[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 a piecework agreement must be paid for each hour of work performed at least the minimum rate payable for the employee’s classification and type of employment under this award. The minimum rate payable includes the casual loading prescribed in clause 11.3(a)(ii) for a casual employee.’

• Inserting the following as a new clause 15.2(k):

‘15.2(k) The employer must keep a record of all hours worked by a pieceworker as a time and wages record.’

[5] The effect of the proposed variation is to:

• Delete the current clause 15.2(i) and replace it with a new provision providing a floor for the earnings for pieceworkers such that an employee working under a piecework agreement must be paid for each hour of work at least the minimum rate payable for the employee’s classification and type of the employment.

• Insert a new clause 15.2(k) to require an employer to keep a record of all hours worked by a pieceworker to ensure that the requirement to pay a pieceworker at least the minimum hourly rate is capable of being monitored and enforced.

[6] The following parties filed submissions during the proceeding:

Union Parties

• AWU (19 March 2021)

• AWU in Reply (2 July 2021)

• AWU Closing Submission (26 July 2021)

• AWU Aide Memoire (29 July 2021)

• UWU (19 March 2021)

• UWU in Reply (2 July 2021)

• UWU Closing Submission (26 July 2021)

• UWU Aide Memoire (29 July 2021)

State Governments

• Queensland Government (27 May 2021)

• Victorian Government (11 April 2021)

• Western Australian Government (25 May 2021)

Other organisations

• Australian Council of Social Service (30 March 2021)

• Uniting Church in Australia (10 June 2021)

• 88 Days and Counting (11 June 2021)

• 88 Days and Counting Closing Submission (26 July 2021)

Employer Associations

• Australian Fresh Produce Alliance (AFPA) (11 June 2021)

• AFPA Closing Submission (26 July 2021)

• AFPA Aide Memoire (29 July 2021)

• AFPA Response to Questions in Statement [2021] FWCFB 4584 (30 July 2021)

• National Farmers’ Federation (NFF) (11 June 2021)

• NFF Closing Submission (26 July 2021)

• NFF Aide Memoire (29 July 2021)

• NFF Submission on Evidentiary Weight (29 July 2021)

• Australian Industry Group (Ai Group) (2 June 2021)

• Ai Group Aide Memoire (29 July 2021)

• Fruit Growers Tasmania (28 May 2021)

Individual Businesses

• Payne’s Farm Contracting Pty Ltd (21 May 2021)

• Lucaston Park Orchards (10 June 2021)

[7] A summary of the submissions 2 is set out in the Background Paper published on 26 July 2021. We have taken all of the submissions into account, but, save for our consideration of the principal arguments advanced by the parties set out below, we do not restate the submissions in our decision.

[8] The Commission published several Information Notes and a Research Reference List during the course of the proceedings:

• Information Note – Piecework

• Information Note – Agriculture, forestry and fishing

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

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

• Research reference list

[9] We refer to some of this material later.

[10] The list of the exhibits in this matter is attached at Attachment A.

[11] The hearings of evidence took place on 13, 15, 16, 20 and 30 July 2021. Transcripts of proceedings are available here:

• Tuesday, 13 July 2021

• Thursday, 15 July 2021

• Friday, 16 July 2021

• Tuesday, 20 July 2021

• Friday, 30 July 2021

[12] We turn first to the legislative framework before dealing with some general contextual matters.

2. THE LEGISLATIVE FRAMEWORK

[13] The following summary of the legislative framework relevant to our consideration of the Application is largely uncontentious; the only contentious issue concerns whether the Application is to be characterised as seeking to vary modern award minimum wages. We deal with that matter at the end of this section. 3

[14] Variations to modern awards must be justified on their merits. The extent of the merit argument required will depend on the circumstances. Significant changes where merit is reasonably contestable should be supported by an analysis of the relevant legislative provisions and, where feasible, probative evidence. 4

[15] Under s.157(1) of the Fair Work Act 2009 (Cth) (the Act), the Commission may only make the variation sought by the AWU if satisfied that the variation is ‘necessary to achieve the modern awards objective’. The ‘modern awards objective’ is defined in s.134(1) as “provid[ing] a fair and relevant minimum safety net of terms and conditions”, taking into account the matters at s.134(1)(a) to (h) (the s.134 considerations).

[16] Section 138 of the Act emphasises the importance of the modern awards objective:

‘A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.’

[17] There is a distinction between what is ‘necessary’ and what is merely ‘desirable’. Necessary means that which ‘must be done’; ‘that which is desirable does not carry the same imperative for action.’ 5

[18] Reasonable minds may differ as to whether a proposed variation is necessary (within the meaning of s.138), as opposed to merely desirable. 6 What is ‘necessary’ to achieve the modern awards objective in a particular case is a value judgment, taking into account the s.134 considerations to the extent that they are relevant having regard to the context, including the circumstances of the particular modern award, the terms of any proposed variation and the submissions and evidence.7

[19] Further, the matters which may be taken into account are not confined to the considerations in s.134. As the Full Court observed in Shop, Distributive and Allied Employees Association v The Australian Industry Group: 8

‘What must be recognised, however, is that the duty of ensuring that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions itself involves an evaluative exercise. While the considerations in s 134(a)-(h) inform the evaluation of what might constitute a “fair and relevant minimum safety net of terms and conditions”, they do not necessarily exhaust the matters which the FWC might properly consider to be relevant to that standard, of a fair and relevant minimum safety net of terms and conditions, in the particular circumstances of a review. The range of such matters “must be determined by implication from the subject matter, scope and purpose of the” Fair Work Act.’ 9

[20] In 4 Yearly Review of Modern Awards – Penalty Rates 10(Penalty Rates Decision) the Full Bench summarised the general propositions applying to the Commission’s task in the four-yearly review of modern awards, as follows:

‘1. The Commission’s task in the Review is to determine whether a particular modern award achieves the modern awards objective. If a modern award is not achieving the modern awards objective then it is to be varied such that it only includes terms that are ‘necessary to achieve the modern awards objective’ (s.138). In such circumstances regard may be had to the terms of any proposed variation, but the focal point of the Commission’s consideration is upon the terms of the modern award, as varied.

2. Variations to modern awards must be justified on their merits. The extent of the merit argument required will depend on the circumstances. Some proposed changes are obvious as a matter of industrial merit and in such circumstances it is unnecessary to advance probative evidence in support of the proposed variation. Significant changes where merit is reasonably contestable should be supported by an analysis of the relevant legislative provisions and, where feasible, probative evidence.

3. In conducting the Review it is appropriate that the Commission take into account previous decisions relevant to any contested issue. For example, the Commission will proceed on the basis that prima facie the modern award being reviewed achieved the modern awards objective at the time it was made. The particular context in which those decisions were made will also need to be considered.

4. The particular context may be a cogent reason for not following a previous Full Bench decision, for example:

• the legislative context which pertained at that time may be materially different from the Fair Work Act 2009 (Cth);

• the extent to which the relevant issue was contested and, in particular, the extent of the evidence and submissions put in the previous proceeding will bear on the weight to be accorded to the previous decision; or

• the extent of the previous Full Bench’s consideration of the contested issue. The absence of detailed reasons in a previous decision may be a factor in considering the weight to be accorded to the decision.’ 11

[21] The above observations are apposite to the Commission’s consideration of the Application.

[22] Section 578 of the Act is also relevant, it provides:

‘In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; and

(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.’

[23] Additional considerations arise when the Commission is setting, varying or revoking modern award minimum wages. Section 157(2) of the Act provides that the Commission may make a determination varying modern award minimum wages if satisfied that the variation is justified by work value reasons and making the determination outside of the system of annual wage reviews is necessary to achieve the modern awards objective. If the Commission is setting, varying or revoking modern award minimum wages, the minimum wages objective set out in s.284 of the Act also applies.

[24] The meaning of ‘modern award minimum wages’ is set out in s.284(3):

‘Meaning of modern award minimum wages

(3) Modern award minimum wages are the rates of minimum wages in modern awards, including:

(a) wage rates for junior employees, employees to whom training arrangements apply and employees with a disability; and

(b) casual loadings; and

[25] Section 284(4) deals with the meaning of setting and varying modern award minimum wages:

‘Meaning of setting and varying modern award minimum wages

(4) Setting modern award minimum wages is the initial setting of one or more new modern award minimum wages in a modern award, either in the award as originally made or by a later variation of the award. Varying modern award minimum wages is varying the current rate of one or more modern award minimum wages.’

[26] Whether or not the Application seeks to set or vary modern award minimum wages is contested.

[27] The AWU, supported by the UWU, submits that s.157(2) and the minimum wages objective are not applicable because the Application does not seek to alter the rates of minimum wages prescribed in the Horticulture Award, nor does it seek to alter the level by reference to which any piecework rate is required to be set in clause 15.2(b).

[28] The AFPA and others submit that the proposed variation does seek to vary modern award minimum wages.

[29] We agree with the submissions of the AFPA; that at present the Horticulture Award does not prescribe a minimum wage for all pieceworkers. The Uplift Term only sets a minimum wage for the ‘average competent employee’. The Application proposes that a minimum be set for all pieceworkers; the fact that the Application does so by reference to the existing minimum wages in the Horticulture Award is not to the point. The Application plainly seeks to set the minimum wage applicable to a particular category of employees (pieceworkers). The Application enlivens ss.157(2) and 284. We consider these matters later in section [6.3].

[30] We now turn to consider some general contextual matters.

3. GENERAL CONTEXTUAL MATTERS

3.1 Horticulture Industry

[31] The Horticulture Award covers, in essence, the ‘the sowing, planting, raising, cultivation, harvesting, picking, washing, packing, storing, grading, forwarding or treating of horticultural crops in connection with a horticultural enterprise.’ 12 Horticultural crops are defined in clause 2 of the Award to include:

‘all vegetables, fruits, grains, seeds, hops, nuts, fungi, olives, flowers, or other specialised crops unless they are specifically named as a broadacre field crop in the Pastoral Award 2020.’

[32] The Horticulture Award does not cover the wine industry, silviculture and afforestation, sugar farming, cotton growing or harvesting and plant nurseries. 13

[33] In the horticulture industry, crop growth is seasonal and each crop has its own distinct picking season. 14 The crop yield is lower at the beginning of the season, then ramps up during the middle of the season and tapers off in the late portion of the picking season.15

[34] The window of time during which produce is at its optimal ripeness or size varies by crop, 16 and must be harvested during this window of optimum size or ripeness for the grower to be able to sell the produce as first-grade fresh produce. Over-ripe items can only be sold as lower-grade or outgrade produce (e.g. fruit for freezing, jamming or juicing). The price of this lower-grade or outgrade produce is much lower than first-grade produce.17

[35] Due to the seasonality and picking windows, the size of the workforce at a particular site can vary significantly throughout the season. The demand for picking labour increases as the picking season progresses, peaks and then tapers off reflecting changes in crop yield. 18

[36] Work across the horticulture industry is labour intensive and predominantly seasonal. 19

[37] The workforce size and composition varies substantially over the course of the year and also varies from region to region. 20

[38] Horticulture farms tend to use relatively large amounts of casual and contract labour at key times of the year and the incidence of short term (seasonal) and casual employment is high, about 30% of the industry is employed on a casual basis and 38–47% is employed on a contract basis. 21

[39] The Australian horticulture workforce is comprised of local workers and temporary migrant workers. Temporary migrant workers comprise of the following cohorts: 22

• working holiday makers (WHMs), being the holders of subclass 417 and 462 visas;

• temporary workers from the Pacific Islands (Pacific Islander Workers), working in Australia under the Seasonal Worker Program (SWP) and the Pacific Labour Scheme (PLS); 23

• international students; and

• undocumented migrants (being non-citizens without a valid visa, such as visa overstayers, and valid visa holders working in breach of visa conditions).

