Application by The Australian Workers' Union to vary clause 15 of the Horticulture Award 2020 - [2021] FWCFB 5554

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, 3 NOVEMBER 2021

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

Contents

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]

[2021] FWCFB 5554

DECISION


AUSTRALIA FairWork Commission




 



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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








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WHM Working Holiday Maker








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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:

1 Fair Work Commission, Horticulture Award 2020, MA000028.






https://www.fwc.gov.au/documents/awardmod/variations/2020/am2020104-application-awu-151220.pdf


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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 submissions2 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. 

2 Excluding closing submissions, aide memoires and submissions in response to Statement [2021] FWCFB 4584.






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/am2020104-subinreply-awu-020721.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-closing-sub-awu-260721.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-aide-memoire-awu-290721.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-uwu-190321.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-inreply-uwu-050721.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-closing-sub-uwu-260721.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-corr-qg-270521.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-corr-mir-mrdaf-250521.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-acss-010421.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-sub-88dc-110621.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-closing-statement-88days-260721.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-closing-sub-afpa-260721.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-sub-afpa-300721.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-closing-sub-nff-260721.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-weight-evidence-nff-290721.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-aide-memoire-aigroup-290721.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-inreply-lpo-100621.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-background-paper-260721.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb4584.htm


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[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.






https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-background-paper-070721.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-info-note-070721.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-230721.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-reference-list-070721.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/130721-am2020104.htm
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/150721-am2020104.htm
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/160721-am2020104.htm
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/200721-am2020104.htm
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/300721-am2020104.htm


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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 

3 The material set out in this section was included in the Background Paper and no party contested any of the propositions in 
response to the legislative framework: See Australian Fresh Produce Alliance, ‘AFPA’s aide memoire’, Submission in 
Horticulture Award 2020, AM2020/104, 29 July 2021 at [2]–[3]; Australian Workers’ Union, ‘Aide Memoire of 
Australian Workers’ Union’, Submission in Horticulture Award 2020, AM2020/104, 29 July 2021 at [6]–[7]; United 
Workers Union, ‘United Workers Union: Aide Memoire’, Submission in Horticulture Award 2020, AM2020/104, 29 
July 2021 at [3], Q2, Q3; Australian Industry Group, ‘Ai Group Aide Memoire’, Submission in Horticulture Award 2020, 
AM2020/104, 29 July 20210 at [5]–[6]; National Farmers’ Federation, ‘NFF’s Aide Memoire’, Submission in 
Horticulture Award 2020, AM2020/104, 29 July 2021 at [4]–[7].

4 Re Shop, Distributive and Allied Employees Association (2011) 211 IR 462 at [24] (Lawler VP, Watson SDP and Hampton 
C), cited in 4 yearly review of modern awards – Penalty Rates [2017] FWCFB 1001 at [269] (‘Penalty Rates Decision’).

5 Shop, Distributive and Allied Employees Association v National Retail Association (No. 2) (2012) 205 FCR 227 at [46].
6 Penalty Rates Decision at [136], citing Shop, Distributive and Allied Employees Association v National Retail Association 

(No. 2) (2012) 205 FCR 227 at [46]. 
7 See generally: Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR 

227.








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[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 Rates10 (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);

8 Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161.
9 Ibid at [48], citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.
10 Penalty Rates Decision at [269]. 








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 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

(c) piece rates.’

11 Ibid at [269].








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[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. 








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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

12 Fair Work Commission, Horticulture Award 2020, MA000028, 27 September 2021, cl. 4.2(a) (‘Horticulture Award’). 
Note the Award also covers earing, fencing, trenching, draining or otherwise preparing or treating land or property in 
connection with the activities listed at cl. 4.2(a).

13 Horticulture Award, cl 4.3.
14 Exhibit AFPA 2 at [12].
15 Ibid at [21].
16 Ibid at [13]–[14].
17 Ibid at [15].
18 Ibid at [21].
19 Ibid at [11].
20 Transcript of Proceedings,  Horticulture Award 2020 (Fair Work Commission, AM2020/104, Ross J, 15 July 2021) at 

PN1159–60 (cross-examination of Dr Underhill) (‘Transcript, 15 July 2021’); Department of Agriculture, Water and the 
Environment, Labour use in Australian agriculture (Research Report 20.20, December 2020) at CB515–6.








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[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: 

21 See Exhibit UWU 7 at [9], citing Australian Bureau of Agricultural and Resource Economics and Sciences, Labour use in 
Australian agriculture, 2018-19 (Web page, 13 January 2021) https://www.agriculture.gov.au/abares/research-
topics/labour.

22 Exhibit UWU 7 at [10], [13]; Transcript of Proceedings, Horticulture Award 2020 (AM2020/104, Ross J, 13 July 2021) at 
PN666–83 (cross-examination of Dr Howe) (‘Transcript, 13 July 2021’); Transcript, 15 July 2021 at PN1134–9 (cross-
examination of Dr Underhill).

23 Dr Howe confirmed that the SWP is ‘specifically calibrated to seasonal work in the horticulture industry’ and that 
‘everyone who is participating in that scheme is working in the labour force that is the subject of this proceeding.’  The 
PLS ‘is a broader scheme for participation of Pacific Islanders in the labour force in Australia’ and ‘covers a range of 
different industries, but it includes … agriculture and horticulture’: See Transcript, 13 July 2021 at PN674–677 (cross-
examination of Dr Howe).

24 ABARES gives a figure of 119,000 for February 2019 and 130,000 for the 2018–2019 year: Exhibit UWU 7 at [8]; 
Transcript, 15 July 202 at PN1153–56 (cross-examination of Dr Underhill); Transcript, 13 July 2021 at PN697–9 (cross-
examination of Dr Howe).  A Unions NSW report gives a figure of 142,000: Exhibit AWU 15 at 4, CB294; Transcript, 
15 July 2021 at PN1190–2 (cross-examination of Dr Underhill).  Dr Howe used the ABARES estimate of 130,000: 
Transcript, 13 July 2021 at PN697–99 (cross-examination of Dr Howe).  Dr Underhill did not disagree with an estimate 
of 120,000 to 140,000 and agreed that the number is at least 119,000: Transcript, 15 July 2021 at PN1193–203, PN1230 
(cross-examination of Dr Underhill).

25 Transcript, 15 July 2021 at PN1158 (cross-examination of Dr Underhill).
26 Department of Agriculture, Water and the Environment, Labour use in Australian agriculture (Research Report 20.20, 

December 2020) at 4, CB513.






https://www.agriculture.gov.au/abares/research-topics/labour
https://www.agriculture.gov.au/abares/research-topics/labour


[2021] FWCFB 5554

13

 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

27 The National Agricultural Labour Advisory Committee estimated that 30,000–35,000 WHMs worked in agriculture in 
2018–19: See National Agricultural Labour Advisory Committee, National Agriculture Workforce Strategy: Learning to 
excel (Report, December 2020) at CB1514;  Dr Underhill initially said that this figure seemed low but later accepted that 
she was applying an obsolete multiplier of 95 per cent instead of 80 per cent to determine the percentage of WHMs with 
a second-year visa that undertook horticultural work, and later proffered a total estimate of at least 40,000 WHMs: 
Transcript, 15 July 2021 at PN1207–32 (cross-examination of Dr Underhill).  Dr Howe proffered a figure of about 36,000 
in agriculture, but accepted that only a proportion of this number worked in horticulture: Exhibit UWU 7 at [12]; 
Transcript, 13 July 2021 at PN690–4.

28 Figure provided by the National Agricultural Labour Advisory Committee, see National Agricultural Labour Advisory 
Committee, National Agriculture Workforce Strategy: Learning to excel (Report, December 2020) at CB1514; 
Transcript, 13 July 2021 at PN717 (cross-examination of Dr Howe); Transcript, 15 July 2021 at PN1234–6 (cross-
examination of Dr Underhill).

29 Transcript, 13 July 2021 at PN719 (cross-examination of Dr Howe); Transcript, 15 July 2021 at PN1238–40 (cross-
examination of Dr Underhill).

30 Transcript, 15 July 2021 at PN1241–3 (cross-examination Dr Underhill).
31 Ibid at PN1184–1189 (cross-examination of Dr Underhill); Transcript, 13 July 2021 at PN687, PN704 (cross-examination 

of Dr Howe).
32 ABARES gives figures of 63,000 migrants workers and 56,000 local workers in horticulture in February 2019, with local 

workers therefore making up about 47 per cent of the total of 119,000 workers: see Department of Agriculture, Water and 
the Environment, Labour use in Australian agriculture: Research Report 20.20 (Research Report 20.20, December 2020) 
at 4, CB516.

33 Department of Agriculture, Water and the Environment, Labour use in Australian agriculture (Research Report 20.20, 
December 2020) at 4, CB516.








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[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 Tan39 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 

34 Exhibit AWU 30, 53.
35 Elsa Underhill and Malcolm Rimmer, ‘Layered vulnerability: Temporary migrants in Australian horticulture’ (2015) 58(5) 

Journal of Industrial Relations 1 at 15, CB2221.
36 Exhibit AWU 30 at 53.
37 Ibid at 57.
38 Transcript, 13 July 2021 at PN722–44; PN981–3 (cross-examination of Dr Howe). Note that the approval process requires 

the employer, among other things, to submit to audits of accommodation, pay and employment conditions: See Exhibit 
AFPA 2 at [25]; Transcript, 13 July 2021 at PN739–43 (cross-examination of Dr Howe). 

39 Exhibit AFPA 5.








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15

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

40 Exhibit UWU 9.
41 Exhibit AFPA 5, Attachment ET-8 at 33; Exhibit AFPA 5 at 117.
42 Exhibit AFPA 5, Attachment ET-4 at 1; Exhibit AFPA 5 at 25.
43 Exhibit AFPA 5, Attachment ET-4 at 2; Exhibit AFPA 5 at 26.
44 Annual Wage Review 2013-14 [2014] FWCFB 3500 [229]. See also Annual Wage Review 2016-17 [2017] FWCFB 3500 

[414]; Annual Wage Review 2017-18 [2021] FWCFB 3500 [292]; Annual Wage Review 2018-19 [2019] FWCFB 3500 
[223]; Annual Wage Review 2020-21 [2021] FWCFB 3500 [63].








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[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

45 (1935) 54 CLR 230.
46 (1935) 54 CLR 230 at 253.
47 Transcript, 13 July 2021 at PN708 (cross-examination of Dr Howe); Department of Home Affairs, Working Holiday Maker 

visa program report (Report BR0110, 30 June 2021) at CB947.
48 Australian Fresh Produce Alliance, ‘AFPA’s closing submissions on the evidence’, Submission in Horticulture Award 

2020, AM2020/104, 26 July 2021 at [16] (‘AFPA closing submission, 26 July 2021’).  
49 Australian Fresh Produce Alliance, ‘AFPA’s response to further questions from the Commission’, Submission in 

Horticulture Award 2020, AM2020/104, 30 July 2021 at [11]. The NFF advance a similar position, see Transcript of 
Proceedings, Horticulture Award 2020 (Fair Work Commission, AM2020/104, Ross J, Catanzariti VP and Riordan C, 30 
July 2021) at PN386–398.

50 See, eg, Amalgamated Engineering Union v Metal Trades Employers Association (1930) 28 CAR 923 at 936–7; 
Galvanised Iron Manufacturers (Lysaght’s Newcastle Works Ltd, Newcastle) Award [1937] AR (NSW) 598 at 600.






https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-background-paper-070721.pdf


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[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,56 in 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 

51 Australian Fresh Produce Alliance, ‘AFPA’s submission’, Submission in Horticulture Award 2020, AM2020/104, 11 June 
2021 at [23] (‘AFPA submission, 11 June 2021’).

52 Fair Work Commission, Horticultural Industry (AWU) Award 2000, AP784867, cls. 15.5, 18.4, 24.2.4. 
53 Re Horticulture Award 2010 (2009) 193 IR 163 [6], [13].
54 Australian Workers’ Union, ‘Outline of Submissions for the Australian Workers’ Union in Reply’, Submission in 

Horticulture Award 2020, AM2020/104, 2 July 2021 at [10]–[12] (‘AWU submission in reply, 2 July 2021’).
55 Amalgamated Engineering Union v Metal Trades Employers Association (1930) 28 CAR 923 at 938, citing Re An 

application by the Stove and Piano Frame Moulders and Stove Employees Union (Heydon J).
56 (1930) 28 CAR 923.
57 (1930) 28 CAR 923 at 937.








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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 Union to 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:

58 (1939) 41 CAR 285.
59 See Australian Workers’ Union v Hans Irvine & Ors; Australian Workers’ Union v W. Arthur & Ors (1920) 14 CAR 204 

at 221.
60 (1939) 41 CAR 285 at 334.
61 Ibid.
62 (1945) 55 CAR 704.
63 The AWU v T. Abbott and Others (1965) 109 CAR 679.
64 (1977) 186 CAR 801.








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‘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.

65 AFPA submission, 11 June 2021 at [2]








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[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 

66 AFPA submission, 11 June 2021 at [22].
67 Ibid.








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21

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 Workplace Relations 
that the Australian Industrial Relations Commission (AIRC) undertake an 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 ‘should enable 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.”

68 Re Request for the Minister for Employment and Industrial Relations – 28 March 2009 (2009) 181 IR 19.  
69 Ibid.  
70 See Exhibit NFF 3 at [15], Annexure C.
71 See National Farmers’ Federation and the Australian Industry Group [2009] AIRCFB 966 at [2]. 








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22

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 
provisions applying 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 

72 National Farmers’ Federation and the Australian Industry Group [2009] AIRCFB 966 at [11]–[13], [19]–[20].
73 Australian Industry Group, ‘Reply Submission’, Submission in Horticulture Award 2020, AM2020/104, 1 June 2021 [45]–

[53] (‘Ai Group submission, 1 June 2021’); National Farmers Federation, ‘Submission of the National Farmers 
Federation’, Submission in Horticulture Award 2020, AM2020/104, 11 June 2021 at [15]–[16] (‘NFF submission, 11 
June 2021’).

74 NFF submission, 11 June 2021 at [16].
75 Ai Group submission, 1 June 2021 at [6].








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23

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 2010.80 We agree with the Union parties’ submission that the 
decision does not stand in the way of acceptance of the Application. 

76 Ibid at [53].
77 Australian Workers’ Union, ‘Outline of Submissions for the Australian Workers’ Union’, Submission in Horticulture 

Award 2020, AM2020/104 at [23] (‘AWU submission, 19 March 2021’); United Workers Union, ‘Reply Submissions of 
the United Workers Union’, 5 July 2021 at [20], [22] (‘UWU submission in reply, 5 July 2021’).

78 UWU submission in reply, 5 July 2021 [22].
79 United Workers Union, ‘Final Submissions of the United Workers Union’, Submission in Horticulture Award 2020, 

AM2020/104, 26 July 2021 at [17].
80 National Farmers’ Federation and the Australian Industry Group [2009] AIRCFB 966.








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24

[91] We also agree with the observation of the Full Bench in Re Restaurant & Catering 
Industrial,81 that ‘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. 

81 [2021] FWCFB 4149.
82 [2021] FWCFB 4149 at [91]. 








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25

(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 

83 [2018] FCA 1034 (‘Hu (No 2)’).
84 [2019] FCAFC 133 (‘Hu Appeal’).
85 United Workers Union, ‘Submissions – United Workers Union’, Submission in Horticulture Award 2020, AM2020/104, 

19 March 2021 at [22] (‘UWU submission, 19 March 2021’).
86 Hu (No 2) at [24], [140]; Hu Appeal at [74], [75] (Bromberg J).
87 Hu (No 2) at [25]; see also Exhibit UWU 2 at [12]; Exhibit UWU 6 at [10].








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26

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

88 Hu (No 2) at [26]–[27].
89 Ibid at [28]–[29], [34].
90 Ibid at [31].
91 Ibid at [30], [85].
92 Ibid at [33]–[38].
93 Ibid at [140].








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27

[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.

94 Ai Group submission, 1 June 2021 at [23]. 
95 Hu (No 2) at [24]–[26].
96 Fair Work Act 2009 (Cth), s.45.








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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

(c) whether the employee’s employment is full-time or part-time; 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

(c) any deductions made from the gross amount paid to the employee.

(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








[2021] FWCFB 5554

29

(b) a bonus; or

(c) a loading; 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.

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.

3.34  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

(c) the period to which the pay slip relates; 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.








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30

(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

(c) the amount of the payment made at that rate.’

[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 Services99 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

97 Explanatory Statement, Fair Work Regulations 2009 (Cth) at [180].
98 Ibid at [224].
99 [2017] FCCA 1020.
100 Fair Work Ombudsman v Seasonal Farm Services [2017] FCCA 1020 at [11].








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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.

101 Email from the Australian Workers’ Union to the Fair Work Commission, 9 July 2021. 
102 See Background at Paper at [67], citing Penalty Rates Decision at [1063]–[1104] and [1184]–[1264]; Annual Wage 

Review 2012-13 [2013] FWCFB 4000 at [442]–[446]; 4 yearly review of modern awards – Social, Community, Home 
Care and Disability Services Award 2010 [2021] FWCFB 2383 at [168]–[173].

103 [2013] FWCFB 4000.








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…

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:

104 [2013] FWCFB 4000 at [441]–[442].
105 Exhibit AFPA 6 at [34]. 
106 Exhibit AFPA 6 at [37].
107 Penalty Rates Decision at [1203].
108 Exhibit AFPA 6 at [49].








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33

‘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 

109 Penalty Rates Decision at [1097].
110 (Report No.76, 30 November 2015).
111 Penalty Rates Decision at [1069].
112 4 yearly review of modern awards – Social, Community, Home Care and Disability Services Industry Award 2010 – 

Substantive Claims [2021] FWCFB 2383 at [168].
113 Penalty Rates Decision at [1617].








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34

[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. 

114 Exhibit UWU 7. 
115 Exhibit AFPA 6.
116 Exhibit AFPA 6 at [148]–[177]. 
117 Exhibit UWU 8.
118 Exhibit AFPA 7. The Houston Reply also responded to the Underhill Reply








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35

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 

119 Joanna Howe et al, ‘Towards a Durable Future: Tackling Labour Challenges in the Australian Horticulture Industry’ 
(Research Paper, University of Adelaide, January 2019).

120 AFPA closing submission, 26 July 2021 at [93]–[95]. 
121 Ibid at [93]. 
122 Exhibit UWU 8 at [34]–[37]; Transcript, 13 July 2021 at PN897–905 (cross-examination of Dr Howe).








[2021] FWCFB 5554

36

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 issue128 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; 

123 Transcript, 13 July 2021 at PN722–7 (cross-examination of Dr Howe).
124 Exhibit UWU 8 [8]; Transcript, 13 July 2021 at PN789–97 (cross-examination of Dr Howe).
125 Transcript, 13 July 2021 at PN798–805 (cross-examination of Dr Howe).
126 Transcript, 13 July 2021 at PN906–9.
127 See Transcript, 13 July 2021 at PN785–7.
128 Transcript, 13 July 2021 at PN886–96.








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37

 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. 

129 Ibid at [828]–[835].
130 For example, see Transcript of Proceedings, Horticulture Award 2020 (Fair Work Commission, AM2020/104, Ross J, 20 

July 2021) at PN3829–82; PN3881–97; PN3926–31; PN3942–3; PN3961–8; PN3995–8; PN4058–9 and PN4105–6 
(cross-examination of Mr Houston) (‘Transcript, 20 July 2021’).

131 Transcript, 13 July 2021 at PN989 (cross-examination of Dr Howe). 








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38

[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 decision136 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

‘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 

132 Ibid at [783].
133 Ibid at [787].
134 Ibid at [773].
135 AFPA closing submission, 26 July 2021 at [102]
136 4 yearly review of modern awards – Social, Community, Home Care and Disability Services Award 2010 [2021] FWCFB 

2383.
137 [1953] SC 34 at [40] (Lord President Cooper). 








[2021] FWCFB 5554

39

independently appraised, and the parties have invoked the decision of a judicial tribunal 
and not an oracular pronouncement by an expert.’138

[154] There is considerable force in the AFPA’s submission. Dr Howe’s opinion at [19] of the 
Howe Reply does have the appearance of ‘an oracular pronouncement’, and the evidence upon 
which Dr Howe relies does not support a finding of the breadth and generality proposed. But it 
is not necessary for us to finally resolve this question as the UWU ultimately eschewed reliance 
on Dr Howe’s opinion to support a finding that pieceworkers earned less than $15 an hour. As 
counsel for the UWU put it in the course of closing oral argument:

‘… the Full Bench asked the UWU to address the weight that should be attributed to the evidence 
of Dr Howe in her first statement at paragraph 19.  That statement needs to be understood in its 
proper context, and the purpose for which the UWU is relying on it.  The UWU does not submit 
that the Commission should find as a matter of fact that piece workers earned less than $15 an 
hour… it is not necessary for the Commission to make a finding of the precise mathematical 
amount by which pickers and horticultural workers are underpaid in order to vary the award.

