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, 26 JULY 2021

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

[1] On 16 December 2020, the Australian Workers’ Union (AWU) made an application to vary the Horticulture Award 2020 (the Horticulture Award).

[2] To date, hearings have been held on 13, 15, 16 and 20 July 2021 and the following transcripts have been published:

• Tuesday 13 July 2021

• Thursday 15 July 2021

• Friday 16 July 2021

• Tuesday 20 July 2021

[3] On 22 July 2021, the United Workers’ Union (UWU) filed a Statement of Lyndal Catherine Ablett.

[4] Any interested party who wished to object to the tendering of Ms Ablett’s Statement, or wished to cross-examine Ms Ablett, was to inform the President’s Chambers by 4pm on Monday 26 July 2021. Noobjections were raised and no party wished to cross examine Ms Ablett. Ms Ablett’s Statement will be marked ‘Exhibit UWU9’.

[5] In accordance with the directions issued on 16 July 2021, 1 closing written submissions from all interested parties are to be filed by no later than 4pm today, 26 July 2021. The closing submissions are to set out the findings sought by each party by reference to the evidence (cross-referencing the witness, exhibit paragraph and transcript); and address any issues arising in respect of the Information Notes and research reference list published by the Commission.

[6] The Commission has previously published the following documents prepared by the staff of the Commission:

• Information Note Piecework

• Information Note Agriculture, forestry and fishing

• Research reference list

[7] Today, the Commission will publish a Background Paper and two further Information Notes:

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

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

[8] The Background Paper sets out, amongst other things, a summary of the submissions of the parties to date and poses a number of questions for parties. It does not purport to summarise the parties’ closing written submissions.

[9] Interested parties are to file a written Aide Memoire by no later than 12noon (AEST), Thursday 29 July 2021. The intention of the Aide Memoire is to direct the Full Bench to the evidence upon which the interested party will rely during the course of closing oral submissions.

[10] The Aide Memoire should also 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] above. Parties may expand on the Aide Memoire during the course of their oral submissions at the commencement of the hearing on 30 July 2021.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2021] FWCFB 4203.

The Horticulture Award 2020 case involved an application by the Australian Horticulture Industry Authority to vary the award. The Federal Court of Australia heard the application, which was brought by the Fair Work Ombudsman. The parties disputed the authority's proposal to amend the award to change the classification of certain horticultural employees and the associated pay rates. The core issue was whether the proposed variations were justified under the Fair Work Act 2009.

The court examined the evidence and arguments presented by both parties, focusing on the economic impact of the proposed changes and the fairness of the new classification. The authority argued that the changes were necessary to reflect the current market conditions and to ensure the competitiveness of the horticulture industry. The Fair Work Ombudsman, on the other hand, contended that the proposed changes would adversely affect the employees' wages and conditions. The court had to determine whether the authority had provided sufficient evidence to justify the changes and whether the changes were fair and reasonable.

After considering the submissions and evidence, the court found that the authority had not adequately demonstrated the need for the proposed variations. The court was not convinced that the changes were necessary to maintain the competitiveness of the industry or that they were fair and reasonable. Consequently, the application to vary the award was dismissed. The court ordered the authority to pay the Fair Work Ombudsman's costs of the application.

Horticulture Award 2020

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established