[40] The best estimate of the total horticulture workforce for 2019 is between 120,000 to 140,000. 24 These figures capture employees in the industry regardless of the duration of their employment and the number of persons employed at any one time varies significantly from month to month.25 Seasonal labour demand increases significantly during November to March, a period during which many horticulture crops are harvested.26

[41] Of the total horticulture workforce:

• about 30,000 to 40,000 (about 21–33%) are WHMs; 27

• about 12,200 (about 9–10%) are Pacific Islander Workers under the SWP; 28

• an unknown but substantial number are Pacific Islander Workers under the PLS; 29

• an unknown number are international students; 30

• an unknown number, estimated to be in the thousands, are undocumented migrants; 31 and

• about 47% are local workers. 32

[42] So, broadly speaking, temporary migrant workers constitute just over half of the total horticulture workforce. Temporary migrant workers constitute a greater proportion of the seasonal harvesting workforce. This is particularly relevant for present purposes because workers engaged during harvesting are more likely to be remunerated by pieceworker rates. The Labour use in Australian agriculture: Research Report 20.20 by the Department of Agriculture, Water and the Environment notes:

‘Workers from overseas were a significant source of seasonal labour on horticulture farms throughout 2018-19 (around 50,000 workers from May to January), and were particularly important in February (around 63,000 workers), March (59,000 workers) and April (56,000) workers. Employment of Australian seasonal workers (locals and those from other regions) on horticulture farms ranged from 27,000 workers in October 2018 to 56,000 workers in February 2019.’ 33

[43] Temporary migrant workers are generally more vulnerable to exploitation than local workers; but, as Campbell (2019) notes:

‘Because of the fundamental disparity of power between employers and employees, exacerbated by geographical isolation, the limited rights of casual status and the relative absence in horticulture of countervailing influences from trade unions and official enforcement bodies, all harvest workers can be seen as disempowered and dependent on their employer, at least to some extent.’ 34

[44] Similarly, Underhill and Rimmer (2015) note: 35

‘Our findings suggest that all Australian horticulture workers are vulnerable but there are differences in degree which are consistent with various dimensions of layering’.

[45] Campbell also observes that ‘it is possible to observe gradations of vulnerability’; 36 Underhill and Rimmer (2015) make a similar point.

[46] Undocumented workers are particularly vulnerable, as Campbell notes:

‘Undocumented workers are vulnerable to detention and deportation if discovered, and this in turn generates heightened dependence, especially if the employer threatens to report the worker to immigration authorities.’ 37

[47] Within the cohort of temporary migrant workers, WHMs are the second most vulnerable cohort (after undocumented migrants) due to the absence of regulation and the pressure to fulfil the requirement of working 88 days in designated sectors (most notably agriculture) to obtain their second-year visa. In contrast, Pacific Islander Workers are generally less vulnerable because the schemes under which they are brought into Australia are subject to more regulation. 38

[48] We accept that the characteristics of the horticulture workforce render it vulnerable to exploitation, emphasising the need for the Horticulture Award to be simple and easy to understand.

[49] There was some debate in the proceedings regarding the future composition of the horticulture workforce given the COVID-19 pandemic and a proposed seasonal agriculture visa. In respect of the proposed agriculture visa, the AFPA tendered a statement by Ms Elizabeth Tan 39 which attached the results of an online search for any relevant media releases, media interviews, media articles or Hansard regarding the conditions of the Federal Government’s proposed seasonal agriculture visa and whether it would mirror the existing seasonal worker program, and any relevant announcements made by the Federal Government in relation to the proposed visa.

[50] Attached to Ms Tan’s statement are a series of media releases, news articles and transcripts of media interviews with Mr David Littleproud, the Member for Agriculture and Northern Australia, and a Transcript from the Joint Standing Committee on Migration on 25 June 2021 and the Senate Select Committee on Temporary Migration on 30 June 2021. Additional material is attached to the statement of Ms Lyndal Ablett. 40

[51] The material tendered discloses considerable uncertainty as to both the final form of any agriculture visa and the timeframe to implement the proposal.

[52] The material attached to Ms Tan’s statement shows that in his evidence before the Joint Standing Committee on Migration on 25 June 2021, Mr Andrew Kefford, PSM, Deputy Secretary, Immigration and Settlement Services, Department of Home Affairs, said in respect of the proposed seasonal agriculture visa, that ‘the broad policy intention has been announced along with the need now for us to do the work that we're doing with our colleagues inside the government to do the detailed program design that sits around that.’ 41

[53] Later, on 30 June 2021 before the same Senate Select Committee, Mr Michael Willard, First Assistant Secretary, Immigration Programs, Department of Home Affairs said that ‘the government is working through the details of the ag visa’ and that ‘there are no further details to provide at this stage.’ 42 Mr Willard also said ‘we have some work to do in terms of design and implementation.’43

[54] It has been a long-standing practice of the Commission and its predecessors to determine matters before it on the basis of the existing legislative framework and not otherwise. In this context, we note that the Expert Panel constituted to determine the Annual Wage Review has, on a number of occasions, declined to take prospective legislative change into account. For example, in the 2013-14 Annual Wage Review decision, the Expert Panel said:

‘Implicit in the submissions of the Australian Government and ACCI is that the Panel should award a lower increase than it otherwise would on account of an asserted improvement in living standards consequent upon the abolition of the carbon price. In essence, the Panel is being invited to speculate on the outcome of an uncertain political process. We reject these submissions. The possibility of legislative change, in the event that the CTR Bill becomes law, is irrelevant to our consideration of this issue. It has been the longstanding practice of the Commission and its predecessors to determine the matters before it on basis of the existing legislative framework and not otherwise.’ 44

[55] The High Court took a similar approach in Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd, 45 in which Starke J said:

‘Courts of law ... can only act upon the law as it is, and have no right to, and cannot, speculate upon alterations to the law that may be made in the future.’ 46

[56] It is not in dispute that it is difficult to predict how long the pandemic-related travel restrictions will continue; and we make no finding to this effect. We also find that since the onset of the COVID-19 pandemic the numbers of WHMs have dropped sharply. 47

[57] The AFPA goes further and submits that:

‘To be clear, AFPA is not asking the Commission to find that the agri-visa will be introduced, let alone that it will have particular features. Rather, it is asking the Commission to find that “there is no reason to expect WHM numbers to return to pre-pandemic levels in the near future, or at all”. 48 The agri-visa proposal simply feeds into and amplifies the broader uncertainty about the composition of the horticulture workforce in the future.’49

[58] In our view, the finding proposed by the AFPA is purely speculative and we do not propose to take the ‘agri-visa proposal’ into account, for the reasons set out above.

3.2 Pieceworker Rates

[59] Time-based remuneration, under which employees are remunerated by reference to the number of hours worked and the time when work is performed is standard in modern awards. Some modern awards, including the Horticulture Award, provide that employees may be remunerated by reference to the work tasks they perform rather than the time spent working – such employees are commonly referred to as pieceworkers.

[60] The Commission published an Information Note on ‘Piecework’ on 7 July 2021.

[61] The AFPA addresses the history of piecework provisions in awards in Section D.1 of its submission, noting that piecework arrangements have a long history in Australia. 50

[62] The AFPA submits that the early decisions that declined to guarantee pieceworkers the minimum weekly rates prescribed for timeworkers justified that conclusion by, among other things: 51

• ‘the sources from which seasonal labour is recruited and … the fact that frequently previous experience is not possessed or required’, leading to ‘remarkable’ ‘variation in quantities picked by different pickers’ (citing AWU v Young and District Producers Co-Operative Society (1939) 41 CAR 285, 323 and 334); and

• the fact that guaranteeing weekly earnings for pieceworkers ‘would remove a most useful incentive to efficient work’ (citing Grazier’s Association of New South Wales v AWU (1927) 25 CAR 626, 644).

[63] The AFPA submits that over the century that followed, despite significant changes in the Australian industrial relations landscape, awards continued to provide for piecework with no guaranteed weekly or hourly earnings, as was the case with the Horticultural Industry (AWU) Award 2000, 52 on which the current Horticulture Award is largely based.53 The AFPA submits that the Award was in turn a successor of a long line of awards that have, since 1939, provided for piecework engagement with no weekly or hourly ‘floor’.

[64] The extent to which the AFPA’s submission accurately reflects the history of piecework provisions in awards is contested. 54 As far as the Commission is concerned, the AFPA’s summary of the award regulation of piecework only provides a partial picture. It fails to mention the importance industrial tribunals have attached to the adoption of protective measures to ensure that piecework does not ‘bring about excessive toil for a very moderate wage’.55

[65] The early arbitral history regarding piecework is summarised by Beeby J in Amalgamated Engineering Union v Metal Trades Employers Association, 56in which his Honour observed:

‘Industrial Courts and Board have consistently held that, so long as payment of the minimum wage fixed for each class of labour is ensured, employers and employees shall be free to bargain for any system of wage payment.’ 57 [Emphasis added]

[66] As the AFPA mentions, since 1939 fruit growing awards have permitted piecework, without prescribing a minimum wage floor. In 1939, O’Mara J determined a dispute between the AWU and about 4000 employers in New South Wales (NSW), Victoria and South Australia, concerning the wages and conditions of workers in the fruit-growing and packing industry. In AWU v Young and District Producers Co-operative Society, 58 his Honour removed the minimum time work rate guarantee which Higgins J had imposed in permitting piecework in 1920.59 But it is important to appreciate that the piecework clause determined by his Honour permitted ‘the employer and the Unionto fix piecework rates.’60 [Emphasis added]

[67] The reasons given by O’Mara J for not providing a minimum wage guarantee are as follows:

‘I do not propose to provide for a guaranteed wage in the case of piece-workers. I have had regard to the sources from which seasonal labour is recruited and to the fact that frequently previous experience is not possessed or required and I am not satisfied that a guaranteed wage is justified or that it would not lead to imposition in some cases. The rates will be arranged by the Union which is quite capable of protecting its members.’ 61 [Emphasis added]

[68] It is apparent that his Honour did not consider that it was necessary to retain the minimum wage guarantee in circumstances where pieceworker rates were set by agreement between the employer and the Union.

[69] The relevant award clause was in the following terms:

‘Piece-work rates for work other than that for which piece-work rates have been prescribed in this award may be fixed by an employer and the Union at such rates as will enable the average employee working the ordinary hours prescribed by this award to earn at least 10 per cent above the prescribed time rate. Such rates shall, when fixed, be paid in lieu of the said time rate.’

[70] An award clause in the same terms was maintained in a later, 1944, judgment of O’Mara J in The AWU v The Angaston Fruitgrowers’ Co-operative Society Ltd. 62 The 10% ‘uplift’ factor was increased to 12½% in 1956, while the balance of the award clause was maintained.63 A clause in these terms also formed part of the Fruit Growing Industry (Consolidated) Award 1976 made by Sharp J.64

[71] The impression given by the AFPA submission that the imposition of a minimum guarantee fell out of arbitral favour in the 1930s is inaccurate. The minimum wage guarantee has been retained as a protective mechanism in the piecework provisions in a number of modern awards.

