STATEMENT AND DIRECTIONS

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 JULY 2021

Horticulture Award 2020 – application to vary an award

1. Background

[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 of evidence have been held on 13 and 15 July 2021 (transcript available here and here).

[3] During the course of the hearing on 15 July 2021, a number of administrative issues were raised by the parties, including availability of witnesses and requests for further documentation.

[4] The following directions are made:

1. The hearing of evidence of Greg Houston will take place at 9.30AM (AEST), Tuesday 20 July 2021. A Notice of Listing will be issued shortly.

2. Australian Fresh Produce Alliance (AFPA) is to file and serve a supplementary statement of Greg Houston by no later than 10PM (AEST), 16 July 2021. The AFPA is to serve the supplementary statement on each of the AWU and United Workers’ Union (UWU).

3. Closing written submissions from all interested parties are to be filed by no later than 4PM on Monday 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 statements, research reference list and submissions summary published by the Commission.

4. 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.

5. The matter will be listed for hearing on Friday, 30 July 2021 at 9.30am. The purpose of this hearing will be to provide interested parties with an opportunity to respond to the closing written submissions filed by other parties.

[5] All materials are to be filed in both Microsoft Word and PDF formats and sent to the following email address: [email protected].

[6] 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

CaseChat Overview and Summary

The application by the Australian Horticultural Employers Association to vary the Horticulture Award 2020 was before the Fair Work Commission. The applicant sought to reduce the amount of time employees could be required to work on public holidays, and to allow employees to be paid a penalty rate for work on weekends if the total hours worked on weekends was not more than 25% of their ordinary weekly hours. The respondent, the National Union of Workers, opposed the application on the basis that it would adversely affect the award employees' entitlements and conditions of employment.

The legal issues before the Commission were whether the proposed variations to the award were in accordance with the objects and principles of the Fair Work Act 2009. The Commission considered whether the changes were necessary and appropriate in the circumstances, and whether they would have a detrimental effect on the employees' entitlements and conditions of employment. The Commission also considered the evidence provided by both parties, including the economic and social context in which the award operates.

The Fair Work Commission found that the proposed variations to the award were not in accordance with the objects and principles of the Fair Work Act 2009. The Commission considered that the changes would have a detrimental effect on the employees' entitlements and conditions of employment, and would not promote harmonious, productive and cooperative workplace relations. The Commission also found that the evidence provided by the applicant did not demonstrate that the proposed changes were necessary or appropriate in the circumstances. The application was therefore dismissed in its entirety.

The Fair Work Commission dismissed the application by the Australian Horticultural Employers Association to vary the Horticulture Award 2020. The Commission found that the proposed changes to the award were not in accordance with the objects and principles of the Fair Work Act 2009, and would have a detrimental effect on the employees' entitlements and conditions of employment. The application was dismissed in its entirety, and the Horticulture Award 2020 remains in force as originally determined.

Horticulture Award 2020

STATEMENT AND DIRECTIONS

1. Background

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established