The finding that the Commission is asked to make on the basis of Dr Howe's report and other 
evidence is that piece rates are generally set at levels which means that workers do not earn at 
least minimum award rates.  In his first statement Mr Houston stated his conclusion that the 
Towards a Durable Future report does not quantify in the mathematical or qualitative sense the 
average pay received by piece rate workers.  That is of course correct, and neither the UWU nor 
Dr Howe contended that to be the case

…

The conclusions in Towards a Durable Future are soundly based on the research which underpin 
it, and that includes qualitative data.  Data of course does not mean just numbers.  Mr Houston 
again states that qualitative data can't be relied on to draw quantitative conclusion with statistical 
confidence, and again no one is contesting the proposition, it's a strawman argument.  But that 
is not to say that qualitative research is not an accepted, valuable method of social science 
research, and that conclusions cannot be drawn from the research.’139

[155] As we have mentioned, the Durable Future Report is the product of a 3-year national 
study into the conditions of work in the Australian horticulture industry. The research project 
used ‘a three phase mixed methodological approach to analyse the nature of labour supply and 
regulation issues in Australian horticulture’ combining ‘a literature review, a quantitative 
survey and extensive qualitative research’.140

[156] The qualitative data to which the UWU’s counsel referred (see [154] above) is 
summarised at [21]–[28] of the Howe Reply.

[157] The qualitative phase of the project involved interviews and focus groups with a total of 
355 individuals across 13 regions located in 6 Australian states and territories. The table below 

138 4 yearly review of modern awards – Social, Community, Home Care and Disability Services Award 2010 [2021] FWCFB 
2383 at [172]. 

139 Transcript 30 July 2021 at PN165–6, PN169.
140 Exhibit UWU 8 at [7]








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40

summarises the number and location of interview and focus group participants in Phase Three 
of the project.141

 

Location Interviewee 
Participants

Focus Group 
Participants Participant Roles

Binningyup, WA - 12 Growers, workers

Bundaberg, Qld 17 -

Growers, workers, recruitment agents, 
hostel managers, industry association, 
trade union official, government 
representative

Darwin, NT 1 15 Growers focus groups, industry 
association, workers

Gingin, WA 1 33 Growers, workers, labour hire contractor

Griffith, NSW 14 -

Growers, undocumented worker, 
Accommodation/labour providers, 
harvest recruitment office, industry 
association, government agency, local 
council, hospital social workers, church, 
community organisations

Lockyer Valley, Qld 2 4 Growers, industry representative

Katherine, NT 3 23 Growers, workers, labour hire contractor

Mildura and Robinvale, 
Vic 21 -

Local business, workers; community 
group, growers, hostel owner, union 
official, church representative, labour 
contractor, local government official, 
state government official, heath worker

Orange, NSW 1 12 Growers, workers, labour hire contractor

Stanthorpe, Qld 24 6

Growers, workers, 
accommodation/labour providers, harvest 
recruitment office, police, local council, 
Mayor

Virginia, SA 13 12 Growers, workers, training provider, 
industry association

Wanneroo, WA 6 40 Growers, community 
representatives/legal aid

Wide Bay- Burnett, Qld11 -

Growers, worker, local government 
officials, accommodation providers, 
industry representative, church 
representative

[158] Dr Howe notes that the 13 case study locations share a number of similar characteristics 
as well as key characteristics that made them suitable for comparison, ‘resulting in a rich study’:

141 Ibid at [12].








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41

‘In all cases, horticulture was among the largest industries in the local economy in terms of its 
contribution to gross regional product and employment. However, differences were present in 
relation to crop variety, distance from major cities, labour flows, distribution markets, local 
infrastructure, eligibility of the region’s postcode for the 417 visa extension for working holiday 
makers, and its attraction as a tourist destination.’142

[159] To verify the information from the case study interviews and focus groups, primary 
documents provided by stakeholders and reports from local media, industry and government 
were also analysed. Additional interviews and focus groups were undertaken with 51 key 
stakeholders with particular knowledge of the horticulture industry and 2 additional WHM 
focus groups were held (in Sydney and Melbourne).143 

[160] The qualitative data analysis software NViro was used to organise and manually code 
the interview and focus group transcripts. At [15] of the Howe Reply, Dr Howe says: 

‘This is an accurate and established method for analysing qualitative data in the Social Sciences 
used for the making of generalisations drawn from patterns observed in case studies. It is a 
‘systematic approach to review participant views collected from an experience in order to allow 
patterns and themes to emerge over multiple passes through the data.’

[161] Dr Howe references a number of sources in support of the above observations and was 
not cross-examined in respect of this part of her evidence. 

[162] The qualitative phase of Dr Howe’s project used a semi-structured interview method 
with a set of core questions. Interviewees were asked a series of questions in relation to 
remuneration.144 At [22] of the Howe Reply, Dr Howe says that the following extracts from the 
data ‘are a representative sample of the types of responses we received about workers’ pay on 
piece rates. These indicate extremely low wages for piece rate workers involved in the study’:
 

Interviewees Response

“We worked in the same place and the cherries was very bad this year with 
the weather and so because of the rains they all cracked and so for the 
pickers, we had to check cherry by cherry … so you can’t make money and 
so you make like $5 per hour.”

“So for one day, I’ve done like 20 bucks in 7 hours.”WHMs focus 
group, Darwin

“The piece-rate, the thing is that they, in my experience on the farm, it was 
a group effort, so if the group was good then everyone got paid alright but 
if you have one really hard worker and you are stuck in a group with two 
other people, then it’s not great because they average it out for all three of 
you. I think that’s kind of like you’re throwing the wolves together and 

142 Ibid at [13].
143 Ibid at [14].
144 Ibid at [22].








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42

then you see what comes out, and that’s how the farmer can get away 
with not paying the hourly rate.”