[72] It is also convenient to deal here with the AFPA’s characterisation of the existing piecework provisions in the Horticulture Award, as follows:

‘The Horticulture Award allows employees to be engaged not only on the basis of hourly rates (timeworkers) but also as pieceworkers for whom the Award’s safety net is based on a minimum piecework rate rather than a minimum hourly rate. Clause 15.2(b) of the Award requires that the minimum piecework rate must be set such that an average competent pieceworker earns 15% more per hour than the minimum hourly rate prescribed for an equivalent timeworker (Uplift Term). The quid pro quo for giving average competent pieceworkers, as a minimum, an opportunity to earn a 15% uplift on the minimum earnings of timeworkers is that pieceworkers are not guaranteed a minimum hourly rate. The Award thus creates a performance-based safety net that contains an element of risk and reward. In other words, it strikes a risk-reward bargain for pieceworkers. The availability of this mode of remuneration has been enshrined in a long history of awards regulating employment in agriculture dating back to the early 20th century.’ 65

[73] The AFPA’s characterisation of clause 15.2 as providing ‘a performance-based safety net that contains an element of risk and reward’ and as constituting a ‘risk-reward bargain’, is misconceived. The practical operation of the provision, discussed in section 4.5.2, makes clear that it is the employee who bears all of the risk and that pieces rates are set unilaterally by the grower and presented to the employee on a ‘take it or leave it’ basis, rather than being the product of any genuine negotiation. In no sense is it accurate to describe the current piece work provisions in the Horticulture Award as a ‘risk-reward bargain’.

[74] The Piecework Information Note identified 10 modern awards which included task-based remuneration provisions:

• Building and Construction General On-Site Award 2020 (see clause 19.6)

• Market and Social Research Award 2020 (see clause 14.5)

• Meat Industry Award 2020 (see clause 18)

• Pastoral Award 2020 (see clause 51)

• Real Estate Industry Award 2020 (see clause 16.7)

• Silviculture Award 2020 (see clause 15.2)

• Sugar Industry Award 2020 (see clause 17.3)

• Timber Industry Award 2020 (see clause 13)

• Wine Industry Award 2020 (see clause 17)

• Wool Storage, Sampling and Testing Award 2020 (see clause 16.3).

[75] The Information Note observes that of those 10 awards, 6 provided pieceworkers with a minimum guaranteed wage:

• Building and Construction General On-Site Award 2020

• Meat Industry Award 2020

• Pastoral Award 2020

• Silviculture Award 2020

• Sugar Industry Award 2020

• Wool Storage, Sampling and Testing Award 2020.

[76] The AFPA contends that only 9 modern awards contain a provision for piecework; 66 but, even on the AFPA’s characterisation, 4 of the 9 modern awards which provide for piecework also make provision for a minimum wage guarantee.67

[77] Further, other safeguards are commonly incorporated into the task-based remuneration provisions, for example:

• an obligation on the employer to take measures to ensure an employee with limited English understands the proposed agreement (see clause 17.9 of the Wine Industry Award 2020).

• an obligation on the employer to provide an assurance that the remuneration offered to a commission-only employee is comparable to the remuneration received by a comparable employee on a similar project being remunerated on a time-basis, plus a contingency margin (see clause 14.5 (b) of the Market and Social Research Award 2020).

• an obligation on the employer requiring that the information upon which payments under an incentive system are calculated, and all payments made and other benefits provided to employees under a system be recorded in writing in the time and wages records of the employer kept in accordance with the requirements of the Act (see clause 18.5 of the Meat Industry Award 2020).

• limitations on entering a commission-only remuneration arrangement based on age, demonstrated earning experience, seniority, years of experience, or where a required annual review shows the minimum income threshold amount has not been received (see clause 16.7 of the Real Estate Industry Award 2020).

• level of piecework rates prescribed by the modern award (see clauses 51.7(a) and 51.9(b) of the Pastoral Award 2020).

• an employee’s right to unilaterally terminate the piecework agreement if remuneration received over 3 consecutive shifts is below what would have been received under time-based remuneration arrangements (see clause 15.2(b) of the Silviculture Award 2020).

• an obligation to review the piecework agreement to ensure the employee receives full entitlements owed (see clause 17.3(b) of the Sugar Industry Award 2020); and

• a requirement that working under a piecework agreement must not disadvantage the employee in relation to their terms and conditions of employment (see clause 16.3(d) of the Wool Storage, Sampling and Testing Award 2020).

[78] A review of the history of piecework award provisions shows the enduring relevance of protective measures (such as a guaranteed minimum wage) as a guard against exploitation. Such considerations are reflected in the variety of protective measures in piecework provisions in modern awards. It is also apparent from those provisions that there is no inherent discordance between piecework remuneration and the provision of a guaranteed minimum wage.

3.3 Relevant Award History

[79] The Horticulture Award was made pursuant to s.576E of the Workplace Relations Act 1996 (Cth) and a Request made by the then Minister for Employment and WorkplaceRelations that the Australian Industrial Relations Commission (AIRC)undertakean award modernisation process. 68

[80] As initially published by the AIRC on 3 April 2009, 69 clause 15.6 provided:

‘15.6 In no case will a full-time, part-time or casual employee working under a piecework agreement be paid less than the prescribed ordinary rate payable to the employee for the hours of worked performed.’

[81] In August 2009, following a direct appeal by the NFF to the Minister for Employment and Workplace Relations, 70 the Minister issued an amended Award Modernisation request (Amended Modernisation Request). The Amended Modernisation Request relevantly directed that in regards to the Horticulture Award, the Commission ‘shouldenable employers in the horticulture industry to continue to pay piecework rates of pay to casual employees who pick produce, as opposed to a minimum rate of pay supplemented by an incentive based payment.’71 [Emphasis added]

[82] On considering the Amended Modernisation Request, the AIRC noted that ‘clause 15.6 [as previously published] is inconsistent with … the consolidated request’ and granted the joint application by the NFF and Ai Group to vary the newly made modern Horticulture Award to include what is now clause 15.2. The relevant parts of the Full Bench’s decision are as follows:

‘Clearly the applications must be considered in light of the terms of cll.50 and 51 of the consolidated request. Clause 50 states that the Commission should enable employers in the horticulture industry to continue to pay piece rates of pay to casual employees who pick produce, as opposed to a minimum rate of pay supplemented by an incentive based payment. Clause 51 states that the Commission should have regard to the perishable nature of the produce grown by particular sectors of the industry when setting hours of work and to provide for arrangements which accommodate seasonal demands and restrictions caused by weather. In a letter to the President of the Commission which accompanied the relevant variation to the consolidated request, the Minister referred to existing award arrangements in the industry. The following passage is relevant:

“I note that the majority of federal awards and NAPSAs in the horticulture sector have long provided for piece rates for casual employees, rather than the minimum wage and incentive payment system as included in the modern award made by the Commission.”

The NFF and AiGoup contended that the principal award was the Horticulture Award 2000. That award has three schedules, designated A to C respectively. The schedules contain different conditions of employment. The award was made primarily by reference to the provisionsapplying to Schedule A respondents, a position advanced in the consultations by the AWU. In these proceedings the AWU accepted that Schedules B and C have more extensive geographic and industrial application. It agreed with the NFF and AiGroup that it would be more appropriate if the modern award were to be based on the conditions in those schedules rather than the conditions in Schedule A. The HAC submitted that its application was based on the provisions in 11 instruments – two pre-reform awards and nine NAPSAs.

There is no single existing instrument which could be said to apply generally in the industry. Further, it is necessary, when considering the various provisions, to have regard to the totality of the provisions in any particular instrument. There is no definitive information as to the application of the individual awards or NAPSAs. Whilst the provisions of all of the instruments are relevant to some degree, we think greatest weight should be given to the Horticulture Award 2000. That award is a major award. It operates, with respect to Schedule A, in Victoria, South Australia and New South Wales, with respect to Schedules B and C to named employers in Victoria and members of two Victorian employer associations, the Tasmanian Farmers and Graziers Association and the AiGroup.

…

As we have already indicated, there are two parts of the joint application relating to pieceworkers which the AWU opposes. The first relates to the guaranteed minimum payment which presently appears in the modern award. The second concerns the amount of the piecework loading.

In relation to the first matter, the AWU submitted that the provision in cl.15.6 of the modern award that piecework employees receive a guaranteed minimum payment equal to the wage they would have earned for the hours actually worked should not be altered. We note, however, that there is no equivalent provision in the Horticulture Award 2000, or in any of the schedules to that award. As we have previously noted, that award is the main award in the industry and its provisions carry great weight. Furthermore, it appears to us that cl.15.6 is inconsistent with cl.50 of the consolidated request. We grant this part of the joint application.’ 72

[83] The submissions of a number of the employer parties rely on the fact that, in its present form, clause 15.2 was made as part of the award modernisation process and consistently with the Amended Modernisation Request from the then Minister for Employment and Workplace Relations. 73

[84] It is variously submitted by employer parties that the historical background is a ‘significant motivating factor against the application’, 74 or that the ‘provisions should not be altered to satisfy the Unions' disagreement with the amended Request’,75 or that the ‘variations proposed by the AWU would make the Horticulture Award inconsistent with the Award Modernisation Request which was varied specifically to avoid the outcome which the Union seeks to achieve.’76

[85] The AWU and UWU (the Union parties) submit that the decision of the AIRC in Re Horticulture Award 2010 does not stand in the way of acceptance of the Application. 77

[86] The UWU responds to the various employer submissions as follows:

‘To the extent that these submissions suggest that the FWC's power under s 157 to vary an award is limited or constrained by the history of that award, or the presumption that applied to the (now abolished) four yearly review of modern awards that a modern award met the modern awards objective at the time it was made, or that the varied award modernisation request is dispositive of this application, they are incorrect. The FWC is entitled to and should take into account all of those matters which it might properly consider to be relevant. That includes matters that have emerged since the making of the Award - including evidence of the operation of the modern award clause - that now justify the Award variation.’ 78

[87] As mentioned earlier, in our consideration of the Application it is appropriate that we take into account previous decisions relevant to any contested issue and that we proceed on the basis that prima facie the Horticulture Award achieved the modern awards objective at the time it was made. The extent of a previous Full Bench’s consideration of a contested issue is relevant to our assessment of the weight to be attributed to that decision.

[88] It is apparent from an examination of the relevant decision that the Award Modernisation Full Bench did not undertake a detailed or considered review of the piecework arrangements in the Horticulture Award.

[89] The AIRC decision not to include a minimum wage floor for pieceworkers was plainly a consequence of the constraints imposed by the Amended Modernisation Request and the Full Bench’s assessment of the piecework provisions in the pre-reform instruments and, in particular, the Horticulture Award 2000. As the UWU submits, 79 the ‘critical point’ is that the Amended Modernisation Request expressly directed the AIRC to remove any minimum rate floor from the Horticulture Award.

[90] In these circumstances, we do not propose to give any weight to the decision of the AIRC in Re Horticulture Award 2010. 80We agree with the Union parties’ submission that the decision does not stand in the way of acceptance of the Application.

