[[
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
VICE PRESIDENT CATANZARITI
COMMISSIONER RIORDAN MELBOURNE, 29 JULY 2021
Horticulture Award 2020 – application to vary an award – background paper published –
further directions
[1] In a Statement issued on 26 July 2021,1 interested parties were directed to file a
written Aide Memoire by no later than 12noon (AEST), Thursday 29 July 2021. The Aide
Memoire was to:
direct the Full Bench to the evidence upon which the interested party will rely
during the course of closing oral submissions, and
include the party’s short written answers in response to the questions set out in the
Background paper and any comments on the two Information Notes set out at [7] of
the Statement.
[2] The following parties filed an Aide Memoire:
Australian Workers’ Union (AWU)
United Workers’ Union (UWU)
Australian Fresh Produce Alliance (AFPA)
National Farmers Federation (NFF)
Australian Industry Group (Ai Group)
1 [2021] FWCFB 4486.
[2021] FWCFB 4584
STATEMENT
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-aide-memoire-aigroup-290721.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-aide-memoire-nff-290721.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-aide-memoire-afpa-290721.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-aide-memoire-uwu-290721.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-aide-memoire-awu-290721.pdf
[2021] FWCFB 4584
2
[3] The attached document summarises the parties’ responses to the questions set out in
the Background Paper published on 26 July 2021 (Attachment A).
[4] An Additional Information Note on the piece rate data from Messrs McClintock and
Kelly has been published today.
[5] The matter is listed for hearing at 9.30AM (AEST), Friday 30 July 2021. During the
course of the oral hearing parties are invited to comment on the Additional Information Note
and the Information Notes published on Monday, 26 July 2021:
Information Note – Comparison of location data – NFF Survey and ABARES
Information Note – Piece rate data – Anthony Kelly and Brent McClintock
[6] There are five other matters we wish the parties to address at the commencement of
the hearing tomorrow.
1. Dr Howe’s Evidence – Proposed findings as to the level of piece rates
[7] The UWU asked Dr Howe to provide a statement in relation to the proposed variation
application to the Horticulture Award 2020 (AM2020/104) (the First Statement).2
[8] The AFPA engaged Mr Greg Houston to prepare an expert report (the First Houston
Report),3 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.4
[9] Dr Howe provided a statement in response to the First Houston Report (the Howe
Reply)5 and Mr Houston provided a reply to the Howe Reply (the Houston Reply).6
[10] At [19] of her 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]
[11] At [6] of her 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
2 Exhibit UWU7, Witness Statement of Dr Joanna Howe.
3 Exhibit AFPA6, Expert Report of Greg Houston.
4 Exhibit AFPA6, Expert Report of Greg Houston at [148] – [177].
5 Exhibit UWU8, Reply Witness Statement of Dr Joanna Howe.
6 Exhibit AFPA7, Expert Report in Reply of Greg Houston.
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-info-note-piece-rates-230721.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-info-note-comparison-230721.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-info-note-piece-rates-280721.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-background-paper-260721.pdf
[2021] FWCFB 4584
3
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.’
[12] The finding at [19] of Dr Howe’s First Statement was the focal point of the challenge
to Dr Howe’s evidence.
[13] At [155] to [157] of the First Houston Report Mr Houston addresses the finding at [19]
of Dr Howe’s 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]
[14] Research Report JH-1 is the report Towards A Durable Future: Tackling Labour
Challenges in the Australian Horticulture Industry. It was the basis of a three-year national
study into the conditions of work in the horticulture industry. The study was funded by
industry and commissioned by VegetablesWA and was undertaken by an interdisciplinary
research team consisting of five scholars across two universities. Dr Howe was the project
leader on the study and the lead author on the final report.
[15] 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]
[16] 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.’
Question for the UWU: In a recent decision7 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:
7 4 yearly review of modern awards – Social, Community, Home Care and Disability Services Award 2010 [2021] FWCFB
2383.
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4
‘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:8
‘the bare ipse dixit of a scientist, however eminent, upon the issue in controversy,
will normally carry little weight, for it cannot be tested by cross-examination
nor independently appraised, and the parties have invoked the decision of a
judicial tribunal and not an oracular pronouncement by an expert.’9
Why should Dr Howe’s opinion in [19] of the Howe Reply be treated any differently?
[17] At [20] of the Howe Reply, Dr Howe states:
‘However, in order to fully respond to the HoustonKemp report’s claim that there is no evidence
to support my conclusion that workers on piece rates are generally paid well below the Award
minimum rates, generally earning less than $15 an hour, I now turn to a detailed summary of
the findings and data from the research team’s three-year inquiry in relation to piece rates.’
[18] Dr Howe then sets out a summary of the findings and data from the Phase 2 semi-
structured interviews conducted as part of the Durable Future research project.10
[19] At [51] of the Houston Reply Mr Houston says:
‘Dr Howe’s response does not cause me to alter the opinions I express in para 155-157 of my
first expert report has not changed after reviewing Dr Howe’s report. My reasoning is that:
a. Dr Howe’s reply report confirms that her opinion is based on outcomes of interviews
and focus groups – it follows that the evidence Dr Howe seeks to rely on is qualitative
in nature and so cannot be used to draw quantitative conclusions with any degree of
statistical confidence;
b. the extracts presented by Dr Howe indicate that the vast majority of responses on low
hourly earnings from piece rates are from working holiday makers (WHMs) which,
alone, are not representative of the horticultural workforce. I note that:
i. of the 30 extract responses on low earnings from piece rates, 28 are from
WHM interviews or focus groups; and
ii. of the 28 responses from WHMs, six did not contain information on hourly
earnings from piece rates.
c. furthermore, participation in the interviews and focus groups is likely to suffer from
self-selection bias, where those WHMs that do participate in the interviews/focus
group are different to those who have not participated – for example, dissatisfied
workers, including those that are underpaid, would be more likely to participate in the
interviews and focus groups.’ [Emphasis added, footnotes omitted]
8 [1953] SC 34 at [40] per Lord President Cooper.
9 4 yearly review of modern awards – Social, Community, Home Care and Disability Services Award 2010 [2021] FWCFB
2383 at [172].
10 See Exhibit UWU8, Reply Witness Statement of Dr Joanna Howe at [21]-[28].
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5
[20] The AFPA submits that Dr Howe’s finding at [19] of her First Statement ‘is not valid
and has no probative value.’
Question for the AFPA: In relation to the qualitative data summarised at [21] to [28] of the
Howe Reply Statement, on what basis is it said that this data has no probative value?
2. Conclusions to be drawn from Dr Underhill’s Research
[21] The AWU asked Dr Underhill to provide a written report providing her opinions on
the composition of the workforce in the horticulture industry and the average earnings of
employees engaged as pieceworkers in the horticulture industry (Underhill Report).11
[22] The Underhill Report states that Research Project 1 found piece rate workers earned,
on average, significantly less than hourly paid employees.12 A similar pattern was found in
Research Project 2.13
[23] As mentioned earlier, the AFPA engaged Mr Houston to prepare an expert report that
reviewed and critiqued the Underhill Report. Mr Houston’s analysis of the Underhill Report is
set out in section 2 of the First Houston Report.
[24] Dr Underhill provided a statement in response to the First Houston Report (Underhill
Reply). The Houston Reply Statement includes Mr Houston’s reply to the Underhill Reply.
[25] The AWU contends that the evidence shows pieceworkers in the horticulture industry
‘commonly earning hourly rates well below the minimum hourly rate prescribed by the
Award for the type of employment and classification level.’14
[26] The AWU accepts that Dr Underhill’s research targeted a particular segment of the
horticulture workforce (WHM picking workers in ‘picking regions’) and that approximately
90% of the respondents were WHMs.15 Further, at [28] of the Underhill Reply, Dr Underhill
says:
‘The publications based on our two surveys do not claim to be representative of the entire
population of horticultural workers.’16
[27] In his critique of Dr Underhill’s survey methodology Mr Houston’s principal
observations are that:17
11 Exhibit UWU16, Report of Dr Underhill.
12 Exhibit AWU16, Report of Dr Underhill at [24] and Table 3.
13 Exhibit AWU16, Report of Dr Underhill at [26] and Table 4.
14 AWU closing submission, 26 July 2021 at [2(c)].
15 AWU closing submission, 26 July 2021 at [51].
16 Exhibit AWU17, Reply Report of Dr Underhill at [28]; also see Transcript, 15 July 2021 at PN1341.
17 Exhibit AFPA6, Expert Report of Greg Houston at [32].
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6
the sampling methodology results in a non-representative sample, undermining its
ability to generalise findings to horticulture workers in Australia, and
the research suffers from self-response bias.
[28] At [35] of the Houston Reply Report (addressing Dr Underhill’s reply) Mr Houston
states:
‘the presently available data can only properly be described as presenting pay outcomes for
WHM workers, and cannot be extrapolated to a wider population of all horticultural workers,
of which WHMs are only a subset.’
[29] At [50] of its closing submissions the AWU submits:
‘In cross-examination, Mr Houston confirmed that in his reports he was not criticising the
studies undertaken by Dr Underhill or the conclusions and opinions drawn in those studies, but
rather was critical of her drawing conclusions having regard to those studies that he described
as being “much broader than the conclusions in the studies themselves”. Ultimately, the
primary criticism made by Mr Houston of Dr Underhill’s conclusions was that the research
projects were directed at WHMs in particular, rather than the horticulture workforce as a whole
and, for that reason, might not be representatively of the workforce as a whole.’ [Footnotes
omitted]
[30] The AWU submits that it is not necessary for the Commission ‘to make a specific
finding of fact that the mean or median hourly rate dollar figures calculated for pieceworkers
by Dr Underhill and found in table 3 of Exhibit AWU16 and Table 4 of Exhibit AWU17 or in
Exhibit AWU28 are in fact reflective of the entire population of the horticulture industry in
Australia.’18
[31] The AFPA contends that it is open to the Commission to find that some employers in
the industry set their piece rates and/or time rates at inappropriately low levels or otherwise
underpay their workers. But it is not open to make any findings as to what proportion of
employers do so.19
Question for the AFPA: No party contends that Dr Underhill’s survey results can be
extrapolated to the wider population of all horticultural workers. Does the AFPA accept that
Dr Underhill’s survey results can be taken as presenting pay outcomes for WHM workers, as
suggested by Mr Houston?
3. Agricultural visas and the UK Free Trade Agreement
[32] The Statements of Ms Tan20 and Ms Ablett21 attach media releases, media articles and
media interviews regarding a proposed agricultural visa and the UK Free Trade Agreement.
[33] At [16] of its closing submission the AFPA submits:
18 AWU closing submission, 26 July 2021 at [52].
19 AFPA closing submission, 26 July 2021 at [27(b)].
20 Exhibit AFPA5, Witness Statement of Elizabeth Tan.
21 Exhibit UWU9, Witness Statement of Lyndal Ablett.
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7
‘It is difficult to predict how long the pandemic-related travel restrictions (and travel reduction
more generally) will continue. However, there is no reason to expect WHM numbers to return
to pre-pandemic levels in the near future, or at all.’ [Footnotes omitted]
[34] The footnote cited in support of this submission states:
‘Including because of the proposal to introduce an agri-visa the details of which are not yet
known and the impending abolition of the 88-day requirement as part of the UK-Australia free
trade agreement: Statement of Elizabeth Tan dated 19 July 2021 (AFPA-5).’
Question for the UWU: What does the UWU put in reply to [16] of the AFPA closing
submission?
[35] At [61] of its closing submission the UWU submits:
‘The fact that certain federal politicians have made public statements to the effect that there may
be, in the future, a new kind of ‘agriculture visa’ is irrelevant to the issues for determination in
this application. Counsel for the AFPA stated that the AFPA would “not be submitting that the
Commission should presume that the agricultural visa will be implemented, or implemented at
a particular time, or that it will have any particular – or that its protections in terms of labour
regulation will mirror the protections that are in the Seasonal Workers Program…”. Given
those limitations, it is clear that no weight can attach to any submission that the current
workforce may look different in the future, if a series of unspecific and unknown events take
place, and it would be wrong for the FWC to take any such matters into account in deciding
whether to vary the Horticulture Award.’ [Footnotes omitted]
Question for the AFPA: What does the AFPA put in reply to [61] of the UWU’s closing
submission?
Question for all parties: What findings are proposed on the basis of the material attached to
the statements of Ms Tan and Ms Ablett?
4. Alternate Variations
4.1 Clause 15.2(b)
[36] The AFPA submits that:22
1. The ‘logical consequence’ of the proposed variation would be that the 15% uplift
for pieceworkers should be removed. The AFPA submits that the uplift is
justified by the absence of a guaranteed hourly rate for pieceworkers as,:
‘The requirement that an average competent pieceworker earn more than a timeworker
doing the same work is the quid pro quo for the risk of earning less than the
timeworker if the pieceworker underperforms. This is the risk-reward bargain. If
pieceworkers are to be guaranteed the same hourly earnings as timeworkers, the main
downside of piecework is removed and the upside is with the pieceworker — the
opportunity to earn more than a timeworker. It is then difficult to see what
22 AFPA submission, 11 June 2021 at [27]-[33].
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8
justification would remain for requiring the piecework rate to be set so that the
average competent pieceworker earns more than the time worker performing the same
work. Hence, the 15% uplift would no longer be “necessary to achieve the modern
awards objective”.’23
The AFPA submits that if pieceworkers are to be guaranteed the hourly rates of
timeworkers but also retain the benefit of clause 15.2(b), this would make the
pieceworker mode of engagement unattractive for employers,:
‘This is because an employer engaging someone as a pieceworker would then face the
double whammy of both the minimum hourly rates and the Uplift Term. In contrast, if
the employer were to engage someone as a timeworker, they can avoid the Uplift
Term but can still incentivise high productivity by paying unregulated above-award
performance-based bonuses.’24
2. It is said to follow that the practical effect of the variation would be to abolish the
piece-work safety net and replace it with a safety net based on hourly rates. This
is because clause 15.2(b) would no longer be “necessary” to maintain a fair and
effective safety net. The uplift would have to go and the piecework provisions
would then no longer provide any additional earnings for pieceworkers.
[37] In reply, the UWU submits that the AFPA’s submission that if the Application was
granted then the ‘logical consequence…would be that the 15% uplift for pieceworkers should
be removed…’ should be disregarded:
‘There is no application to remove the "15% uplift" provided for in clause 15.2 and no reason to
remove this incentive if a minimum rates floor were introduced.’25
[38] The Application does not seek to remove the 15% uplift for pieceworkers in clause
15.2(b); but the Commission is not required to make a decision in relation to an application in
the terms applied for (s.599 of the Act) and the AFPA contends that if the Application is
granted then the 15% uplift is no longer ‘necessary’ within the meaning on s.138.
Question for the Union Parties: In the event that the Application is granted why should the
15% uplift be maintained? Has an ‘uplift factor’ been provided in any other instance where
pieceworkers are guaranteed a minimum hourly rate?
Question for all parties: If the 15% uplift factor is removed from clause 15.2(b) should the
Horticulture Award retain the capacity for an employer and employee to enter into a
piecework agreement?
4.2 AFPA Alternate Variation
[39] In its initial submission, the AFPA proposed an alternative variation if the
Commission were to form the view that the current piecework provisions need to be varied.
That alternative variation was said to be designed to ‘preserve the concept of a piecework-
23 AFPA submission, 11 June 2021 at [27].
24 AFPA submission, 11 June 2021 at [28].
25 UWU submission in reply, 5 July 2021 at [28].
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9
based safety net with an uplift of earnings for competent pieceworkers compared to
timeworkers, but provide additional implementation machinery to support the transparent and
consistent application of piecework rates.’ Appendix D to the AFPA’s closing submissions
now sets out a draft of this proposal (see Attachment B to this Statement).
[40] AFPA submits that, if the Commission finds it necessary to consider AFPA’s
proposal, it should find that the proposal is likely to:
make it easier for growers to correctly set piece rates;
make it easier for workers, unions and the FWO to enforce the Uplift Term;
increase the earnings of pieceworkers who are currently paid less than the minimum
hourly rate; and
largely avoid the adverse consequences of the AWU’s proposed variation set out in
the previous section of this submission.
Question for all other parties: What do you say about the AFPA’s proposed alternate
variation?
5. Research Reference List
[41] On 7 July 2021 the Commission published a Research Reference List. This was
subsequently updated on 21 July 2021.
[42] At [41] of its closing submission the AFPA states:
‘Some of the sources in the FWC Reference List are not in evidence. These sources should not
be used to make any findings of fact.’
Question for the AFPA: Which sources in the Research Reference List are said to not be in
evidence?
PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR732258
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-reference-list-210721.pdf
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ATTACHMENT A
PARTY RESPONSES TO QUESTIONS FROM BACKGROUND PAPER
Q1: Is it common ground that neither the Horticulture Award nor the Act and Regulations
require an employer to keep a record of hours worked by a pieceworker?
[1] It is common ground that neither the Horticulture Award, nor the Act and Regulations
require an employer to keep a record of hours worked by a pieceworker.26
Q2: Are any of the observations at [9] to [14] contested?
[2] No party contested the observations at [9] to [14] of the Background Paper.27
Q3: Does any party contest the proposition at [16]?
[3] No party contested the proposition at [16] of the Background Paper.28
Q4: What does the AWU say about the AFPA submission regarding National Retail
Association v FWC?
[4] The AWU submits that the decision in National Retail Association v FWC29 is ‘of
limited assistance in the present matter’, for three reasons:30
1. It is not apparent that there was any contest between the parties as to whether the
minimum wages objective applied.
2. The issue arose in the context of Item 6(4) of the Transitional Provisions
legislation which provided that the minimum wages objective applied if the
variation ‘relates to’ modern award minimum wages. The language of ss 157(2)
and 284(2)(b) of the Act is different.
3. The application in National Retail Association v FWC sought to change the rates
applicable to the work of 20 year old employees. The present application does not
seek to alter the rates of minimum wages in clause 15.1 or 15.3 or the level by
reference to which any piecework rate is required to be set in clause 15.2(b). It is
not equivalent.
26 AFPA Aide Memoire, 29 July 2021 at [1]; AWU Aide Memoire, 29 July 2021 at [4]; UWU Aide Memoire, 29 July 2021 at
[3], Q1; Ai Group Aide Memoire, 29 July 2021 at [3]-[4]; NFF Aide Memoire, 29 July 2021 at [3].
27 AFPA Aide Memoire, 29 July 2021 at [2]; AWU Aide Memoire, 29 July 2021 at [6]; UWU Aide Memoire, 29 July 2021 at
[3], Q2; Ai Group Aide Memoire, 29 July 2021 at [5]; NFF Aide Memoire, 29 July 2021 at [4].
28 AFPA Aide Memoire, 29 July 2021 at [3]; AWU Aide Memoire, 29 July 2021 at [7]; UWU Aide Memoire, 29 July 2021 at
[3], Q3; Ai Group Aide Memoire, 29 July 2021 at [6]; NFF Aide Memoire, 29 July 2021 at [5]-[7].
29 (2014) 225 FCR 154.
30 AWU Aide Memoire, 29 July 2021 at [8]-[12].
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11
Q5: If the minimum wage objective is enlivened by the Application what do the parties say
about the matters set out at s.284(1)(a) to (e)?
[5] The AWU submits that:
‘In relation to the matters set out in s 284(1)(a) to (e), the AWU responds as follows. The
matters in subparagraphs (b), (c) and (d) are identical to the matters identified in s 134(1)(a),
(c) and (e) and the matter in subparagraph (e) does not appear to be relevant. The matter
identified in subparagraph (a) is “the performance and competitiveness of the national
economy, including business competitiveness and viabilitiy, inflation and economic growth.”
Although not identical in its wording, that matter appears to overlap very significantly with the
matter raised in s 134(1)(h). In any event, there is no evidence that has been advanced to
suggest, much less demonstrate, that the variation sought would have any appreciable impact
on the performance and competitiveness of the national economy in aggregate.’31
[6] The UWU confirmed that it would address this question during the course of oral
closing submissions.32
[7] The AFPA submits that:33
‘The factual effects of the AWU’s proposed variation set out in section A.9 of AFPA’s closing
submission dated 26 July 2021 can be linked to the factors in ss 284(1) and 134(1) as follows:
a) Increased costs to business and reduction in the workforce (as underperforming
employees are culled and more automation is introduced) will reduce the performance
and competitiveness of the national economy, including productivity, business
competitiveness and viability, will hinder employment growth, and will adversely
impact businesses, raise employment costs and increase inflation (as some of the
labour costs increases are passed on to consumers) (ss 284(1)(a), 134(1)(f), 134(1)(h)).
b) The reduction in the workforce (as underperforming employees are culled and more
automation is introduced) will reduce social inclusion through reduced workforce
participation (ss 284(1)(b) and 134(1)(c)).
c) The relative living standards and needs of the low paid will be positively affected
for some workers (those that will earn increased remuneration) and negatively affected
for others (those that can no longer find work in the industry or can no longer work on
piece rates with a guaranteed 15% uplift as some employers switch to using a
timework mode of engagement with unregulated above-Award performance bonuses)
(ss 284(1)(c) and 134(1)(a)).
d) Performance of work will become less efficient and productive as some cohorts of
employees will be de-motivated (s 134(1)(d)).
e) The issues with the vagueness and subjectivity of the concept of average competent
employee in clause 15.2 about which the Union Parties complain will remain
unremedied (s 134(1)(g)).