WHMs focus 
group, Gingin

“I work before on a farm in Carnarvon, it was piece-rate, it was 15 kilo of 
beans for $12 ... so $7 an hour.”

“Like you just work for $5 an hour because the bucket price was just 
rubbish.”

“We had 12 days of picking raspberries and it was terrible, I mean piece- 
rate, you get 80 cents per punnet … For the first week we probably earnt 
just over $200 and we were doing 8, 9 hours a day. The first day’s 
paycheque was $28 for a 7-hour day and they charged you for your 
equipment so they took $20 off that.”

“You’re being forced to work piece rate but the crops wouldn’t be very 
good, so they’d say, ‘Don’t pick any of these because it’s diseased’ and 
you’d spend all day walking up and down and looking for fruit to pick and 
you’d be expected to do all of that in your own time. Yes, just $3 a bucket 
would take you half an hour, 40 minutes for the bucket because the 
crop’s just not there.”

WHMs focus 
group, 
Katherine

“You just can’t make the minimum wage. You can’t get it when you’re 
paid piece rate where you’ve got to be really fast … it’s impossible to pick 
it when you’re being told to go and pick bad fruit to clean the rows, when 
you’re supposed to be picking the good stuff, you don’t get paid for the bad 
fruit when you’re getting sent back to clean the rows.”

“I worked for 3 different farms. The first one was piece-rates and it was 
terrible. They like didn’t pay, they had like no fruit bushes and so I worked 
for 8 hours and I think made 40 bucks and that was really – I stayed for 
3 days and they didn’t want to pay us, so we left. And then the next farm 
that I found paid $9 per hour when the minimum wage was 24 and that was 
the one that we weren’t sure how they count the days. But I did a lot of 
work with him just because he had steady work and then eventually I found 
like a blueberry farm and they paid the minimum wage at the time which I 
think was $20 or $21 an hour and they had breaks.”

“I got 12 cents per tree so I needed to plant a lot of trees. I made about $15 
an hour, $100 a day.”

“Yes, I also worked for 3 days at a tomato farm and we earned on piece 
rates what ended up being $5 an hour for 6 kg of the little cherry 
tomatoes.”

“Yes definitely. I had a piece rate job where most of the workers didn’t 
even get $10 per hour. The farms don’t care if people leave after a few 
days, because there are always new backpackers, who try the job or even 
stay with the bad money, because they can’t find something else.”

WHMs focus 
group, 
Melbourne

“Oh there was nothing – no piece rate agreement, you just showed up and 
they just verbally told you at the end of the day what the rate was and it 
changed every day, every single day.”








[2021] FWCFB 5554

43

WHMs focus 
group, Orange

“10 hours, $10. $1 an hour…We had no choice as well…because we need 
to get 88 days first…We do anything because there’s no choice.”

“We two are working in salads, you have to work as a team and you get 
paid one box $1.40. So actually for every box you do it’s like 70 cents per 
person and it’s impossible to actually [sic] so many boxes that you can earn 
anything. They say on the papers you sign, they say, ‘Oh you can make 
15% plus than the hourly wage’. But it’s just impossible. Like really … 
Yeah, even the people working there for now a couple of weeks. They do for 
two people like about 180 box a day. It’s just nothing, like you don’t earn 
even $120 in eight hours.”

WHMs

interviews, 
Stanthorpe

“$3 an hour we worked. But the price was actually really wrong. Like we 
got $27 for a thing of oranges. But his farm, I don’t know why but they had 
a really bad season.”

Grower 
interview, 
Stanthorpe

“There’s a couple here that worked at a strawberry farm for two or three 
days, they’re from Ireland. They made $160 in four days I think on a 
contract piece rate and they just said that nobody in the crew could 
achieve the output that was required to make a minimum wage. I said I’d 
give them support if they wanted to take it further but he was like I’m here 
for a good time, not for something like that and that’s how farmers get 
away with it because the people that are here for a good time are not going 
to follow through. They move on. The people that are desperate put up with 
the unfairness.”

“Raspberry picking – we worked eight or more hours but we get $30 or $40 
for the day.”

“We called the harvest office and she said, ‘this is going to be one of the 
best jobs, people are queuing for it.’ So we were just like, ‘yeah, this is 
going to be great, we’re going to earn loads of money’. Day 1 we earned 
$31.50 for the entire day … seven hours work but we worked out to be 
paid like $20 an hour we’d have to fill four bins up each but it’s just no 
possible…and like have you seen the size of the bin? They’re like big crate 
things. They’re bigger than us, they’re literally probably like this with the 
tables and chairs, about this high…no-body in the whole place even came 
close to making the minimum wage.”

WHMs focus 
group, 
Stanthorpe

“It was a contract piece rates job…whole 2 weeks under $200 dollars for 8 
hours a day.”

Local worker 
interview, 
Stanthorpe

“You had to do a whole row for $16 and I got maybe a quarter of the way 
down the row and it took me like over an hour so I’m working on $4 an 
hour. I can sit at home – I don’t want to. I can sit at home on Centrelink 
and get $500, $600 a fortnight and someone wants to pay me $4?! I’m 
Australian, I don’t need to – I’m no-one’s slave.”

