7.
51 AWU submission in reply, 10 December 2021 at 6.
52 AWU submission in reply, 10 December 2021 at 9 and 10.
53 AWU submission in reply, 10 December 2021 at 17 and 18.
54 AWU submission in reply, 10 December 2021 at 19.
55 AWU submission in reply, 10 December 2021 at 20.
56 AWU submission in reply, 10 December 2021 at 30.
57 AWU submission in reply, 10 December 2021 at 31.
58 AWU submission in reply, 10 December 2021 at 32.
59 AWU submission in reply, 10 December 2021 at 33.
60 AWU submission in reply, 10 December 2021 at 36.
61 AWU submission in reply, 10 December 2021 at 38.
62 AWU submission in reply, 10 December 2021 at 39.
63 AWU submission in reply, 10 December 2021 at 41.
64 AWU submission in reply, 10 December 2021 at 43.
65 AWU submission in reply, 10 December 2021 at 45.
66 AWU submission in reply, 10 December 2021 at 48.
67 AWU submission in reply, 10 December 2021 at 49.
68 AWU submission in reply, 10 December 2021 at 50.
69 FGT submission in reply, 10 December 2021, at 8.
70 NSW Farmers (Industrial) Association submission in reply, 10 December 2021.
71 NSW Farmers (Industrial) Association submission in reply, 10 December 2021, at 3.
72 [2021] FWCFB 5552 at [438].
73 NSW Farmers (Industrial) Association submission in reply, 10 December 2021, at 6-7.
74 NSW Farmers (Industrial) Association submission in reply, 10 December 2021, at 8.
75 NSW Farmers (Industrial) Association submission in reply, 10 December 2021, at 11.
76 UWU submission in reply, 10 December 2021 at 5.
77 UWU submission in reply, 10 December 2021 at 6.
78 UWU submission in reply, 10 December 2021 at 8.
79 UWU submission in reply, 10 December 2021 at 8.
80 UWU submission in reply, 10 December 2021 at 9.
81 88 Days and Counting, submission in reply, 9 December 2021.
82 88 Days and Counting, submission in reply, 9 December 2021 at p.1.
83 88 Days and Counting, submission in reply, 9 December 2021 at p.4.
84 88 Days and Counting, submission in reply, 9 December 2021 at p.5.
85 UWU submission, 26 November 2021 at 27; AWU submission, 26 November 2021 at 13.
86 UWU submission, 26 November 2021 at 23.
87 UWU submission, 26 November 2021 at 26.
88 [2017] FWCFB 3001 at [75].
89 AWU submission, 26 November 2021 at 15.
90 AWU submission, 26 November 2021 at 18.
91 AWU submission, 26 November 2021 at 19.
92 AWU submission, 26 November 2021 at 24.
93 AWU submission, 26 November 2021 at 25.
94 FGT submission, 26 November 2021 at 42-47; AFPA submission, 26 November 2021 at 32-37.
95 AFPA submission, 26 November 2021 at 32-36.
96 FGT submission, 26 November 2021 at 42.
97 NFF submission, 26 November 2021 at 31.
98 NSW Farmers (Industrial) Association submission, 26 November 2021, at 17-23.
99 Ai Group submission in reply, 10 December 2021 at 5.
100 Ai Group submission in reply, 10 December 2021 at 19.
101 Ai Group submission in reply, 10 December 2021 at 21.
102 AWU submission in reply, 10 December 2021 at 52.
103 AWU submission in reply, 10 December 2021 at 53.
104 FGT submission in reply, 10 December 2021, at 31.
105 FGT submission in reply, 10 December 2021, at 37.
106 National Farmers’ Federation submission in reply, 10 December 2021, at 7.
107 National Farmers’ Federation submission in reply, 10 December 2021, at 10-12.
108 National Farmers’ Federation submission in reply, 10 December 2021, at 14.
109 National Farmers’ Federation submission in reply, 10 December 2021, at 15.
110 NSW Farmers (Industrial) Association submission in reply, 10 December 2021, at 12-13.
111 UWU submission in reply, 10 December 2021 at 11.
112 88 Days and Counting, submission in reply, 9 December 2021 at p.6.
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