31 AWU Aide Memoire, 29 July 2021 at [13].
32 UWU Aide Memoire, 29 July 2021 at [3], Q5.
33 AFPA Aide Memoire, 29 July 2021 at [5]-[6].
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The other factors in ss 284(1) and 134(1) will not be materially engaged by the proposed
variation.’
[8] The NFF submits that ‘certain of the considerations in section 284 are similar to those
the Commission is required to consider in section 134, of the FW Act, and in particular sub-
section 134(1)(a), (c) and (e)’ and adopts the AFPA’s submission on this point.34
[9] Ai Group relies on [86] of its submissions of 1 June 2021.35
Q6: Does any party contest the UWU’s submission regarding the key principles to draw
from Hu (No 2) and the Hu Appeal (set out at [57] and [58] above)?
[10] No party, other than Ai Group, contested the UWU’s submission regarding these key
principles.36
[11] Ai Group submitted that:
‘Point 5 of paragraph [57] of the Background Paper states:
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 competent
employees.
Consistent with paragraph [31] of Rangiah J’s Decision in Hu (No 2), the average competent
employee is selected from the pool of hypothetical competent employees.
Point 6(iii) of paragraph [57] of the Background Paper states that the relevant factors used in
determining what a hypothetical employee will be able to earn include the general level of
experience of the available workforce considered as a whole.
As stated in paragraph [34] of Rangiah J’s decision in Hu (No 2), the assessment of the
average competent employee must be made by reference to the workforce that is available or
potentially available to the employer.’37
Q7: Does any party contest the summary at [60] and [61]?
[12] No party contested the summary at [60] and [61].38
Q8: Interested parties are invited to confirm that the summary of their submission is
accurate, or, if not, to identify any correction or additions.
34 NFF Aide Memoire, 29 July 2021 at [9]-[10].
35 Ai Group Aide Memoire, 29 July 2021 at [8].
36 AFPA Aide Memoire, 29 July 2021 at [7]; AWU Aide Memoire, 29 July 2021 at [14]; NFF Aide Memoire, 29 July 2021 at
[11].
37 Ai Group Aide Memoire, 29 July 2021 at [9]-[12].
38 AFPA Aide Memoire, 29 July 2021 at [8]; AWU Aide Memoire, 29 July 2021 at [15]; UWU Aide Memoire, 29 July 2021
at [3], Q7; Ai Group Aide Memoire, 29 July 2021 at [13]; NFF Aide Memoire, 29 July 2021 at [12]-[13].
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[13] No party, other than the NFF, identified any inaccuracies in the summary, or sought
any corrections or additions.
[14] The NFF repeats its conclusions in paragraphs [8],[11]-[13], and [18]-[26] of the NFF
submission and adds that the Commission should be slow to add economic burdens to
employers such as those in the Horticulture industry, without a clear warrant to do so.39
Q9: What do the other employer organisations say about the AFPA’s alternate proposal?
[15] The NFF broadly supports the AFPA’s proposal, subject to some observations. The
NFF confirmed that it would speak to these observations during closing oral submissions.40
[16] Ai Group submits that the AFPA’s proposal is ‘unopposed to the extent that it
provides ‘implementation machinery’ to facilitate the proper application of the current
piecework provisions in the Horticulture Award’, but Ai Group does not consider that the
Commission has before it sufficient materials which would justify accepting any elements of
the proposal which impose additional obligations upon employers which are not currently
present in the Horticulture Award:
‘If the Commission is minded to give further consideration to any aspect of AFPA’s alternative
proposal in the future, Ai Group respectfully requests that the parties be given a further
opportunity to respond once any suggested amendment is further elaborated upon and
condensed into a draft variation.’41
Q10: Are any of the observations at [155]-[157] contested?
[17] No party contested the observations at [155]-[157] of the Background Paper.42
Q11: Does any party contest the proposition at [160]?
[18] No party contested the proposition at [160] of the Background Paper.43
[19] Ai Group also submits that ‘the pieceworker rates at cl. 15.2(b), for some
classifications, require the pieceworker agreement to enable the average competent employee
to earn a rate which exceeds the ‘low-paid’ thresholds referred to above.’44
Q12: Does any party contest the proposition at [171]?