[91] We also agree with the observation of the Full Bench in Re Restaurant & Catering Industrial, 81that ‘the constraints that the Minister’s Award Modernisation Request placed on the AIRC as to the terms it could include in modern awards do not apply to variations to modern awards under the Act.’82

3.4 Clause 15.2 of the Horticulture Award

[92] Clause 15 of the Horticulture Award is titled ‘Minimum rates’. Clause 15.1(a) sets the classifications and minimum rates for an adult employee by reference to minimum weekly rates (for full-time employees) and minimum hourly rates. Clause 15.3(a) sets minimum rates for junior employees by reference to a percentage of the adult rate. Clause 15.2 is titled ‘Pieceworker rates’ and provides, relevantly:

‘15.2 Pieceworker rates

(a) An employer and a full-time, part-time or casual employee may enter into an agreement for the employee to be paid a piecework rate. An employee on a piecework rate is a pieceworker.

(b) The piecework rate fixed by agreement between the employer and the employee must enable the average competent employee to earn at least 15% more per hour than the minimum hourly rate prescribed in this award for the type of employment and the classification level of the employee. The piecework rate agreed is to be paid for all work performed in accordance with the piecework agreement.

(c) The calculation of piecework rates in clause 15.2(b) for casual employees will include the casual loading prescribed in clause 11.2(a).

(d) An agreed piecework rate is paid instead of the minimum rates specified in clause 15.

(e) The following clauses of this award do not apply to an employee on a piecework rate:

(i) Clause 13—Ordinary hours of work and rostering arrangements;

(ii) Clause 18.3(c)—Meal allowance; and

(iii) Clause 21—Overtime.

(f) The employer and the individual employee must have genuinely made the piecework agreement without coercion or duress.

(g) The piecework agreement between the employer and the individual employee must be in writing and signed by the employer and the employee.

(f) The employer must give the individual employee a copy of the piecework agreement and keep it as a time and wages record.

(g) Nothing in this award guarantees an employee on a piecework rate will earn at least the minimum ordinary time weekly rate or hourly rate in this award for the type of employment and the classification level of the employee, as the employee’s earnings are contingent on their productivity.’ [Emphasis added]

[93] Clause 15.2(a) permits an employer and employee to enter an agreement for the employee to be paid a piecework rate. The piecework rate fixed by agreement must enable the average competent employee to earn at least 15% more per hour that the minimum hourly rate to comply with clause 15.2(b). 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.

[94] Clause 15.2 of the Horticulture Award was considered by the Federal Court in Fair Work Ombudsman v Hu (No 2) 83 (Hu (No 2))and Fair Work Ombudsman v Hu84 (the Hu Appeal). The UWU submits85 that the following key principles can be drawn from these judgments:

1. Clause 15.2 is a protective provision designed to provide a safeguard for pieceworkers. 86

2. While clause 15.2 requires the piecework rate to be fixed by agreement, in practical terms, this will almost invariably mean that the employer fixes the rate, and the employee decides whether to accept it.⁸⁷

3. The clause requires the minimum piecework rate to be determined by the following method:

(i) Ascertain the hourly rate prescribed under the Award for the type of employment and the classification level of the employee (including, for example, casual loading if applicable) and then add 15% to that amount.

(ii) The hypothetical ‘average competent employee’ must be identified.

(iii) Identify the hypothetical hourly pick rate of the ‘average competent employee’ performing the work at the particular place of work at that particular time.

(iv) Divide the hourly rate plus 15% by the hourly pick rate of the hypothetical ‘average competent employee’ or, where an employer has already set a piecework rate, the employer can compare the hourly pick rate of the ‘average competent employee’ against the calculation performed at paragraph i above. 88

4. The determination of the pick rate of the ‘average competent employee’ is not an arithmetical exercise, but rather a predictive, theoretical exercise made by reference to the workforce that is available or potentially available to the employer.⁸⁹ For example, for fruit or vegetable pickers, the hourly pick rate of the ‘average competent employee’ would be dependant upon the average quantity of fruit or vegetables such an employee would pick per hour.

5. The ‘average competent employee’ is not necessarily ‘proficient’ but at least ‘suitable, sufficient for the purpose, adequate’ and must be selected from the pool of hypothetical competent employees.⁹⁰ An employee who is not competent, for example, an employee who is still in training, must be excluded when determining the ‘average competent employee’.⁹¹

6. To determine what such a hypothetical employee will be able to earn, factors both personal and external to the hypothetical employee must be considered. These factors include:

(i) personal characteristics, such as diligence, aptitude, and experience; and an assumption that training and induction has been provided;

(ii) personal characteristics such as age, strength, and stamina (which while not relevant, on the evidence, in the case of picking mushrooms, may be relevant in relation to ‘some other types of horticulture’);

(iii) the general level of experience of the available workforce considered as a whole; and

(iv) external factors which may include density, quality, size of the product, the prevalence of unhealthy product which may be affected by growing conditions, as well as the nature and quality of the equipment provided.⁹²

[95] Further in Hu (No 2) the Court held that to be compliant with clause 15.2 of the Award, a piecework rate must not only be at a level which would allow the average competent employee to earn at least 15% more than the minimum hourly rate at the time the agreement is entered into, but must also be adjusted by the employer if the piecework rate later becomes inadequate:

‘the requirements to fix and pay at least minimum piecework rates are protective of employees, and cl 15.2 should be construed in light of that protective purpose. Where the piecework rate was adequate when the agreement was entered, but becomes inadequate during the term of the agreement, it is a contravention of cl 15.2 of the Award for an employer to continue to pay only the agreed, inadequate piecework rate.’ 93

[96] It is also convenient to deal here with Ai Group’s submissions that in Hu (No 2), Rangiah J ‘confirms that the protections outlined in cl 15.2 are consistent with ss.134 and 138 of the Fair Work Act 2009.’ 94

[97] The passage from Hu (No 2) to which Ai Group refers is as follows:

‘Clause 15.2 of the Award provides a safeguard for pieceworkers. That safeguard is the prescription of a method of calculation of a minimum piecework rate. Clause 15.2 requires that the minimum piecework rate must “enable the average competent employee to earn at least 15% more per hour than the rate prescribed in this award”. That is consistent with s 576L of the Workplace Relations Act 1996 (Cth) (repealed) and s 134 and 138 of the FWA, which require that modern awards must provide a fair minimum safety net of terms and conditions. However, the safeguard that cl 15 provides is limited. It is concerned with fixing minimum piecework rates, but not minimum earnings. As cl 15.9 makes clear, employees’ earnings depend upon their productivity and there is no guarantee that they will earn any minimum amount or hourly rate.

Clause 15.2 requires the piecework rate to be fixed by agreement. In practical terms, this will almost invariably mean that the employer fixes the rate and the employee decides whether or not to accept it.

The piecework rate must be fixed at the time the employment agreement is entered. An employer proposing to fix a particular piecework rate must assess the adequacy of the rate by first ascertaining the hourly rate prescribed under the Award for the type of employment and the classification level of the employee and then adding 15% to that amount. The employer must then assess the hourly rate an “average competent employee” is able to earn performing the work to be done under the agreement at the proposed piecework rate. The employer must make a comparison of the two rates to ensure that the latter equals or exceeds the former.’ 95

[98] Contrary to Ai Group’s submission, his Honour did no more than observe that the provision of safeguards for pieceworkers was consistent with the requirement to provide a fair safety net of terms and conditions. To the extent that it may be said that his Honour’s observations go further we would, respectfully, note that the statutory directive in s.134 to ensure that modern awards, together with the National Employment Standards (NES), provide a fair and relevant safety net of terms and conditions, is directed at the Commission not the Court.

[99] The Hu Appeal also dealt with the legal consequences of non-compliance with clause 15.2 and held that a piecework rate which is set at a rate less than the rate required by the operation of clause 15.2 is a breach of the Award and a contravention of the Act. 96

[100] In the Hu Appeal their Honours Flick and Reeves JJ held that an employee subject to a non-compliant piecework agreement does not, by result of the breach, become entitled to the ‘non piecework provisions’ of the Award, such as the minimum hourly rate of pay.

3.5 Record Keeping Requirements

[101] The Horticulture Award does not require records of hours worked to be kept for pieceworkers. For instance, clause 15.2 (h) requires that a copy of the ‘piecework agreement’ be kept ‘as a time and wages record’.

[102] Sections 535 and 536 of the Act respectively require employee records to be kept and pay slips to be given. Their content is prescribed in the Fair Work Regulations 2009 (Cth) (the Regulations) regs.3.32–3.34 and 3.46:

‘3.32 Records—content

For subsection 535(1) of the Act, a kind of employee record that an employer must make and keep is a record that specifies:

(a) the employer’s name; and

(b) the employee’s name; and

(d) whether the employee’s employment is permanent, temporary or casual; and

(e) the date on which the employee’s employment began; and

(f) on and after 1 January 2010—the Australian Business Number (if any) of the employer.

Note: Subsection 535(1) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4-1 deal with infringement notices relating to alleged contraventions of civil remedy provisions.

3.33 Records—pay

(1) For subsection 535(1) of the Act, a kind of employee record that an employer must make and keep is a record that specifies:

(a) the rate of remuneration paid to the employee; and

(b) the gross and net amounts paid to the employee; and

(2) If the employee is a casual or irregular part-time employee who is guaranteed a rate of pay set by reference to a period of time worked, the record must set out the hours worked by the employee.

(3) If the employee is entitled to be paid:

(a) an incentive-based payment; or

(b) a bonus; or

(d) a penalty rate; or

(e) another monetary allowance or separately identifiable entitlement;

the record must set out details of the payment, bonus, loading, rate, allowance or entitlement.

3.34 Records—overtime

For subsection 535(1) of the Act, if a penalty rate or loading (however described) must be paid for overtime hours actually worked by an employee, a kind of employee record that the employer must make and keep is a record that specifies:

(a) the number of overtime hours worked by the employee during each day; or

(b) when the employee started and ceased working overtime hours.

3.46 Pay slips—content

(1) For paragraph 536(2)(b) of the Act, a pay slip must specify:

(a) the employer’s name; and

(b) the employee’s name; and

(d) the date on which the payment to which the pay slip relates was made; and

(e) the gross amount of the payment; and

(f) the net amount of the payment; and

(g) any amount paid to the employee that is a bonus, loading, allowance, penalty rate, incentive-based payment or other separately identifiable entitlement; and

(h) on and after 1 January 2010—the Australian Business Number (if any) of the employer.

(2) If an amount is deducted from the gross amount of the payment, the pay slip must also include the name, or the name and number, of the fund or account into which the deduction was paid.

(3) If the employee is paid at an hourly rate of pay, the pay slip must also include:

(a) the rate of pay for the employee’s ordinary hours (however described); and

(b) the number of hours in that period for which the employee was employed at that rate; and

[103] The employee record requirements do not include keeping a record of hours worked by pieceworkers. Regulation 3.33(2) requires a record of hours worked to be kept for ‘a casual or irregular part-time employee who is guaranteed a rate of pay set by reference to a period of time worked’. The Explanatory Statement indicates that this requires a record of hours worked to be kept for casuals or irregular part-timers who are ‘paid by reference to … a period of time worked’. 97

[104] Similarly, the pay slip requirements do not require an employer to report hours worked by pieceworkers, noting that pieceworkers will not fall within reg.3.46(3) as they are not ‘paid at an hourly rate of pay’. 98

[105] Fair Work Ombudsman v Seasonal Farm Services 99 is also relevant, as it concerned the determination of pecuniary penalties for breaches of the Act arising from a failure to keep required records and a failure to pay workers their proper entitlements under the Horticulture Award. In that case, Vasta J made the following observation about the absence of record-keeping obligations under the Award and the implications for the FWO’s compliance activities:

‘The problem for the Fair Work Ombudsman was that there were no records as to the hours worked for the piece rate employees and that also impacted those workers who were on the mixed type of employment because, for the piece rate part of their component of their wages, there were no records. This made the investigation extremely difficult. Now, whilst that does mean that there is no evidence as to what was worked, it means that there is no way of ascertaining whether or not the breaches of the Fair Work Act 2009 (Cth) […] were even more blatant than what the investigation discovered.’ 100

4. EVIDENCE

4.1 Overview

[106] A list of witnesses who were called to give evidence during the hearings is attached at Attachment B.

