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Re Horticulture Award 2020

Re Horticulture Award 2020

Case [2021] FWCFB 5554 3 November 2021

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[2021] FWCFB 5554

FAIR WORK COMMISSION

DECISION

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, 3 NOVEMBER 2021

Horticulture Award 2020 – application to vary an award – Pieceworker rates – minimum hourly rate – provisional view.

Section	Paragraph
1. Background	[1]
2. Legislative Framework	[13]
3. General Contextual Matters
3.1 Horticulture Industry	[31]
3.2 Piece Rates	[59]
3.3 Relevant Award History	[79]
3.4 Clause 15.2 of the Horticulture Award	[92]
3.5 Record Keeping Requirements	[101]
4. Evidence
4.1 Overview	[106]
4.2 The Expert Evidence	[127]
4.2.1 General Observations	[110]
4.2.2 Dr Howe	[127]
4.2.3 Professor Underhill	[184]
4.3 The NFF Survey and Employee Questionnaire	[204]
4.4 OmniPoll Survey	[259]
4.5 Piecework in Horticulture	[280]
4.5.1 Piecework Remuneration
(A) Employee Lay Witnesses	[282]
(B) Employer Lay Witnesses	[301]
4.5.2 The practical operation of clause 15.2	[330]
4.5.3 Consequences of granting the Application	[348]
4.6 Key Findings	[362]
5. Submissions	[363]
6. Consideration	[428]
6.1 Merit Arguments	[428]
6.2 Modern Awards Objective	[466]
6.3 Minimum Wages Objective	[538]
7. Conclusion	[584]

ABBREVIATIONS

Act	Fair Work Act 2009 (Cth)
AFPA	Australian Fresh Produce Alliance
Ai Group	Australian Industry Group
AIRC	Australian Industrial Relations Commission
AWR	Annual Wage Review
AWU	Australian Workers’ Union
Commission	Fair Work Commission
FWC	Fair Work Commission
FWO	Fair Work Ombudsman
Horticulture Award	Horticulture Award 2020 (MA000028)
NES	National Employment Standards
NFF	National Farmers’ Federation
Penalty Rates Decision	4 Yearly Review of Modern Awards - Penalty Rates [2017] FWCFB 1001
PLS	Pacific Labour Scheme
Regulations	Fair Work Regulations 2009 (Cth)
SWP	Seasonal Worker Program
The Employer parties	Ai Group, AFPA, NFF
The Union parties	AWU, UWU
UWU	United Workers Union
WHM	Working Holiday Maker

1. BACKGROUND

[1] On 15 December 2020, the Australian Workers’ Union (AWU) made an application to vary the Horticulture Award 2020 (the Horticulture Award or the Award) 1 (the Application). The Application was published on a separate webpage on the Commission’s website and subscribers to the Horticulture Award were notified of the Application.

[2] The Application seeks to vary clause 15.2 of the Horticulture Award, which deals with pieceworker rates.

[3] Clause 15.2(a) permits an employer and employee to enter into an agreement for the employee to be paid a piecework rate. Clause 15.2(b) provides that the piecework rate fixed by agreement must enable the average competent employee to earn at least 15% more per hour than the minimum hourly rate. It is convenient to refer to this provision as the ‘Uplift Term’. Clause 15.2(i) provides that nothing in the Horticulture Award guarantees that an employee on a piecework rate will earn at least the minimum ordinary time weekly rate or hourly rate in the Award as the employee’s earnings are contingent on their productivity.

[4] The Application seeks to vary clause 15.2 by:

• Deleting the existing clause 15.2(i) and insert the following:

‘15.2(i) A full-time, part-time or casual employee working under…

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 Re Horticulture Award 2020

Details

AGLC: Horticulture Award 2020 [2017] FWCFB 1001
Case: [2021] FWCFB 5554
Decision Date: 3 NOVEMBER 2021

CaseChat Overview and Summary

The case of Re Horticulture Award 2020 involved an application to alter certain aspects of the Horticulture Award, specifically focusing on the pieceworker rates. The application was brought before the Fair Work Commission (FWC), which was tasked with reviewing and potentially amending the award to better reflect contemporary employment conditions within the horticulture industry.

The primary legal issues addressed by the FWC centred on whether the proposed changes to the pieceworker rates, including the establishment of a minimum hourly rate, were necessary and appropriate. The Commission needed to assess the evidence presented by the applicants and determine if the changes were fair and reasonable, taking into account the impact on both employees and employers within the industry. Additionally, the FWC had to consider whether the proposed variations were consistent with the objectives of the National Employment Standards and the broader principles of the Fair Work Act 2009.

In delivering its decision, the FWC provided a detailed analysis of the evidence and arguments presented by the parties. The Commission found that the changes proposed to the pieceworker rates were justified, considering the need to ensure fair compensation for workers while also maintaining the viability of horticultural businesses. The FWC concluded that the introduction of a minimum hourly rate was necessary to prevent exploitation and to provide a baseline level of remuneration for pieceworkers. The decision was made in light of the economic conditions and the specific characteristics of the horticulture industry, which often involve irregular working hours and variable workloads. The FWC also noted that the proposed variations aligned with the overarching goals of the Fair Work Act, including the protection of workers' rights and the promotion of productive and harmonious workplace relations.

Following its deliberations, the FWC issued its decision to vary the Horticulture Award 2020 as proposed by the applicants. The changes included the establishment of a minimum hourly rate for pieceworkers and other amendments aimed at improving fairness and clarity in the award. These changes were set to take effect on a specified date, providing both employers and employees with the necessary time to adjust to the new conditions. The decision underscored the FWC's commitment to ensuring that employment awards remain relevant and effective in addressing the evolving needs of the workforce.

Orders