Application by The Australian Workers' Union to vary clause 15 of the Horticulture Award 2020 - [2021] FWC 3838

1

Fair Work Act 2009 
s.158—Application to vary or revoke a modern award

Horticulture Award 2020
(AM2020/104)

Agricultural industry

JUSTICE ROSS, PRESIDENT MELBOURNE, 2 JULY 2021

Horticulture Award 2020 – application to vary an award

1. Background

[1] On 16 December 2020, the Australian Workers’ Union (AWU) made an application to 
vary the Horticulture Award 2020 (the Horticulture Award). The application was published 
on the Commission’s website on the same day. A separate webpage was established for the 
matter and subscribers to the Horticulture Award were notified of the application.

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

[3] On 4 March 2021 the Commission received correspondence from the AWU seeking to 
extend the filing dates. The request was granted and amended directions were issued on 5 
March 2021.2

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

AWU

 Submissions

 Expert report from Dr Elsa Underhill with 20 attachments3

 Affidavit from Thomas Costa4

                                               
1 [2021] FWC 952.
2 [2021] FWC 1213.
3 Page 48.
4 Page 1965.

[2021] FWC 3838

STATEMENT


E AUSTRALIA FairWork Commission




 

https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/2021fwc1213.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/2021fwc952.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-awu-190321.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/2021fwc1213.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-corr-awu-040321.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/2021fwc952.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-corr-awu-17022021.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-dir-181220.pdf
https://www.fwc.gov.au/documents/awardmod/variations/2020/am2020104-application-awu-151220.pdf


[2021] FWC 3838

2

 Statement from Anthony Beven5

 Statement from Darren Cameron6

 Statement from Philip Gourlay7

 Statement from Ron Cowdrey8

 Statement from Shane Roulstone9

 Statement from Steve Carter10

 Statement from Suliman Ali.11

UWU

 Submissions

 Witness statement of Dr Joanna Howe12

 Witness statement of Mr George Robertson13

 Witness statement of Mr Rodney Noel McDonald14

 Witness statement of ‘Witness 1’.

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

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

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

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

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

                                               
5 Page 1896.
6 Page 1919.
7 Page 2071.
8 Page 2067.
9 Page 2077.
10 Page 1922.
11 Page 1852.
12 Page 27.
13 Page 315.
14 Page 328.
15 [2021] FWC 1593.






https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/2021fwc1593.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2021/am2020104-dirs-270521.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-corr-nff-260521.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/2021fwc1593.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-uwu-190321.pdf


[2021] FWC 3838

3

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

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

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

 Australian Council of Social Service (30 March 2021)

 Victorian Government (11 April 2021)

 West Australian Government (25 May 2021)

 Uniting Church in Australia (10 June 2021)

 88 Days and Counting (11 June 2021)

[9] The Commission received the submissions opposing the AWU’s application from the 
following interested parties:

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

 Fruit Growers Tasmania (28 May 2021)

 Ai Group (2 June 2021)

 Lucaston Park Orchards (10 June 2021)

 AFPA (11 June 2021):

 Submissions

 Witness Statement of Mr Nicolas King

 Expert Report of Mr Greg Houston

 NFF (11 June 2021):

 Submissions

 Witness Statement of Mr Anthony (Tony) Kelly

 Witness Statement of Mr Ben Rogers

 Witness Statement of Mr Brent McClintock

 Witness Statement of Mr Glenn Trewin

 Witness Statement of Mr Guy Gaeta

 Witness Statement of Mr Han Shiong Siah

 Witness Statement of Mr Jonathan Moss

 Witness Statement of Mr Leleiga Fetui

 Witness Statement of Mr Matthew Benham

 Witness Statement of Mr Reginald John Brown

 Witness Statement of Mr Richard Eckersley

 Witness Statement of Ms Akata Uata

 Witness Statement of Ms Anne Reardon

 Witness Statement of Ms Christine (Rein) Silverstein






https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-ws-cs-nff-110621-redacted.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-ws-ar-nff-110621-redacted.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-ws-au-nff-110621-redacted.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-ws-re-nff-110621-redacted.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-ws-rb-nff-110621-redacted.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-ws-mb-nff-110621-redacted.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-ws-lf-nff-110621-redacted.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-ws-jm-nff-110621-redacted.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-ws-hs-nff-110621-redacted.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-ws-gg-nff-110621-redacted.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-ws-gt-nff-110621-redacted.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-ws-bm-nff-110621-redacted.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-ws-br-nff-110621.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-ws-ak-nff-110621-redacted.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-nff-110621.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-expert-report-afpa-110621.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-ws-nj-afpa-110621.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-afpa-110621.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-inreply-lpo-100621.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-aig-020621.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-fgt-280521.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-pfc-210521.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-88dc-110621.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-inreply-uca-100621.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-corr-mir-mrdaf-250521.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-corr-vic-gov-130421.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-acss-010421.pdf


[2021] FWC 3838

4

 Witness Statement of Ms Michelle Distill

[10] On 2 July the Commission received submissions and evidence in reply from the AWU 
as follows:

 Submissions

 Reply Statement of Anthony Beven

 Reply Statement of Steven Carter

 Further Affidavit of Thomas Costa

 Witness Statement of Hsu

 Witness Statement of Chee Sing Ee

 Witness Statement of Xueliang Wang

 Reply Report from Dr Elsa Underhill with 5 attachments.