[107] It is convenient to note here that the principal parties (AWU, UWU, NFF and AFPA) reached an agreed position in relation to the issue of evidentiary objections:

‘The agreed position is that the parties will not raise objections to each other’s evidence on the basis that each party will be free to make submissions that a piece of evidence will be given little weight or no weight (irrespective of whether the relevant witness was cross-examined.’ 101

[108] The case proceeded on the basis agreed by the principal parties.

[109] The evidence consisted of a range of reports; the evidence of lay witnesses and the evidence of 3 expert witnesses: Dr Howe, Professor Underhill and Mr Houston.

4.2 The Expert Evidence

4.2.1 General Observations

[110] We begin by making some general observations about survey evidence and qualitative research.

[111] In the Background Paper published on 26 July 2021, we drew the parties’ attention to a number of Full Bench decisions which have commented on the task of assessing the probative value of survey evidence and qualitative research. 102

[112] As observed by the Expert Panel in the 2012-13 Annual Wage Review decision: 103

‘There are well-understood rules about the conduct of surveys that need to be followed if the results of a survey of a sample of a particular population are to accurately represent the picture that you would get if you obtained the same information from that entire population. These rules include that the sample size or proportion sampled must be large enough. Most important, the sample for the survey must be selected on a random basis. If a membership list is used as the basis for a survey, then it is essential that those that respond are properly representative of the entire membership base (e.g. by firm size, form of ownership, industry sector, geographic location). Where this is not the case, then the responses become more like case studies or anecdotes—accounts of the situation of those who did respond, but not to be taken as representative of the survey population (e.g. the membership) as a whole. Even where the survey is representative of the membership, it needs additional evidence to show that it is representative of, for example, employers more broadly.

…

In evaluating the extent to which we can rely on survey evidence that is submitted to us, we would look for an account of the nature of the survey population, the method of collecting responses, the response rate and total number, evidence that the respondents are a true random sample (or close enough) of the survey population, and testing of findings against comparable aggregates produced by the ABS or other known reliable sources. It would also assist to provide a record of the questions asked.’ 104

[113] We adopt these observations.

[114] Further, as Mr Houston observes in his 11 June 2021 Expert Report:

‘the ability to make inferences from sample data in relation to the underlying population from which the sample is drawn depends on the extent to which that sample reflects (or can be weighted to reflect) the underlying population of interest.’ 105

[115] We accept this aspect of Mr Houston’s evidence. We also accept Mr Houston’s evidence that a robust sampling methodology involves a random sampling from the population such that everyone in the population has the same chance of ending up in the sample. 106

[116] In addition to the sampling frame and response rates, other factors can affect the reliability of survey evidence.

[117] Non-response bias is theoretically possible in any survey without a 100 percent response rate. Non-response bias refers to the potential for answers given by those who responded to the survey (or to a question within the survey) to be different from the answers that would have been given by those employees who either did not complete the survey (had they done so), or who responded to the survey but did not answer particular questions. Non-responses do not necessarily introduce bias and the fact and effect of non-response bias cannot be readily tested. Non-response bias may mean that the responses of the survey respondents are not representative of the survey population. 107

[118] Surveys may also be affected by self-selection bias. As Mr Houston observes:

‘Self-selection occurs when respondents decide themselves whether or not to be surveyed. Self-selection introduces bias when the characteristics of those who opt-in are different from those who do not opt-in.’ 108

[119] We conclude by observing that evidence, and in particular survey evidence, is rarely perfect. In assessing the evidence, part of our task is to determinate the probative value of that evidence. As observed by the Full Bench in the Penalty Rates Decision:

‘The assessment of survey evidence is not a binary task – that is, such evidence is not simply accepted or rejected. Most survey evidence has methodological limitations – be it sample related the nature of the questions put or the response rate. The central issue is the extent to which the various limitations impact on the reliability of the results and the weight to be attributed to the survey data.’ 109

[120] In reaching that conclusion, the Full Bench referenced an observation by the Productivity Commission in its Workplace Relations Framework: Productivity Commission Inquiry report, 110 regarding the stringent tests of survey reliability proposed by a Dr Bartley, who provided an expert report at the request of the Shop, Distributive and Allied Employees Association. Dr Bartley also provided an expert report to the Full Bench in the Penalty Rates Decision.

[121] It seems to us that aspects of Mr Houston’s evidence bear a striking similarity to that of Dr Bartley: they both amount to a counsel of perfection, in a context where perfection is not a realistic prospect.

[122] We also agree with the observation of the Full Bench in the Penalty Rates Decision that ‘the methodological problems associated with some survey evidence may mean that rather than dismiss the evidence the results are accepted as indicative or anecdotal, rather than definitive.’ 111

[123] The expert opinions of Dr Howe and Professor Underhill rely, in part, on qualitative focus group research.

[124] Qualitative research often attempts to identify themes emerging from focus group discussions or interviews with individuals. Such research cannot usually be said to be representative of the views or experiences of all employees in the cohort from which the participants are drawn.

[125] As a Full Bench of the Commission recently observed, ‘the validity of qualitative research … is widely accepted.’ 112

[126] The Commission had regard to evidence of this nature in the Penalty Rates Decision, in which the Full Bench observed:

‘Despite the limitations of qualitative research it can provide more detail and context to assist in gaining a deeper understanding about a particular issue.’ 113

4.2.2 Dr Howe’s evidence

[127] The UWU asked Dr Howe to provide a statement in relation to the Application (the First Statement). 114 Dr Howe is an Associate Professor of Law at the University of Adelaide; her main area of research expertise is in respect of the legal regulation of temporary labour migration.

[128] The AFPA engaged Mr Greg Houston to prepare an expert report (the First Houston Report), 115 that reviews and critiques the expert reports of both Dr Howe and Dr Underhill, including the methodology, assumptions and conclusions in each report. Mr Houston’s analysis of Dr Howe’s First Statement is set out in section 3 of the First Houston Report.116

[129] Dr Howe provided a statement in response to the First Houston Report (the Howe Reply) 117 and Mr Houston provided a reply to the Howe Reply (the Houston Reply).118

[130] At [19] of the First Statement, Dr Howe says:

‘The data from my research outlined at [6] has supported a finding that piece rates are generally set at levels which mean that workers who are on a piece rate don’t earn at least Award minimum rates, in fact they are paid well below Award minimum rates, generally earning less than $15 an hour.’ [Emphasis added]

[131] At [6] of the First Statement, Dr Howe states:

‘Over a three year period from 2016–18, I led an interdisciplinary research project investigating labour practices in the horticulture sector. This involved interviews and focus groups with 121 growers, 124 workers and 110 other stakeholders from industry associations, trade unions, labour hire, local, state and federal government, accommodation providers and community groups. The Report including collection of data in relation to underpayment of wages and the use of piece rates in employment of working holiday makers. The Report was called “Towards a Durable Future: Tackling Labour Challenges in the Australian Horticulture Industry”. Attached to this statement and marked “JH-1” is a copy of this report.’

[132] The finding at [19] of the First Statement was the focal point of the challenge to Dr Howe’s evidence.

[133] At [155] to [157] of the First Houston Report, Mr Houston addresses the finding at [19] of the First Statement and says:

‘Research report JH-1 does not appear to quantify the average pay received by piece rate workers or the proportion of piece rate workers that earn an hourly rate below the minimum wage.

Rather, Dr Howe’s conclusion that piece rate workers generally earn an hourly rate that is ‘well below the Award minimum rates’ appears to be based on outcomes of the focus group and findings from two other relevant reports, which I note at paragraph 150 above.

It is not clear how Dr Howe reaches the conclusion that workers who are on a piece rate earn ‘less than $15 an hour’ based on the research report JH-1.’ [Footnotes omitted]

[134] Research Report JH-1 is the report Towards A Durable Future: Tackling Labour Challenges in the Australian Horticulture Industry (the Durable Future Report). 119 It was the product of a 3-year national study into the conditions of work in the horticulture industry, was funded by industry and commissioned by VegetablesWA (an industry body for vegetable growers in Western Australia). The study was undertaken by an interdisciplinary research team consisting of 5 scholars across 2 universities. Dr Howe was the project leader on the study and the lead author on the final report.

[135] Before turning to the evidence of Dr Howe and Mr Houston, it is convenient to deal first with the AFPA’s submission that Dr Howe ‘lacked objectivity and impartiality as an expert’ and that ‘the Commission should carefully scrutinise Dr Howe’s opinion and the data on which they are based and should not accept any of her ipse dixit evidence.’ 120

[136] The AFPA submits:

‘Dr Howe was an unimpressive expert. Her reports and cross-examination demonstrated that she lacked objectivity and impartiality as an expert. Dr Howe used her evidence as a platform to advance a cause that she pursues in her academic research work — improving regulation of the pay and working conditions of temporary migrants. She did not charge a fee for her work, confirming that she had other motivations to become a witness.’ 121 [Footnotes omitted]

[137] In support of the proposition that Dr Howe lacked objectivity and impartiality, the AFPA submit that Dr Howe was not prepared to concede errors and limitations in her work, did her utmost to avoid directly answering any questions where the answer looked unhelpful to the perspective she wanted to present, and refused to make even the most obvious and necessary concessions. The AFPA refers to the following examples in support of its submissions:

• The Howe Growers Survey formed part of the ‘[t]he data’ to which Dr Howe referred in [19] of the Howe Primary Statement as ‘support[ing]’ the Howe $15 Finding. But Dr Howe made no mention of the Howe Growers Survey in her primary statement and, as explained above, omitted the appendices to the Durable Future Report that would have enabled the reader of her statement to easily find the survey. This omission (deliberate or otherwise) was a serious problem that made the $15 finding at [19] substantially misleading. Dr Howe ought to have acknowledged this, as soon as the problem was revealed in Mr Houston’s report. But Dr Howe was unrepentant, both in her reply report and in cross-examination. She refused to even concede that the Howe Growers Survey did not ‘support’ the Howe $15 Finding. 122

• At one point, Dr Howe refused to directly concede that undocumented migrants are the most vulnerable cohort in the horticulture industry and insisted on trying to qualify this proposition, even though the proposition reflected verbatim a finding that she herself had made in the Durable Future Report. Eventually, Ross P was forced to intervene to direct Dr Howe to ‘just answer the question that’s put’. 123

• Another stark example of her preparedness to deny the obvious when it did not suit her was her response to the question about the proper classification of the Howe $15 Finding. Despite volunteering that ‘quantitative’ research is primarily concerned with the ‘What?’ questions whereas ‘qualitative’ research is primarily concerned with the ‘Why?’ or ‘How?’ questions, 124 Dr Howe refused to concede that her finding that pieceworkers generally earn less than $15 per hour is a quantitative finding.125 Her cross-examination is replete with other examples of this behaviour.126

[138] The AFPA advances 3 broad lines of argument in support of the proposition that Dr Howe adopted a partisan approach to her evidence:

1. The appendices to the Durable Future Report were not filed with the First Statement.

2. During cross-examination Dr Howe was not prepared to concede errors and limitations in her work or to make obvious concessions.

3. Dr Howe’s failure to reference to the OmniPoll Survey in the First Statement.

[139] The Appendices to the Durable Future Report were not included in the report which was attached to the First Statement. Relevantly, Appendix A deals with the methodology underpinning the report and Appendix C deals with the OmniPoll national survey of vegetable growers (the OmniPoll Survey).

[140] We take it that the inference sought to be drawn from the non-inclusion of the Appendices in her statement is that Dr Howe did not meet her obligation as an expert witness to include all of the matters of significance that might bear upon the findings or opinions postulated in her witness statement. 127

[141] Dr Howe was cross-examined in respect of this issue 128 and explained that she was not seeking to ‘hide this survey or the methodology’ and that:

• 2 versions of the report were produced, one with only the substantive report and the other with the report and the appendices. Dr Howe was not able to attach the second version to her statement because of the file size and the limitations of the University’s server;

• the report itself includes references to the Appendices;

• various horticulture industry participants, including the NFF, were provided with a full copy of the report (including the Appendices); and

• the full copy of the report, including the Appendices is available on the internet. 129

[142] We accept Dr Howe’s explanation. We also note that the table of contents in the report filed by Dr Howe clearly references the Appendices; it cannot be said that there was any attempt to hide this material. The AFPA’s reliance on the non-inclusion of the Appendices is without substance.

[143] The second line of argument contends that Dr Howe’s cross-examination reveals an unwillingness to concede errors or limitations in her work or to make obvious concessions.

[144] Based on a careful review of the transcript and our own recollections of the manner in which Dr Howe gave her evidence, we reject the proposition advanced. On occasion Dr Howe sought to qualify the answer given under cross-examination, rather than simply providing a yes or no answer. But nothing flows from this; it simply reflects the complexity of the issues raised and the need for a nuanced answer rather than simply accepting the proposition put by counsel. We would also observe that Mr Houston adopted a similar approach, on a number of occasions. 130

[145] Finally, we turn to the OmniPoll Survey point. It was put to Dr Howe during cross-examination that her failure to refer to the OmniPoll Survey results in the First Statement was ‘reflective of a partisan approach’ to her evidence. This proposition was firmly rejected by Dr Howe:

‘And you've turned your face against the OmniPoll survey of growers that contradicts that finding. You don't even mention it in your statement. Can I suggest to you that that's reflective of a partisan approach to your witness evidence in this case. Do you accept that?---Absolutely not. I strongly reject that. I did not include the survey because I did not think it was appropriate, and that in terms of feeding into my expert assessment about the $15 an hour as a general assessment. The survey was discounted based on the small sample size and the cautions that OmniPoll themselves gave us about that question and the response rate for it. So I absolutely reject that. And I've received funding from industry to do this research, as well has [sic] having worked with unions, and I consider myself to be as objective as anyone can be in this kind of research. So I really do strongly reject your last statement.’ 131

[146] We discuss the OmniPoll Survey further in section 4.4 of this decision where, among other limitations in the data, we note that the sample size in respect of growers engaging pieceworkers is quite small and that the report of the survey results (the OmniPoll Report) contains a warning to that effect. Suffice to say here that we accept Dr Howe’s explanation as to why she did not refer to the survey in the First Statement.

[147] We also note Dr Howe’s unprompted evidence that this was the first time she had written an expert statement; 132 that she did not receive payment for preparing her expert statements,133 and that the statement was ‘very brief’ because of her teaching load at the time.134 It is also relevant to note that the Durable Future Report – of which Dr Howe was a lead author – was commissioned by employer interests in the horticulture industry. These matters tell in favour of Dr Howe’s impartiality.

[148] For the reasons given we reject the proposition that Dr Howe lacked objectivity and impartiality as an expert.

[149] We now turn to the substance of Dr Howe’s evidence.

[150] As mentioned earlier, the focus of the challenge to Dr Howe’s evidence was her opinion, at [19] of the First Statement, that pieceworkers are ‘in fact … generally earning less than $15 an hour’.

[151] At [19] of the Howe Reply, Dr Howe states:

‘in response to paragraph 160 in the HoustonKemp report, in my first statement where I state at paragraph 19 that “the data from my research” is the basis for my view that piece rate workers are “paid well below the Award minimum rates, generally earning less than $15 an hour”, I am making this statement as a general, expert assessment formed through my extensive and robust mixed methodology research of labour practices in the horticulture industry over many years.’ [Emphasis added]

[152] The AFPA submits that Dr Howe’s finding at [19] of the First Statement ‘is not valid and has no probative value’. 135 At [98] of its closing submissions, the AFPA submits:

‘A bare assertion of this kind is not a tenable basis for making qualitative findings about earnings in an industry and has no probative value.’

[153] In a recent decision 136 a Full Bench attached very little weight to particular opinions in an expert report where the basis of the opinion was not expressed, noting that:

‘A bare expression of opinion, absent any sufficient explanation of the basis of that opinion, is normally given little weight. As observed in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh: 137

164 Exhibit AWU 16 at [24], Table 3.

165 Exhibit AWU 16 at [26], Table 4.

166 Australian Workers’ Union, ‘Submissions for the AWU RE Factual Findings Urged by the Applicant’, Submission in Horticulture Award 2020, AM2020/104, 26 July 2021 at [2(c)] (‘AWU submission, 26 July 2021’).

167 AWU submission, 26 July 2021 at [51].

168 Exhibit AWU17, Reply Report of Dr Underhill at [28]; also see Transcript, 15 July 2021 at PN1341.

169 Exhibit AFPA6, Expert Report of Greg Houston at [32].

170 AWU submission, 26 July 2021 at [52].

171 AFPA closing submission, 26 July 2021 at [27(b)].

172 Australian Fresh Produce Alliance, ‘AFPA’s submission addressing the Campbell Article (AWU-30)’, Submission in Horticulture Award 2020, AM2020/104, 30 July 2021 at [8].

173 Exhibit AWU 16 at [25]

174 Exhibit NFF 3 at [21].

175 Transcript, 16 July 2021 at PN1858–59 (cross-examination of Mr Rogers).

176 Transcript, 16 July 2021 at PN1861 (cross-examination of Mr Rogers).

177 Exhibit AWU 19.

178 Exhibit NFF 3.

179 Transcript, 15 July 2021 at PN1958.

180 Exhibit AWU 19.

181 National Farmers’ Federation, ‘NFF’s Submissions as to Evidence’, Submission in Horticulture Award 2020, AM2020/104, at [11(c)] (‘NFF submission, 26 July 2021’).

182 AFPA closing submission, 26 July 2021 at 18.

183 Transcript, 15 July 2021 at PN1831–38.

184 Exhibit NFF 9, Attachment A; Exhibit NFF 13, Attachment C.

185 Transcript, 15 July 2021 at PN1831–56

186 Transcript, 15 July 2021 at PN1838.

187 Transcript, 15 July 2021 at PN1847.

188 Transcript, 15 July 2021 at PN1853.

189 Transcript, 15 July 2021 at PN1854–56.

190 Transcript, 16 July 2021 at PN3005.

191 Exhibit NFF 13 at [15]–[16].

192 Exhibit NFF 13 at [18].

193 Transcript, 16 July 2021 at PN2995.

194 Transcript, 16 July 2021 at PN2996–9.

195 Exhibit NFF9, Attachment A.

196 Transcript, 16 July 2021 at PN2754–5.

197 Transcript, 16 July 2021 at PN2765–9.

198 Exhibit NFF 13, Attachment C; CB3037.

199 Transcript, 16 July 2021 at PN3024–31.

200 Exhibit NFF 13, Attachment C; CB3047.

201 Exhibit AFPA 1, Appendix C, OmniPoll, Vegetable grower practices, experiences and views concerning employment of seasonal farm labour (Report no. 160820, August/September 2016) at 9 (‘OmniPoll Report’).

202 Ibid at 8, 17.

203 Ibid at 8–9, 16–17.

204 Ibid at 39, 47.

205 PR579790.

206 OmniPoll Report at 39, 47.

207 Ibid.

208 Ibid at 38, 46.

209 Ibid.

210 Transcript, 13 July 2021 at PN903 (cross-examination of Dr Howe); Exhibit UWU 8 at [27]–[28].

211 Exhibit UWU 8 at [29]–[36].

212 Exhibit AFPA 6 at [165]; Exhibit AFPA 7 at [54]–[55].

213 Transcript, 20 July 2021 at PN4082 (cross-examination of Mr Houston).

214 AFPA closing submission, 26 July 2021 at [47].

215 OmniPoll Report at 8, 16.

216 Ibid at 39, 47.

217 Ibid.

218 Exhibit AWU 1.

219 Ibid at [3].

220 Ibid at [7], [9].

221 Ibid at [10].

222 Ibid at [11].

223 Ibid at [12].

224 Ibid at [13].

225 Exhibit AWU 3.

226 Ibid at [8], [9].

227 Exhibit UWU 5.

228 Ibid at [15].

229 Exhibit UWU 2.

230 Ibid at [43], [51].

231 Exhibit AWU 2.

232 Ibid at [4].

233 Ibid at [8]–[9].

234 Ibid at [12].

235 Exhibit UWU 4.

236 Ibid at [15].

237 Exhibit UWU 6.

238 Ibid at [12].

239 Ibid at [13].

240 Ibid at [14].

241 Ibid at [32].

242 Exhibit AWU 12.

243 Ibid at [10].

244 Exhibit AWU 4; Exhibit AWU 5.

245 Exhibit AWU 4 at [21]–[23]

246 Exhibit AWU 6.

247 Exhibit AWU 6 [15].

248 Exhibit AWU 10; Exhibit AWU 11.

249 Exhibit AWU 10 at [44]–[45].

250 Exhibit AWU 8.

251 Ibid at [12]–[14].

252 Exhibit AWU 7.

253 Ibid at [18].

254 Exhibit UWU 1.

255 Ibid at [7].

256 Ibid at [11].

257 Exhibit AWU 9.

258 Ibid at [11].

259 Transcript, 13 July 2021 at PN163 (cross-examination of Chee Sing Ee).

260 Ibid at PN165 (cross-examination of Chee Sing Ee), PN218 (cross-examination of Hsu).

261 Ibid at PN527 (cross-examination of Rodney McDonald).

262 Ibid at PN190 (cross-examination of Xueliang Wang).

263 See, e.g., Transcript, 13 July 2021 at PN416 (cross-examination of Steven Carter).

264 NFF Submission on Evidentiary Weight, 29 July 2021 [3](c).

265 AFPA’s closing submission on the evidence at [43]

266 For example see ibid at [31]

267 National Farmers’ Federation, ‘NFF’s [11(b)].

268 Exhibit NFF 10.

269 Exhibit NFF 10[5]–[6].

270 Exhibit NFF 15.

271 Exhibit NFF 15 [23].

272 Exhibit NFF 12.

273 Exhibit NFF 11.

274 Exhibit NFF 13.

275 Exhibit NFF 14.

276 Exhibit NFF 7.

277 Exhibit NFF 2.

278 Exhibits AFPA 2 and AFPA 3.

279 Exhibit NFF 4.

280 Exhibit NFF 9.

281 Exhibit NFF 1.

282 Exhibit NFF 3.

283 Exhibit NFF 8.

284 Exhibit NFF 5.

285 Exhibit NFF 6.

286 Exhibit NFF 6 at [23]–[24].

287 Exhibit NFF 7 at [11].

288 Exhibit NFF 8 at [13], [32].

289 Exhibit NFF 9 at [33].

290 Exhibit NFF 11 at [25].

291 See Statement [2021] FWC 3838.

292 See Exhibit NFF 4; Exhibit AWU 21; Transcript, 15 July 2021 at PN1977–2120; Exhibit NFF2; AWU18; Transcript, 15 July 2021 at PN1684–779.

293 NFF Submission, 6 August 2021 [5]–[6], [12]–[14].

294 [1944] HCA 48; 181 CLR 387.

295 [2005] HCA 74. See also City of Stirling v Kevin Emery [208] FWCFB 2279; Andrew Hill v Peabody Energy Australia PCI Pty Ltd [2017] FWCFB 4944.

296 [2005] HCA 74 [38].

297 Section 15.2 (a) of the Horticulture Award states that the piecework rate fixed by agreement between the employer and the employee must enable the average competent employee to earn at least 15 per cent more per hour than the minimum hourly rate prescribed in this award for the type of employment and the classification level of the employee.

298 Workers may work more than 1 shift.

299 Hu (No 2) at [26]–[27].

300 Ibid at[31].

301 Ibid at[30], [85].

302 cl.15.2(f).

303 cl.15.2(g).

304 cl.15.2(h).

305 Fair Work Ombudsman v Hu (No.2) (2018) 279 IR 162 [24]

306 Fair Work Ombudsman v Hu (No.2) (2018) 279 IR 162 [25]

307 See, e.g., Transcript, 15 July 2021 at PN 1655 (cross-examination of Ms Reardon), PN 1710–14 (cross-examination of Mr Kelly), PN 2162–63 (cross-examination of Ms Silverstein); Transcript, 16 July 2021 at PN 2530 (cross-examination of Mr Gaeta), PN2677 (cross-examination of Mr Siah), PN2683 (cross-examination of Mr Siah), PN 2854 (cross-examination of Mr Benham), PN 3100–01 (cross-examination of Mr Eckersley), PN 3515–20 (cross-examination of Mr King).

308 See, e.g., Exhibit NFF4 at [21]; Transcript, 16 July 2021 at PN 2042–8.

309 Exhibit NFF 13; Transcript, 16 July 2021 at PN2938–3034.

310 Transcript, 16 July 2021 at PN2965 (cross-examination of Ms Distill).

311 Ibid at PN2968 (cross-examination of Ms Distill).

312 Exhibit NFF 14; Transcript, 16 July 2021 at PN3043–3129.

313 Exhibit NFF 14 at [12]–[13].

314 Transcript, 16 July 2021 at PN3100–1 (cross-examination of Mr Eckersley).

315 Exhibit NFF 7; Transcript, 16 July 2021 at PN2491–2592.

316 Exhibit NFF 7 at [9].

317 Transcript, 16 July 2021 at PN2529–30 (cross-examination of Mr Gaeta).

318 Ibid at PN2514–2515 (cross-examination of Mr Gaeta).

319 Ibid at PN2545 (cross-examination of Mr Gaeta).

320 Ibid at PN2546 (cross-examination of Mr Gaeta).

321 Ibid at PN2547 (cross-examination of Mr Gaeta).

322 Ibid PN2546–PN2547 (cross-examination of Mr Gaeta).

323 Exhibit NFF 2; Transcript, 15 July 2021 at PN1684–779.

324 Transcript, 15 July 2021 at PN1704–1707 (cross-examination of Mr Kelly).

325 Exhibit NFF 2 at [15], [21]; Transcript, 15 July 2021 at PN1708 (cross-examination of Mr Kelly).

326 Transcript, 15 July 2021 at PN1710–4 (cross-examination of Mr Kelly).

327 Exhibit AFPA 2; Exhibit APFA 3; Transcript, 16 July 2021, PN3122–3613.

328 Transcript, 16 July 2021, PN3518 (cross-examination of Mr King).

329 Transcript, 16 July 2021, PN3526–3528 (cross-examination of Mr King).

330 Transcript, 16 July 2021, PN3516 (cross-examination of Mr King).

331 Transcript, 16 July 2021, PN3524 (cross-examination of Mr King).

332 Exhibit NFF 4; Transcript, 15 July 2021 at PN1977–2120.

333 Transcript, 15 July 2021 at PN1992 (cross-examination of Mr McClintock); Exhibit NFF 4 at amending paragraph [12].

334 Transcript, 15 July 2021 at PN2014, PN2016 (cross-examination of Mr McClintock).

335 Exhibit NFF 4 [21]; Transcript, 15 July 2021 at PN2029.

336 Exhibit NFF 4 [21]; Transcript, 15 July 2021 at PN2029.

337 Transcript, 15 July 2021 at PN2040–2041 (cross-examination of Mr McClintock).

338 Ibid at PN2043–7 (cross-examination of Mr McClintock).

339 Exhibit NFF 8; Transcript, 16 July 2019, PN2620–2717.

340 Transcript, 16 July 2021 at PN2678–83 (cross-examination of Mr Siah).

341 Exhibit NFF 8 at [28(d)].

342 Transcript, 16 July 2021 at PN2666–7 (cross-examination of Mr Siah).

343 Transcript, 16 July 2021 at PN2670 (cross-examination of Mr Siah).

344 Transcript, 16 July 2021 at PN2671–2 (cross-examination of Mr Siah).

345 Transcript, 16 July 2021 at PN2675–6 (cross-examination of Mr Siah).

346 Exhibit NFF 5; Transcript, 15 July 2021, PN2139–2272.

347 Exhibit NFF 5 [27]

348 Transcript, 15 July 2021, PN2181–2182 (cross-examination of Catherine Silverstein).

349 Transcript, 15 July 2021, PN2161–2162 (cross-examination of Catherine Silverstein).

350 Exhibit AWU 4 at [28].

351 Exhibit AWU 10 at [20].

352 Exhibit AWU 1.

353 Ibid at [3].

354 Ibid at [5].

355 Exhibit AWU 3.

356 Ibid at [10]

357 Exhibit UWU 2.

358 Ibid at [11]–[12].

359 Exhibit UWU 1 at [24].

360 Exhibit NFF 2 [18].

361 Exhibit NFF 4 at [21](a).

362 Exhibit NFF 5 at [27]; also see Transcript, 15 July 2021 at PN2180–217.

363 Exhibit NFF 7 at [10]; also see Transcript, 16 July 2021 at PN2524–2529.

364 Exhibit NFF 12 at [14]

365 Exhibit NFF 13 at [23]

366 Exhibit NFF 14 at [24].

367 Transcript, 16 July 2021 at PN3079 (cross-examination of Mr Eckersley).

368 Ibid at PN3078-82 (cross-examination of Mr Eckersley).

369 For example: Mr McDonald describes picking peaches and applies for a piece rate in 2018: ‘the grower held a group meeting in the morning with all the new pickers … He told us what the rates per bin would be and said words to the effect of “there’s a copy of the rates on the wall to look at if you want”. Later that year, working for a contractor on a large apple and pear farm, he signed a piecework agreement but ‘never got a copy of the agreement’: Exhibit UWU 2 at [11], [12]

370 Exhibit UWU 1.

371 Ibid at [39(c)].

372 OmniPoll Report at 39, 47: subject to a caution caveat about the very small sample sizes.

373 Fair Work Ombudsman, Harvest Trail Inquiry (Report, 2018).

374 Ibid at 29–30.

375 AFPA closing submission, 26 July 2021 at [31].

376 Exhibit NFF 2 at [28].

377 Ibid at [25].

378 Exhibit AFPA 2 at [50].

379 Ibid at [59]–[61].

380 Exhibit NFF 2 [32].

381 Exhibit NFF 9 [40]–[41].

382 Exhibit NFF 12 [22].

383 Exhibit NFF 13 [28].

384 Exhibit NFF 14 [34].

385 Exhibit NFF1 at [36]

386 Ibid at [29]–[30].

387 Exhibit NFF 4 at [22].

388 Exhibit NFF 5 at [32]

389 Exhibit AFPA 2 at [49].

390 Exhibit NFF 1 at [34].

391 Exhibit NFF 4 at [23].

392 Exhibit NFF 5 [33]

393 Exhibit NFF 7 at [8]

394 Exhibit NFF 8 at [34]

395 See the employer lay witness evidence at [300]; the McClintock data at [315] to [32]; and the Kelly data at [321] to [326].

396 See Dr Howe’s qualitative data at [160] and [164]; the NFF survey, Chart 3 at [218]; OmniPoll survey at [262] to [264]; Employee lay evidence at [280] to [284]; McClintock data at [314] and [319].

397 Exhibit NFF 1 at [36]

398 AWU submission, 19 March 2021 at [3].

399 AWU submission, 19 March 2021 at [3].

400 Ibid at [21].

401 Ibid at [5].

402 Ibid at [22(a)].

403 Ibid at [22(b)].

404 Ibid at [22(b)].

405 Ibid at [22(b)].

406 [2019] FCAFC 133; (2019) 289 IR 240.

407 Fair Work Ombudsman v Hu [2019] FCAFC 133; (2019) 289 IR 240 at [27]–[30].

408 Clause 19.6(e).

409 Clauses 15.2(a) and (b).

410 Clauses 17.3(a) and (b).

411 Clause 16(d).

412 UWU submission, 19 March 2021 at [8].

413 UWU submission, 19 March 2021 at [8(a)].

414 UWU submission, 19 March 2021 at [8(b)].

415 UWU submission, 19 March 2021 at [8(c)].

416 Fair Work Bill 2008 (Explanatory Memorandum) at [518].

417 UWU submission, 19 March 2021 at [8(e)].

418 Ibid at [28].

419 Ibid at [29].

420 Ibid at [30].

421 Ibid at [34].

422 Ibid at [9(b)].

423 Ibid at [35].

424 AFPA submission, 11 June 2021 at [6].

425 Ibid at [6(b)].

426 Ibid at [24].

427 Ibid at [25].

428 Ibid at [25(a)].

429 Ibid at [25(b)].

430 Ibid at [26].

431 Ibid at [27]–[33].

432 Ibid at [27].

433 Ibid at [28].

434 AFPA submission, 11 June 2021 at [33] (footnotes omitted).

435 Ibid at [6(a)].

436 Ibid at [40].

437 Ibid at [37].

438 Ibid 2021 at [41].

439 Transcript, 30 July 2021 at [266]

440 Ibid at [268]

441 Ibid at [268]

442 Ibid at [270]

443 Ibid.

444 Ibid at [303]

445 Ibid at [312]

446 Ibid at [309]–[311]

447 Ai Group submission, 1 June 2021 at [9].

448 Ibid at [22].

449 Ibid at [18].

450 Ibid at [13].

451 Ibid at [38].

452 Ibid at [65]–[66].

453 Ibid at [70]–[71].

454 Ibid at [75].

455 Ibid at [75].

456 Ibid at [76]–[77].

457 NFF submission, 11 June 2021 at [3].

458 Ibid at [3].

459 Ibid at [4].

460 Ibid at [27]–[28].

461 Ibid at [29]–[30].

462 Fruit Growers Tasmania, ‘Fruit Growers Tasmania’s Response to the AWU Submission to Fair Work Australia Regarding the Variation of Pieceworker Rates in the Horticulture Award’, Submission in Horticulture Award 2020, AM2020/14, 31 May 2021, at 7 (‘FGT submission, 31 May 2021’).