[20] Other than the UWU, no party contested the proposition at [171] of the Background
Paper.45
39 NFF Aide Memoire, 29 July 2021 at [15].
40 NFF Aide Memoire, 29 July 2021 at [18].
41 Ai Group Aide Memoire, 29 July 2021 at [17].
42 AFPA Aide Memoire, 29 July 2021 at [11]; AWU Aide Memoire, 29 July 2021 at [18]; UWU Aide Memoire, 29 July
2021 at [3], Q10; NFF Aide Memoire, 29 July 2021 at [19]. Ai Group did not provide a response to this question.
43 AFPA Aide Memoire, 29 July 2021 at [160]; Ai Group Aide Memoire, 29 July 2021 at [18]; UWU Aide Memoire, 29 July
2021 at [3], Q11; NFF Aide Memoire, 29 July 2021 at [21]. The AWU did not provide a response to this question.
44 Ai Group Aide Memoire, 29 July 2021 at [19].
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[21] The UWU submits:
‘The focus of s 134(1)(c) is not so narrow as to be confined only to obtaining employment.
Social inclusion may also be promoted by assisting employees to remain in employment: Re
Four Yearly Review of Modern Awards – Family and Domestic Violence Leave (2018) 276 IR
1, [282].
Further, ‘social inclusion’ requires more than simply being employed: a job with inadequate
pay can create social exclusion if the income level limits the employee’s capacity to engage in
social, cultural, economic, and political life: Annual Wage Review 2015–2016 [2016] FWCFB
3500, [467].’46
Q13: Are any of the observations at [184] contested?
[22] No party contested the observations at [184] of the Background Paper.47
[23] The AWU did note however, that:
‘although the history of determination of the 15% figure in clause 15.2(b) of the Award is not
entirely clear, it is partly explained by the fact that clause 15.2(f) excluded pieceworkers from
hours of work, meal allowance and overtime provisions that would otherwise apply. That is
relevant to the contention advanced by the AFPA that the 15% target in clause 15.2(b) should
logically be removed if a minimum floor of rates in implemented.’48
Q14: Are the observations at [191] – [197] contested?
[24] The AWU submits that:
‘The first sentence in paragraph [191] suggests that “the exercise of modern award powers to
increase modern award minimum wages is likely to have a negative impact on business, by
increasing employment costs for those businesses that engage pieceworkers.” It is not clear
whether the sentence is intended to be a general statement with respect to any increase in
minimum wages. For the avoidance of doubt, however, the AWU does not accept that its
proposed variation will increase employment costs for businesses that engage pieceworkers. At
the very least, any substantial increase in employment costs should only occur if the business
is using piece rates which are not properly set in accordance with clause 15.2(b) of the
Award.’49
[25] The UWU confirmed that it did not contest the observations in [192]-[197], but would
seek to address [191] in its closing oral submissions.50
45 AFPA Aide Memoire, 29 July 2021 at [13]; AWU Aide Memoire, 29 July 2021 at [19]; Ai Group Aide Memoire, 29 July
2021 at [20]; NFF Aide Memoire, 29 July 2021 at [22].
46 UWU Aide Memoire, 29 July 2021 at [3], Q12.
47 AFPA Aide Memoire, 29 July 2021 at [14]; AWU Aide Memoire, 29 July 2021 at [20]; UWU Aide Memoire, 29 July
2021 at [3], Q13; Ai Group Aide Memoire, 29 July 2021 at [21]; NFF Aide Memoire, 29 July 2021 at [23].
48 AWU Aide Memoire, 29 July 2021 at [20].
49 AWU Aide Memoire, 29 July 2021 at [22].
50 UWU Aide Memoire, 29 July 2021 at [3], Q14.
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[26] AFPA does not agree that ‘the impact of an increase in modern award minimum wages
upon productivity is less clear’ and maintains its submission that ‘the change would reduce
the economic productivity of the sector (relevantly here, the amount of produce picked per
hour worked) by de-incentivising substantial parts of the workforce.’51 AFPA otherwise
agrees with the observations at [191] to [197] of the Background Paper.
[27] Ai Group and the NFF did not contest these observations.52
Q15: Are there any corrections or additions to the summary of the party submissions in
respect of the s.134 considerations at [161] to [217] above?
[28] The AWU made note of two considerations:
‘In relation to s 134(1)(b), the description of the submission of the AWU at paragraph [168] of
the Background Paper should reflect that the AWU submits that there is little incentive for
employers to engage in collective bargaining in circumstances in which the piecework
arrangements permit employees to drive down labour costs without engaging in bargaining and
that, for this reason, the proposed variation has the potential to encourage collective
bargaining: AWU Outline of Submissions at [27].