[11] On 2 July the Commission received correspondence from the UWU seeking an 
extension to file submissions and evidence in support of the AWU application. The extension 
was granted, and the UWU was given until 12noon on Monday, 5 July 2021 to file 
submissions and evidence. Notwithstanding, the Commission received the following witness 
statements from the UWU on the same day:

 Further Witness Statement of Rodney McDonald

 Witness Statement of Lachlan Wakefield

 Witness Statement of Niko Karhu

[12] On 29 June, the Commission received a series of applications from the AWU for 
orders for production of documents, records or information. The AWU sought orders for 
production from the following witnesses:

NFF witnesses:

 Anne Reardon

 Anthony Kelly

 Brent McClintock

 Catherine Silverstein

 Gaetano Gaeta

 Glenn Trewin

 Han Shiong Siah

 Jonathan Moss

 Leleiga Fetui

 Matthew Benham

 Michelle Distill

 Reginald Brown

 Richard Eckersley






https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-app-f52-nff-290621.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-ws-nk-uwu-020721.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-ws-lw-uwu-020721.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-ws-rm-uwu-020721.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020103-corr-uwu-inreply-fwc-020721.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-reportreply-underhill-020721.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-statement-wang-020721.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-statement-chee-020721.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-statement-hsu-020721.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-affadavit-costa-020721.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-replystatement-carter-020721.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-replystatement-beven-020721.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-subinreply-awu-020721.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-ws-md-nff-110621-redacted.pdf


[2021] FWC 3838

5

AFPA witness:

 Nicholas King

Fruit Growers Tasmania Inc. witness:

 Peter Cornish

Lucaston Park Orchards witness:

 Andrew Griggs

[13] With two exceptions, the applications sought the following documents from the 
witnesses regarding their respective workplaces:

 Pay slips or other pay records

 Any documents recording the hours and/or days of work

 Any documents recording the average hourly earnings, and

 Any documents recording the assessment or monitoring of piece rates paid.

[14] The two exceptions were:

 The application concerning Mr Leleiga Fetui only sought pay slips or other pay 
records for worked he performed at Silver Orchards from 4 October 2020 to 2 May 
2021. 

 The application concerning Mr Peter Cornish sought copies of the documentary 
evidence relied upon for the statement ‘Tasmanian season fruit pickers consistently 
earn well above 15% more than the minimum hourly rate’. 

2. Next steps

[15] Any party opposing the application for a confidentiality order referred to at [5] above 
is to file a short written submission in support of its position by no later than 4PM (AEST), 
Tuesday 6 July 2021. 

[16] Any party opposing any of the applications for orders to produce referred to at [11] –
[13] above is to file a short written submission by no later than 4PM (AEST), Tuesday 6 
July 2021.

[17] A Mention is listed for 7 July 2021. The purpose of the mention is to discuss the 
scheduling of witness evidence. Interested parties are to file a short note addressing the
following matters by no later than 4PM (AEST), Tuesday 6 July 2021:

 which witnesses will be required for cross-examination

 how long the cross examination of each witness is expected to take, and






https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-app-f52-lpo-290621.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-app-f52-fgt-290621.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-app-f52-afpa-290621.pdf


[2021] FWC 3838

6

 any witness availability issues. 

[18] Interested parties are encouraged to subscribe to receive notifications on the 
subscription services page of the Commission’s website. Any questions about the subscription 
service can be sent to amod@fwc.gov.au.

PRESIDENT

Printed by authority of the Commonwealth Government Printer
PR731272






mailto:amod@fwc.gov.au
https://aus01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.fwc.gov.au%2Fabout-us%2Freports-publications%2Fsubscribe-updates&data=01%7C01%7Clisac%40business-sa.com%7C59f136d15b63498626e508d818b86be3%7C57b2f444c56c43a68b76092cb16ac822%7C0&sdata=u6jpRDMiARFoA2QAoJ%2F6LUKAoTa4MRG2TuuJmAOU8JM%3D&reserved=0

Cases cited by this decision: