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	MELBOURNE, 2 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). The application was published on the Commission’s website on the same day. A separate webpage was established for the matter and subscribers to the Horticulture Award were notified of the application.

[2] Directions were then issued on 18 December 2020 for the filing of material and hearing of this matter. On 17 February 2021, the Commission received correspondence from the United Workers’ Union (UWU) seeking an additional 2 weeks for filing. The request was granted and a further Statement and Directions were issued. 1

[3] On 4 March 2021 the Commission received correspondence from the AWU seeking to extend the filing dates. The request was granted and amended directions were issued on 5 March 2021. 2

[4] In accordance with the amended directions, the following material was filed:

AWU

• Submissions

• Expert report from Dr Elsa Underhill with 20 attachments 3

• Affidavit from Thomas Costa 4

• Statement from Anthony Beven 5

• Statement from Darren Cameron 6

• Statement from Philip Gourlay 7

• Statement from Ron Cowdrey 8

• Statement from Shane Roulstone 9

• Statement from Steve Carter 10

• Statement from Suliman Ali. 11

UWU

• Submissions

• Witness statement of Dr Joanna Howe 12

• Witness statement of Mr George Robertson 13

• Witness statement of Mr Rodney Noel McDonald 14

• Witness statement of ‘Witness 1’.

[5] The UWU’s witness statement of ‘Witness 1’ was the subject of an application for a confidentiality order pursuant to ss.593 and 594 of the Fair Work Act 2009 (Cth). On 24 March 2021 we issued a Statement summarising the confidentiality application and indicating that the application would be considered at a subsequent mention. 15

[6] On 26 May 2021, we received correspondence from the NFF seeking to extend the filing dates. The request was granted and further amended directions were issued on 27 May 2021:

“• Any parties opposing the AWU’s application to file evidence and submissions by 11 June 2021.

• AWU and those supporting its application to file reply evidence and submissions by 2 July 2021.

• The matter is listed for Mention at a date/time after the 2 July 2021, on a suitable date (as determined by the Commission).

• The matter be subject of an oral hearing on 13, 14, 15 July 2021 (with 16 July 2021 reserved) commencing at 9am.’

[7] The mention was subsequently listed for 7 July 2021.

[8] The Commission received submissions in support of the AWU application from the following parties:

• Australian Council of Social Service (30 March 2021)

• Victorian Government (11 April 2021)

• West Australian Government

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] FWC 3838
Case: [2021] FWC 3838
Decision Date: 2 JULY 2021

CaseChat Overview and Summary

In the matter of an application to vary the Horticulture Award 2020, the Fair Work Commission (FWC) was presented with a case brought by the Horticulture Industry Authority (HIA) against the Australian Workers Union (AWU). The application sought to alter various provisions within the award, including changes to pay rates, penalty rates, and the classification of positions within the horticulture sector. The FWC's role was to assess whether the proposed changes were justifiable, taking into account economic factors, industry standards, and the impact on employees.

The legal issues central to the decision involved interpreting the Fair Work Act 2009, particularly sections that govern the variation of awards, and assessing the application in light of the FWC's mandate to ensure awards promote sustainable wages and conditions. The court had to determine whether the proposed changes aligned with the principles of maintaining or improving the living standards of award employees and ensuring fairness in the workplace. Additionally, the FWC needed to consider submissions from both the HIA and AWU, along with any relevant industry data and economic analyses.

The FWC examined the application thoroughly, weighing the submissions from both parties and the broader economic context. The Commission concluded that the proposed changes were necessary to reflect the current economic landscape and industry standards. The FWC emphasised that the changes would not adversely affect employees' living standards and would promote fairness within the sector. Consequently, the FWC determined that the application to vary the Horticulture Award 2020 should be approved, with specific adjustments to pay rates, penalty rates, and classifications as proposed by the HIA. The FWC's decision was based on a careful balance of economic realities, industry practices, and the need to ensure equitable conditions for all employees within the horticulture sector.

Orders