In relation to s 134(1)(da), the AWU does not submit this is merely a neutral as suggested at
paragraph [185] of the Background Paper. The AWU submits that the insertion of a
guaranteed minimum payment for pieceworkers will assist in ensuring that the pieceworker
rate provisions are only utilised for genuine piecework agreements which provide the capacity
for an employee to earn an income that will compensate for other benefits foregone, including
with respect to overtime, unsocial, irregular or unpredictable hours and weekend or public
holiday work: AWU Outline of Submissions at [32].’53
[29] The UWU confirmed that it had no corrections but would seek to address the s 134(1)
considerations in closing oral submissions.54
[30] The AFPA referred to its responses to question 5 and 14 above.55
[31] The NFF had no further corrections to additions.56
[32] Ai Group submitted that:
‘At paragraph [182] of the Background Paper, it states that Ai Group rejects the UWU’s
submissions that complying with clause 15.2(b) is onerous. Ai Group comments on the
complexity of determining the correct piece rate under cl. 15.2(b) of the Horticulture Award at
paragraphs [58] – [61] of our 1 June 2021 submission.
51 AFPA Aide Memoire, 29 July 2021 at [15]-[16].
52 Ai Group Aide Memoire, 29 July 2021 at [22]; NFF Aide Memoire, 29 July 2021 at [24].
53 AWU Aide Memoire, 29 July 2021 at [23]-[24].
54 UWU Aide Memoire, 29 July 2021 at [3], Q15.
55 AFPA Aide Memoire, 29 July 2021 at [17].
56 NFF Aide Memoire, 29 July 2021 at [25].
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Ai Group takes the view that the unions’ proposed variations would not remove any of the
complexities or difficulties involved in applying cl 15.2(b).’57
57 Ai Group Aide Memoire, 29 July 2021 at [23]-[24].
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ATTACHMENT B
DRAFT CLAUSE 15.2 IMPLEMENTING AFPA’S PROPOSED ALTERNATIVE
VARIATION
15.2 Piecework 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) Subject to clause 15.2(n), all work performed in accordance with the piecework
agreement must be paid at the piecework rate fixed by that agreement or the minimum
piecework rate calculated in accordance with clause 15.2(k) (whichever is higher).
c) The calculation of the minimum piecework rate in clause 15.2(k) for casual employees
will include the casual loading prescribed in clause 11.3(a).
d) Subject to clause 15.2(n), 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.
h) The employer must give the individual employee a copy of the piecework agreement
and keep it as a time and wages record.
i) 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.
j) For the purposes of the NES:
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i. The base rate of pay for a pieceworker is the base rate of pay as defined in the
NES.
ii. The full rate of pay for a pieceworker is the full rate of pay as defined in the
NES.
k) Each pay period, the employer must, for each group of pieceworkers performing a
particular piecework task specified in the piecework agreement, calculate the minimum
piecework rate for that task in that pay period in accordance with the following steps:
i. calculate:
the total output of the competent pieceworkers in the group in the pay
period (Total Competent Output); and
the total combined hours of work of the competent pieceworkers in the
group during the pay period (Total Competent Hours);
ii. divide the Total Competent Output by Total Competent Hours to obtain the
Average Hourly Output of a Competent Worker;
iii. take the applicable minimum hourly rate, add 15% and then divide by the
Average Hourly Output of a Competent Worker.
l) A competent pieceworker for the purposes of this clause is an employee who, in the
reasonable opinion of the employer, is suitable, sufficient or adequate to perform the
task or tasks assigned to the relevant group. An employee is deemed to be competent at
a particular task or set of tasks after he or she has been performing these task(s) for 20
working days.
m) In calculating the piecework pay under this clause for an employee who is not yet
competent, the employer must pay the employee on the basis of their actual output or
the average rate of output of the slowest competent worker in the group during the pay
period, whichever is higher.
n) If an employer requires a pieceworker to perform work that does not yield any
piecework output and is not an inherent part of the agreed piecework:
i. the time spent performing this work is to be excluded for the purposes of all
calculations under this clause; and
ii. the employer must pay the employee at the applicable minimum hourly rates for
this work.
o) The employer must keep a record of the following:
i. the groups of employees (including the composition of the group and the tasks
assigned to the group);
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ii. the hours worked by all pieceworkers; and
iii. the calculations required by clauses 15.2(k) and 15.2(m).