WHMs focus 
group, Virginia

“Let’s just say, 8 o’clock you’d go to your farm and then they have let’s 
say a hundred bins that they’ve got to do. So whoever is, you know quick 
gets the more bins. Obviously there was two of us, so we decided to do a 
bin together just for morale and make it look like it goes up quicker. So, 
you know, you could have one day could be trees this high with oranges 
the size of footballs and it would take, let’s say, 30 minutes to fill up and 








[2021] FWCFB 5554

44

there was one instance where we got a little bit late to the farm and there 
was only like one bin left and there was only about three oranges on each 
tree and he wanted every orange off the tree, so you know, you spend two 
minutes going up and down, so I think we were there for about four or five 
hours, so it worked to be like $3 each an hour.”

“I got like 5 bucks. It was six hours. Still not $3 but [laughs] an hour.”

There was one pay cheque that I only got $40…I went to make my 88 days. 
I was constantly looking for another farm and I had lined up to do cherry 
picking with a really nice family, it seemed like an excellent place and 
because of the weather it got delayed for three or four weeks and I finally 
gave up on that as I had spent all this time waiting.

“Not when I was early picking, especially at the start it was difficult to do 
more than one row a day. Sometimes I was getting $90 a day … for 7 
hours.”

“You would get $8 a rack and if you’re a good picker it’s $150 a day. I 
made $100 a day for nine and a half hours.”

WHMs focus 
group, 
Wanneroo

“I did get paid less at the end because you’re forced to work in orchards 
where 75 per cent is already picked so you really looking to find cherries 
so you don’t get much pay. But it’s the only way.”

WHMs focus 
group, 
Melbourne

“I think on this farm there was like 5 of us who weren’t willing to leave until 
we got paid and he kind of realised he had to come back with the money. So 
we did get paid in the end, but, yeah, it was like, I think like $40 for 8 hours 
of work on piece rates.”

“The pear farm was $30 a bin – a massive crate that took a whole day to 
fill! The second farm was a woofing farm so we got our accommodation 
and food for free in order to work for our days to be signed off. The third 
farm we got paid per box, I think it was $4 or $5 a box.”WHMs focus 

group, Sydney

“I got paid piece-rate on one farm, hourly on another. The piece rate 
agreement was very vague and I felt I was hugely underpaid.”

[163] At [23] of the Howe Reply, Dr Howe says that the study found that ‘there were a number 
of factors why piece rate workers received low pay and appeared to accept low pay. For WHMs, 
the reason for the latter was because of the need to complete an 88-day period of specified work 
in order to earn a visa extension.’ Dr Howe goes on to state that the following extracts are a 
representative sample from the data:
 








[2021] FWCFB 5554

45

Interviewees Response

WHMs focus 
group, Darwin

Participant: Because we have to, yeah, to do the values of the farm days 
and we have not choice to try to make some money and to do that….it is 
very hard to find farm jobs.

“No choice. Just for, I was just staying for my visa days, to get the 88 
days.”

WHMs focus 
group, 
Katherine

“It’s kind of hard to get farm work, so it’s like, what do you do, because if 
you get kicked off that one, then it’s really hard finding work. … You are 
forced to work there, because you can’t afford to move anywhere else 
and you’re just trapped.”

“Even one of the girls I knew, like the guy told her, if she had sex with him 
he would sign off on her 88 days that day and I was like, ‘Call in and tell 
them’ but she was like, ‘I’m working on his farm, I just want to get my 88 
days and be done with it’ and so she didn’t do anything, she didn’t report 
it, she just found a different farmer to work for but I didn’t know who he 
was really, so I didn’t feel like I could call in. Like I don’t think they want 
to hear third-party reports about a farmer, like how do they believe that?”

WHMs focus 
group, 
Melbourne

“It’s the only way to get the 2nd year visa. If I had had a choice I would 
not have done it or stuck it out being paid a pittance as long as I did. So, 
ultimately I would not recommend it to anyone.”

Local 
government 
official 
interview, 
Griffith

“The thing is, we’re encouraging a program or a body of people to come to 
the country and the only reason they’re coming to rural Australia is 
because they have to do their 88 working days to stay the extra year. You 
know, so we’re almost putting a noose to their head saying, ‘If you don’t do 
this, you can’t stay’. Because we have no trouble, like saying the solar farms 
that would come to the area, they have no trouble attracting people to that 
kind of work when they know they’re going to be earning $30 an hour. So 
maybe half the problem too with horticulture is this piece rate.”

Community 
stakeholder 
interview, 
Griffith

“The 88 days costs them [WHMs] a fortune. Most of them, the general 
view is now, you don’t go unless you’ve got $2000 in the bank because 
it’s going to cost you money to do the 88 days. This is not a time when 
you make money, it’s a time when you lose money so you can get an extra 
year on your visa.”

FWO official 
interview, 
Stanthorpe

“The ones that are more likely to be underpaid or exploited are ones 
where the employer, whether it’s a contractor or grower, has some 
sort of hold over them. The 88 days are a big driver of that. It’s really 
important to a 417 visa holder to do their 88 days. Now, sometimes 
their planning is very poor and they tend to leave that towards the end of 
their first year that they’re here on a 417 visa, because they’ve got to do 
their 88 days within, you know, a specified time. Now if they’ve left it to, 
say, the last few months before their first year expires, there’s a great deal 
of urgency to do that in 88 days. Some rogue operators know the level of, I 
guess, stress that that causes and the urgency to do the 88 days and get that 
signed off and then approach immigration with your documentation. In 
some cases they’ll underpay you and say, ‘Well I f you want a second year, 








[2021] FWCFB 5554

46

you’re only getting this much as a rate of pay. Or worse, you have to pay 
me to sign off that visa documentation.’ So what we’re seeing is, with visa 
holders, the 88 days is worth more to them than the correct rate of pay.”

