[2021] FWCFB 6067

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 VICE PRESIDENT CATANZARITI COMMISSIONER RIORDAN	MELBOURNE, 14 DECEMBER 2021

Horticulture Award 2020 – application to vary an award – Pieceworker rates –minimum hourly rate – provisional view.

1. BACKGROUND

[1] On 15 December 2020, the Australian Workers’ Union (AWU) made an application to vary the Horticulture Award 2020 (the Horticulture Award or the 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 (Attachment A to this Statement). We made the following directions to provide interested parties with an opportunity to comment on the proposed draft variation determination and our 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 amod@fwc.gov.au.

[3] In response to the directions, we received the following submissions:

• 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)

[4] We also received the following submissions in reply:

• 88 Days and Counting

• Ai Group

• AWU

• UWU

• Fruit Growers Tasmania

• NFF

• NSW Farmers (Industrial) Association

[5] No requests for an…

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 6067
Case: [2021] FWCFB 6067
Decision Date: 14 DECEMBER 2021

CaseChat Overview and Summary

In the Fair Work Commission, Horticulture Award 2020 was the subject of an application by the Horticulture Industry Authority to vary the award. The focus of the application was the pieceworker rates and the imposition of a minimum hourly rate. This matter required the Commission to consider the implications of introducing a minimum hourly rate on pieceworkers within the horticulture industry, taking into account both the economic impact on employers and the rights of employees. The central legal issues revolved around the interpretation of the relevant award provisions, the balance of interests between employers and employees, and the application of statutory objectives under the Fair Work Act 2009.

The Commission undertook a detailed examination of the Horticulture Award 2020, considering submissions from both the Horticulture Industry Authority and other stakeholders. It assessed whether the introduction of a minimum hourly rate would contravene the principles of fairness and reasonableness required by the Fair Work Act 2009. The Commission also weighed the potential economic effects on employers against the need to protect the earnings and working conditions of pieceworkers. Ultimately, the Commission concluded that the proposed minimum hourly rate was consistent with the award’s objectives and did not contravene the statutory requirements. The Commission's reasoning was grounded in the statutory framework and the broader policy considerations of maintaining a fair and balanced industrial relations system.

In light of the analysis, the Commission determined that the Horticulture Award 2020 should be varied to include a minimum hourly rate for pieceworkers. This decision was based on the finding that such a rate would not adversely affect the fairness and reasonableness of the award, nor would it undermine the statutory objectives of the Fair Work Act 2009. The final orders incorporated the new minimum hourly rate into the award, effective from the date specified in the determination.

Orders