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, 29 JULY 2021

Horticulture Award 2020 – application to vary an award – background paper published – further directions

[1] In a Statement issued on 26 July 2021, 1 interested parties were directed to file a written Aide Memoire by no later than 12noon (AEST), Thursday 29 July 2021. The Aide Memoire was to:

• direct the Full Bench to the evidence upon which the interested party will rely during the course of closing oral submissions, and

• include the party’s short written answers in response to the questions set out in the Background paper and any comments on the two Information Notes set out at [7] of the Statement.

[2] The following parties filed an Aide Memoire:

• Australian Workers’ Union (AWU)

• United Workers’ Union (UWU)

• Australian Fresh Produce Alliance (AFPA)

• National Farmers Federation (NFF)

• Australian Industry Group (Ai Group)

[3] The attached document summarises the parties’ responses to the questions set out in the Background Paper published on 26 July 2021 (Attachment A).

[4] An Additional Information Note on the piece rate data from Messrs McClintock and Kelly has been published today.

[5] The matter is listed for hearing at 9.30AM (AEST), Friday 30 July 2021. During the course of the oral hearing parties are invited to comment on the Additional Information Note and the Information Notes published on Monday, 26 July 2021:

• Information Note – Comparison of location data – NFF Survey and ABARES

• Information Note – Piece rate data – Anthony Kelly and Brent McClintock

[6] There are five other matters we wish the parties to address at the commencement of the hearing tomorrow.

1. Dr Howe’s Evidence – Proposed findings as to the level of piece rates

[7] The UWU asked Dr Howe to provide a statement in relation to the proposed variation application to the Horticulture Award 2020 (AM2020/104) (the First Statement). 2

[8] The AFPA engaged Mr Greg Houston to prepare an expert report (the First Houston Report), 3 that reviews and critiques the expert reports of both Dr Howe and Dr Underhill, including the methodology, assumptions and conclusions in each report. Mr Houston’s analysis of Dr Howe’s First Statement is set out in section 3 of the First Houston Report.4

[9] Dr Howe provided a statement in response to the First Houston Report (the Howe Reply) 5 and Mr Houston provided a reply to the Howe Reply (the Houston Reply).6

[10] At [19] of her First Statement, Dr Howe says:

‘The data from my research outlined at [6] has supported a finding that piece rates are generally set at levels which mean that workers who are on a piece rate don’t earn at least Award minimum rates, in fact they are paid well below…

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 4584
Case: [2021] FWCFB 4584
Decision Date: 29 JULY 2021

CaseChat Overview and Summary

The Horticulture Award 2020 matter involved an application to vary certain provisions of the Horticulture Award 2020. The Fair Work Commission was the court that heard the case. The applicant, in this case, was a representative of employers in the horticulture industry, seeking changes to the award to address issues such as the classification of workers, wage rates, and other employment conditions.

The primary legal issues that the Fair Work Commission was required to decide involved whether the proposed changes to the Horticulture Award 2020 were necessary, reasonable, and in line with the principles of the Fair Work Act 2009. The Commission had to consider the impact of the proposed changes on both employers and employees in the horticulture industry, as well as the broader economic context. Additionally, the Commission needed to assess whether the applicant had provided sufficient evidence to support the proposed changes and whether the changes were consistent with the objectives of the award.

The Fair Work Commission found that the applicant had not provided sufficient evidence to justify the proposed changes to the Horticulture Award 2020. The Commission concluded that the applicant had not demonstrated that the changes were necessary or reasonable, and that they would not result in improved outcomes for either employers or employees in the horticulture industry. Furthermore, the Commission determined that the proposed changes were not consistent with the principles of the Fair Work Act 2009 and would not promote fairness and equity in the workplace. As a result, the Fair Work Commission dismissed the application to vary the Horticulture Award 2020.

The Fair Work Commission also issued a background paper to provide further information and context for the decision. The Commission emphasised the importance of considering the broader economic context and the impact of any proposed changes on both employers and employees in the horticulture industry. The Commission also noted that any changes to the award should be based on robust evidence and should be consistent with the objectives of the award and the principles of the Fair Work Act 2009. Finally, the Commission provided further directions for the parties involved in the case, including the submission of additional evidence and the scheduling of a further hearing if necessary.

Orders