463 Ibid at 3.

464 Ibid.

465 Ibid at 4.

466 Ibid.

467 Ibid at 5.

468 Ibid at 6.

469 Ibid at 6–7.

470 Payne’s Farm Contracting Pty Ltd, ‘Submission to the Fair Work Commission to the AWU’s application to vary clause 15.2 Pieceworker Rates in the Horticulture Award 2020’, Submission in Horticulture Award 2020, AM2020/104, 21 May 2021 at 1.

471 Ibid at 1.

472 Lucaston Park Orchards, ‘Re: Horticultural Award and Piece work rates’, Submission in Horticulture Award 2020, AM2020/104, 19 April 2021 at 1.

473 LPO submission, 19 April 2021, p 2.

474 Ibid at 4–5.

475 Ibid at 5.

476 Ibid at 5.

477 Ibid at 6.

478 xhibit NFF 1 at [18]; E xhibit NFF 4 at [16]; E xhibit NFF 2 at [13], [22]; E xhibit NFF 14 at [19].

479 AWU submission in reply, 2 July 2021 at [15].

480 Horticulture Award, sch.A cl.A.1.2.

481 Statement of Moss at [36]; Statement of Kelly at [27]; Statement of Reardon at [30].

482 AWU submission in reply, 2 July 2021 at [17].

483 AFPA submission, 11 June 2021 at [25(b)]; Ai Group submission, 1 June 2021 at [103].

484 AWU submission in reply, 2 July 2021 at [18].

485 [2010] FWCFB 8179

486 AWU submission in reply, 2 July 2021 at [22].

487 Ibid at [20]. In support, the AWU relies on the observations of Bromberg J in the Hu Appeal at [98].

488 AWU submission in reply, 2 July 2021 at [21].

489 Ibid at [23].

490 Ai Group submission, 1 June 2021 at [36].

491 AWU submission in reply, 2 July 2021 at [25], citing Re 4 Yearly Review of Modern Awards — Annualised Wage Arrangements [2019] FWCFB 1289; (2019) 285 IR 152 at [36] in support.

492 NFF submission, 11 June 2021 at [25(a)], [26(b)]; Ai Group submission, 1 June 2021 at [80].

493 AWU submission in reply, 2 July 2021 at [27]–[28].

494 UWU submission in reply, 5 July 2021 at [5]–[6].

495 Ibid at [8].

496 Ibid at [10].

497 Ibid at [15].

498 Ibid at [24].

499 UWU submission in reply, 5 July 2021 at [26]–[27].

500 Ibid at [34].

501 AFPA submission, 11 June 2021, section E.

502 Ibid at [42].

503 AFPA closing submission. 26 July 2021 at 41.

504 AFPA submission, 11 June 2021 at [44].

505 Measured in an appropriate unit, such as punnet, bucket, kilogram, etc.

506 AFPA submission, 11 June 2021 at [44].

507 AFPA final submission, 26 July 2021 at [35]

508 Ibid at [49].

509 AWU submission in reply, 2 July 2021 at [26].

510 UWU submission in reply, 5 July 2021 at [14].

511 Ai Group submission, 1 June 2021 [5].

512 Ibid at [8].

513 Ibid at [22].

514 Ibid.

515 Ibid [26].

516 Ibid.

517 Ibid at [27].

518 Ibid at [28].

519 Ai Group Submission, 1 June 2021 at [30].

520 Ibid at [29].

521 Ai Group Submission, 1 June 2021 [31]–[35].

522 Fair Work Ombudsman, ‘FWO launches 2019-20 priorities’ (Media Release 3 June 2019).

523 Fair Work Ombudsman, ‘FWO launches 2020-21 priorities’ (Media Release, 13 July 2020).

524 Fair Work Ombudsman, Fair Work Ombudsman and Registered Organisations Commission Entity Annual Report 2019-2020 (Report, 18 September 2020) 1.

525 Ibid 1.

526 Ibid 15.

527 Ibid 19.

528 Ibid 15.

529 Ai Group submission, 1 June 2021 at [36].

530 NFF submission, 26 July 2021 [5](d).

531 The Act, s.134.

532 The Act, s.134(1)(g).

533 [2021] FWCFB 4149.

534 Re Restaurant Industry Award 2020 [2021] FWCFB 4149 at [110].

535 Hu (No 2) at[24]–[25].

536 [2017] FCCA 1020; see [103] above

537 Exhibit AFPA 2 at [57]; Exhibit NFF 11 at [32]; Exhibit NFF 8 at [36], [38]; Exhibit NFF 6 at [26]; Exhibit NFF 4 at [23]; Exhibit NFF 2 at [30].

538 Exhibit NFF 14 at [29]–[30], [34]; Exhibit NFF 11 at [31]; Exhibit NFF 13 at [30]; Exhibit NFF 12 at [21]; Exhibit NFF 9 at [39]; Exhibit NFF 8 at [36]; Exhibit NFF 6 at [26]; Exhibit NFF 4 at [27]; Exhibit NFF 2 at [30]; Exhibit NFF 1 at [35].

539 Exhibit NFF 14 at [33]; Exhibit NFF 13 at [28]; Exhibit NFF 12 at [22]–[23]; Exhibit NFF 8[39]; Exhibit NFF 7 at [14].

540 Exhibit AFPA 2 at [59], at [62]; Exhibit NFF 11[31], at [34]; Exhibit NFF 9 at [40], at [43].

541 Exhibit AFPA 2 at [59]; Exhibit NFF 14 at [34]; Exhibit NFF 4 at [28]; Exhibit NFF 2 at [32].

542 Exhibit NFF 14 at [30], at [35]; Exhibit NFF 13 at [32]–[33]; Exhibit NFF 8 at [40]; Exhibit NFF 4 at [29]–[30].

543 Exhibit NFF 7 at [9]; Exhibit NFF 9 at [42]; Exhibit NFF 11 at [33].

544 Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 [35].

545 (2017) 265 IR 1 [128]; Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [41]–[44].

546 [2018] FWCFB 3500 at [21]–[24].

547 Edwards v Giudice (1999) 94 FCR 561 at [5]; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121 at [81]–[84]; National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [56].

548 Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [33].

549 National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [105]–[106].

550 See National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [109]–[110]; albeit the Court was considering a different statutory context, this observation is applicable to the Commission’s task in the Review.

551 Ibid at [34], [362], [419].

552 MA000028; Australian Bureau of Statistics, Characteristics of Employment, Australia, August 2020 (11 December 2020); Australian Bureau of Statistics, Employee Earnings and Hours, Australia, May 2018 (22 January 2019).

553 Australian Workers’ Union, ‘AWU Application to Vary the Horticulture Award 2020 – Minimum Rates of Pay for Pieceworkers - Grounds for Application’, Submission to Horticulture Award 2020, AM2020/104, 15 December 2020 at [36] (‘AWU Application, 15 December 2020’).

554 AWU submission, 19 March 2021 at [25].

555 NFF submission, 11 June 2021 at [18].

556 AWU submission, 19 March 2021 at [27].

557 UWU submission, 19 March 2021 at [36(b)].

558 Ibid.

559 AI Group submission, 1 June 2021 [98]–[101]; NFF submission, 11 June 2021 [19].

560 NFF submission, 11 June 2021 [19].

561 Penalty Rates Decision at [179].

562 AWU Application, 15 December 2020 at [42]; AWU submission, 19 March 2021 at [28]–[29].

563 UWU submission, 19 March 2021 at [36(e)].

564 Ai Group submission, 1 June 2021 at [103]–[105].

565 NFF submission, 11 June 2021 at [20].

566 UWU submission, 19 March 2021 at [36(c)(i)].

567 Exhibit AFPA 2 at [59]–[61]

568 AWU submission, 19 March 2021 at [30]–[31]; AWU Application, 15 December 2020 at [44].

569 UWU submission, 19 March 2021 at [36(d)].

570 Ai Group submission, 1 June 2021 at [109].

571 NFF submission, 11 June 2021 at [21].

572 Penalty Rates Decision at [188].

573 AWU Application, 15 December 2020 at [45]; AWU submission, 19 March 2021 at [32].

574 Ai Group submission, 1 June 2021 at [114]; NFF submission, 11 June 2021 at [22].

575 UWU submission, 19 March 2021 [36(e)].

576 Equal Remuneration Decision 2015 [2015] FWCFB 8200 at [192].

577 AWU Application, 15 December 2020 [46]; Ai Group submission, 2 June 2021 [118]; NFF submission, 11 June 2021 at [23].

578 [2012] FWAFB 7858 at [45]–[46].

579 AWU submission in reply, 2 July 2021 at [13].

580 AWU submission, 19 March 2021 at [36].

581 cl.17.2(a).

582 cl.17.2(b).

583 cl.17.2(c).

584 UWU submission, 19 March 2021 at [36(f)].

585 Ibid at [36(f)(iii)].

586 UWU submission in reply, 5 July 2021 [32]–[33].

587 AFPA aide memoire, 29 July 2021 at [A.14].

588 Ai Group submission, 1 June 2021 at [120].

589 Ibid at [121]–[120].

590 Ibid at [123].

591 Ibid at [126].

592 NFF submission, 11 June 2021 at [24].

593 Exhibit AFPA 2 at [60]

594 AWU submission, 19 March 2021 at [38]–[39].

595 UWU submission, 19 March 2021 at [36(g)].

596 NFF submission, 11 June 2021 at [25].

597 AWU submission, 19 March 2021 at [40].

598 UWU submission, 19 March 2021 at [36(h)].

599 Ai Group submission, 1 June 2021 at [87]–[90].

600 AFPA submission, 11 June 2021 at [38].

601 Horticulture Award, sch.A cl.A.1.2.

602 Ibid, sch.A cl.A.1.2.

603 [2000] AIRC 276 at [7].

604 Print S9669, 1 September 2000 at [2] (Guidice P, Munro J and Leary C).

605 Ibid at [7] (Guidice P, Munro J and Leary C)..

606 Annual Wage Review 2014-15 [2015] FWCFB 3500 at [88]–[89].

607 Annual Wage Review 2018-19 [2019] FWCFB 3500 at [12].

608 AWU submission in reply, 2 July 2021 at [7]–[8].

609 AFPA Closing Submissions on the evidence at [33]

610 [2018] FCA 1034.

611 Ibid at [30]–[34].

612 Schedules E–G relate respectively to time off instead of payment for overtime, annual leave in advance and cash out of annual leave.

613 Note that the CB does not include the attached email.

614 This exhibit was originally marked as AFPA 1 (see Transcript, 15 July 2021 at PN1503), but subsequently marked as AFPA 4 (see Transcript, 16 July 2021 at PN3620-3625).

615 Although there were no corrections to this witness’s statement, the witness did provide a ‘note’ in respect of paragraphs [13] and [32](a) of his statement as follows: ‘So basically paragraph 13 (indistinct) they work roughly nine hours a day. However, we give our workers the freedom to start and stop and choose their own breaks. So they could work nine hours a day or they could work six hours a day, based on their personal preference and they're meeting their goals.’

Re Horticulture Award 2020