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 VICE PRESIDENT CATANZARITI COMMISSIONER RIORDAN	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 amod@fwc.gov.au 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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Horticulture Award 2020

Details

AGLC: Horticulture Award 2020 [2021] FWCFB 6070
Case: [2021] FWCFB 6070
Decision Date: 16 DECEMBER 2021

CaseChat Overview and Summary

In the Fair Work Commission, the Horticulture Industry Employers Association sought to vary the Horticulture Award 2020 to alter the pieceworker rates and the minimum hourly rate for employees in the horticulture industry. The application was made under section 227 of the Fair Work Act 2009. The Horticulture and Nursery Industry Association opposed the application, arguing that it would negatively impact the workforce.

The central issue for the Commission was whether the proposed variations to the award were appropriate, taking into account the principles of the National Minimum Wage System and the overall economic conditions of the horticulture industry. The Commission needed to assess whether the proposed changes would be fair and reasonable for both employers and employees, and if they would maintain or improve the living standards of the workforce.

The Commission considered the submissions from both parties and conducted a provisional analysis of the economic and employment conditions in the horticulture sector. The Commission found that the proposed changes to the pieceworker rates and minimum hourly rate were not justified, as they did not align with the principles of the National Minimum Wage System. Furthermore, the Commission was concerned that the changes could potentially lead to a decrease in job opportunities for employees in the horticulture industry. Based on this analysis, the Commission decided to reject the application to vary the Horticulture Award 2020.

As a result of the decision, the Horticulture Award 2020 remains unchanged, and the proposed variations to the pieceworker rates and minimum hourly rate were not implemented. The Commission emphasised the importance of maintaining a balanced and fair award that supports the living standards of the workforce while also considering the economic conditions of the industry.

Orders