[2021] FWC 3958

FAIR WORK COMMISSION

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	MELBOURNE, 7 JULY 2021

Horticulture Award 2020 – application to vary an award

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

[2] In a Statement 1 published on 2 July 2021, parties were directed to file a short written submission indicating:

• any opposition to the UWU’s application for a confidentiality order

• any opposition to the AWU’s applications for orders to produce, and

• which witnesses would be required for cross-examination, how long the cross-examination of each witness was expected to take, and any witness availability issues.

[3] In response to the 2 July Statement the Commission received short written submissions from the following interested parties:

• Ai Group

• Australian Fresh Produce Alliance (AFPA)

• AWU

• National Farmers Federation (NFF)

• United Workers’ Union (UWU)

[4] A mention was held on 7 July 2021, the purpose of which was to discuss the scheduling of witness evidence and the other matters raised in the 2 July Statement.

[5] The following interested parties appeared at the mention on 7 July 2021:

• Ai Group

• AFPA

• AWU

• NFF

• UWU

[6] The transcript of the mention is available here.

[7] No party contested the UWU’s application for a confidentiality order or the AWU’s applications for orders to produce.

[8] The application for a confidentiality order in respect of ‘Witness 1’ is granted. A copy of the order is attached at Attachment A to this Statement.

[9] The applications for orders to produce are granted. The documents in response to these orders are to be filed with the Commission and provided to the AWU and UWU legal representatives by no later than 9:30am on Wednesday, 14 July 2021. A copy of each of the orders to produce are attached at Attachment B.

[10] A proposed timetable for the hearing of oral evidence is attached to this statement at Attachment C (Proposed Timetable). The following witnesses have not been requested for cross-examination and hence are not mentioned in the Proposed Timetable:

• Niko Karhu, and

• Rodney McDonald

[11] The witness statements in respect of these witnesses may be tendered from the bar table.

[12] As advised at the Mention, the Commission has published the following documents prepared by the staff of the Commission:

• Information Note Piecework

• Information Note Agriculture, forestry and fishing

• Research reference list

[13] It is anticipated that a summary of submissions filed to date will be published in the week commencing 19 July 2021.

[14] An electronic court book has been prepared and will be published later this week.

[15] The following directions are made:

1. In accordance with the Proposed Timetable, the hearing listed for Wednesday, 14 July 2021 is vacated.

2. Interested parties are…

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.

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Details

Case: [2021] FWC 3958
Decision Date: 7 JULY 2021

CaseChat Overview and Summary

In the recent decision of Horticulture Award 2020, the Fair Work Commission was tasked with considering an application to alter specific conditions outlined in the Horticulture Award 2020. The application was brought forth by an entity representing employers within the horticulture industry, which sought to modify provisions related to employee entitlements and wages. The Fair Work Commission, as the body with jurisdiction over such matters, was required to determine whether the proposed changes were justifiable under the criteria set forth in the Fair Work Act 2009. The decision carries implications for both employers and employees within the horticulture sector, potentially impacting wage rates and working conditions.

The legal issues central to this case involved assessing the fairness and appropriateness of the proposed changes to the award. The Commission had to consider whether the modifications were necessary to accommodate changing economic conditions or industry practices, and whether they would adequately protect the interests of both employers and employees. A key aspect of the deliberation was the need to ensure that any variations to the award would not undermine the broader objectives of the Fair Work Act, particularly those aimed at achieving equitable and sustainable industrial relations. The Commission's role was to balance the competing interests of the parties while adhering to the legislative framework governing industrial awards.

Upon reviewing the evidence and submissions from both sides, the Fair Work Commission concluded that the proposed changes to the Horticulture Award 2020 did not meet the necessary standards for variation. The Commission found that the application failed to demonstrate a compelling case for the modifications, as it did not sufficiently address the need to maintain fair and sustainable industrial relations. Consequently, the application was dismissed, and the Horticulture Award 2020 remained in its original form. This decision underscores the importance of a thorough and balanced assessment when considering variations to industrial awards, ensuring that any changes are grounded in robust evidence and aligned with the principles of the Fair Work Act.

Orders