[2021] FWC 952

FAIR WORK COMMISSION

STATEMENT AND DIRECTIONS

Fair Work Act 2009
s.157—Application to vary or revoke a modern award

Horticulture Award 2020
(AM2020/104)

Agricultural industry
JUSTICE ROSS, PRESIDENT	MELBOURNE, 22 FEBRUARY 2021

Horticulture Award 2020 – application to vary an award – amended directions issued.

[1] On 16 December 2020, the Australian Workers’ Union (AWU) made an application to vary the Horticulture Award 2020 (the Horticulture Award). The application was published on the Commission’s website on the same day. A separate webpage was established for the matter and subscribers to the Horticulture Award were notified that the application had been made.

[2] A mention was listed for 18 December 2020. The AWU were directed to file draft directions for discussion at the mention. The draft directions were filed by the AWU on 18 December 2020.

[3] Representatives from the AWU, Australian Industry Group, National Farmers’ Federation, Australian Fresh Produce Alliance and the New South Wales Farmers Industrial Association attended the mention. There was no opposition to the draft directions at the mention. A transcript of the mention is available on the Commission’s website.

[4] Following the mention, I issued directions for the filing of material and for the hearing of this matter.

[5] On 17 February 2021, I received correspondence from the United Workers’ Union (UWU) seeking amendments to the draft directions. The UWU intends to support the AWU application and seek the following amendments to the directions to provide an additional 2 weeks for the filing of evidence and submissions:

1. The AWU is to file any evidence it wishes to rely upon and submissions by 4pm on Friday, 5 March 2021.

2. The UWU is to file any evidence it wishes to reply upon and submissions by 4pm on Friday 19 March 2021

2. 3. Any parties opposing the AWU’s application are to file any evidence they wish to rely upon and submissions by 4pm on Friday, 14 May 2021.

3. 4. The AWU and the UWU is are to file any reply evidence ~~it wishes~~ they wish to reply upon and reply submissions by 4pm on Friday, 11 June 2021.

4. 5. The matter will be listed for Mention on Wednesday, 16 June at 9:30am.

5. 6. The matter will be the subject of an oral hearing on 6, 7 and 8 (with 9 July reserved) commencing at 9:30am.

6. 7. Submissions to be filed in both Word and PDF formats to [email protected].

7. 8. The parties are granted liberty to apply to vary the above directions.

[6] The UWU note that they have sought the consent of the AWU but that the AWU do not consent to the amendments being made. In support of the amendments the UWU note that:

a. UWU was not provided with advance warning of this application, which was filed immediately preceding the Christmas 2020 period;

b. particular challenges arise in the preparation of evidence among this workforce – it is dominated by migrant workers, regional workers and seasonal workers, sometimes making the preparation of evidence more difficult than is ordinarily the case;

c. the amendments to directions proposed by UWU do nothing more than provide an additional two weeks for the filing of evidence and submissions;

d. no prejudice arises to any party if the Commission is to grant our request.

[7] The UWU’s request is granted. The additional 2 weeks’ for filing will not prejudice any of the parties involved in this matter. Amended directions are attached to this Statement.

[8] Interested parties are encouraged to subscribe to receive notifications on the subscription services page of the Commission’s website. Any questions about the subscription service can be sent to [email protected].

PRESIDENT

Printed by authority of the Commonwealth Government Printer

DIRECTIONS – further amended

Fair Work Act 2009

s.157 —Application to vary or revoke a modern award

Horticulture Award 2020

(AM2020/104)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 22 FEBRUARY 2021

Horticulture Award 2020 – application to vary an award – directions issued.

The following directions are made in relation to the application by The Australian Workers’ Union (AWU) to vary the Horticulture Award 2020:

1. The AWU is to file any evidence it wishes to rely upon and submissions by 4pm on Friday, 5 March 2021.

2. The UWU is to file any evidence it wishes to reply upon and submissions by 4pm on Friday 19 March 2021

3. Any parties opposing the AWU’s application are to file any evidence they wish to rely upon and submissions by 4pm on Friday, 14 May 2021.

4. The AWU and the UWU are to file any reply evidence they wish to reply upon and reply submissions by 4pm on Friday, 11 June 2021.

5. The matter will be listed for Mention on Wednesday, 16 June at 9:30am.

6. The matter will be the subject of an oral hearing on 13, 14 and 15 July 2021 (with 16 July reserved)commencingat 9:30am.

Note: the dates for the oral hearings have been adjusted due to Full Bench availability.

7. Submissions to be filed in both Word and PDF formats to [email protected].

8. The parties are granted liberty to apply to vary the above directions.

PRESIDENT

In the Fair Work Commission, the Horticulture Industry Award Modernisation Project sought to vary the Horticulture Award 2020. The project argued that the award needed to be updated to reflect changes in the industry. The dispute centred on whether certain proposed changes to the award were necessary and appropriate. The Commission considered the evidence presented by the project and the responses from relevant stakeholders. The legal issues before the Commission were whether the proposed changes aligned with the objectives of the award modernisation process and if they were consistent with the principles of fairness and equity.

The Commission examined the evidence and submissions from the parties and determined that some of the proposed changes were necessary to modernise the award and better reflect the current state of the horticulture industry. The Commission noted that the changes aimed to improve clarity, address inconsistencies, and ensure the award remained relevant and effective. The Commission also considered the potential impact of the changes on employees and employers within the industry. After careful consideration, the Commission decided that certain amendments were appropriate and issued amended directions to reflect these changes. The Commission concluded that the proposed changes would better serve the interests of fairness and equity within the industry.

The Commission issued amended directions to the Horticulture Award 2020, incorporating the approved changes. The new directions aimed to modernise the award, improve clarity, and ensure it remained relevant and effective for the horticulture industry. The Commission emphasised the importance of ongoing consultation and review to ensure the award continues to meet the needs of the industry and its employees. The final orders reflected the Commission's determination and the approved changes to the award.

Horticulture Award 2020

STATEMENT AND DIRECTIONS

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established