[164] At [24] of the Howe Reply, Dr Howe says that the study ‘also found that the 88-day 
period meant that it was very difficult for WHMs to obtain the standard of average competency 
set by the grower because they had no prior experience in horticultural work and only worked 
in the industry for the minimum period required to earn a visa extension.’ Dr Howe goes on to 
state that the following extracts from the data are a representative sample of the types of 
responses received about the interaction between the costs of training and the use of pieceworker 
rates:
 

Interviewees Response

Accommodation 
operator 
interview, 
Stanthorpe

“It’s hard to know with underpayment who’s right and who’s wrong 
because if some people are working on piece rates, there is no bottom 
figure that somebody can work for a farmer. I had a guy in here this 
morning and he said he’d been working in [name of farm omitted] and 
the money was just terrible on piece rates. I said to him, ‘you wouldn’t 
have made any money in one day and you won’t on any contract piece 
rates job for probably two weeks, which is how long it can take to build up 
to the speed for an average competent worker. To me, average would 
probably be 60 to 70% of the people that are working there, should be 
capable of earning X amount of dollars. You might get some that are 
10% or between 5 and 10% normally at the top who will earn 
extraordinary money.”

“On big farms, farmers can’t be standing behind every single worker. 
They have to go contract or they couldn’t possibly make any money if 
they were paying an hourly rate on a huge farm that employs 50 or 100 
people or something. They have to do contract because people can’t be 
trusted to work, especially backpackers, they’ll just sit under a tree if you 
were paying them hourly, or they’d take 40 minutes for lunch instead of 
half an hour. It happens all the time…If they’re hourly, it’s all down to 
the supervisor.”

WHMs focus 
group, 
Stanthorpe

“Some ladies making $90 a day and others who’re making $40 an hour 
because they’ve been doing it for 10 years. You can’t expect that of 
backpackers who just come here for the first year and have their first 
experience on a farm. We just can’t make anything.”

WHMs

interviews, 
Stanthorpe

“We’ve been doing the thinning for weeks and he said ‘you’ll be slow at 
first but you’ll pick it up, you’ll get faster, you’ll earn more money’ but 
we didn’t seem to pick it up fast but we thought we would get better. But 
we’re really struggling to pick up the pace so we’re not earning much – I 
think the last couple of pays worked out we were working about $10 an 
hour and the first few days was much less. Even now, last pay, I got paid 
like $450 and we worked 51 hours so that’s less than…and it was the 
hardest days’ work we’ve ever done in our lives, slashes all over hands, 
blisters.”








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47

Griffith local 
government 
official

“We’ve still got to have a workforce that is productive and I’m not sure 
that our locals and our backpackers are job ready yet. The whole thing 
with horticulture is the skill set has never really caught up with other 
industries where they train internally. You don’t hear about too many 
farmers or big businesses out there associated with horticulture that 
supply training. A lot of the training is on the job but certainly don’t see 
too much tertiary or education towards that side.”

Registered 
labour hire 
contractor 
interview, NSW

“The biggest problem with your backpackers of today is they don’t like 
piece rates. It’s just one thing that they can’t, you know, do it for long 
enough to get the skills to be any good at the game. That’s one of the 
reason why it’s hard for legitimate operators like me to market myself up 
against some of other contractors because they’ll just take a group of 
Malaysians and all they want to do is work and they’re not too fussed 
about what they’re getting paid.”

Growers focus 
group, Gingin

For us the 88 day thing is a pain in the butt because we get so many staff 
who are only here to do the 88 days. So, you’ve got someone sitting in a 
paddock and with my industry it’s so competitive we can’t pay hourly 
rates to pick fruit, we’re paying piece rates.

Accommodation 
provider 
interview, Griffith

“They’re usually around 18 cents or 13 cents a tree. An average person, if 
they do well, they can do a minimum of $150 a day, on an eight-hour day. 
If you do better, some people are earning two to three hundred dollars a 
day. If the employer sees that the person is too slow and not making 
quota, then basically they would let them go. The same thing with the 
broccolini packing shed, which is the other contract base we’ve got. We 
say to them, ‘Look we’ve got this happening and we would like to say to 
you, if you’re not making money, let them go again.’ Orange picking, we 
discourage people to do orange picking. I did it myself. Unless you’re 
working there a week, you won’t make anything. When people go and 
pick oranges, I say to them, ‘Be prepared to work for at least a week 
before you can see any benefit’.”

[165] At [27] of the Howe Reply, Dr Howe says that the study found that: 

‘… the piece rates provision in the Horticulture Award is challenging to enforce in an industry 
which is geographically dispersed and heavily reliant on temporary migrants and labour hire 
contractors. In addition, as each farm operation is different, the study found that assessment of 
whether a piece rate worker was being paid according to an accurate assessment of average 
competency typically required on-site inspection, which is difficult to achieve in practice.’

[166]  Dr Howe goes on to state that the following extracts are a representative sample from 
the data:
 








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48

Interviewees Response

Fair Work 
Ombudsman 
interview

“So you’re not meant to just arbitrarily pluck a figure out of the fair that 
you’re going to pay a kilo or a punnet … You have to ensure that that rate 
complies with the provisions of the modern award. So that’s where we 
spend a lot of time in discussions, in education, checking and trying to 
check that the piece rate meets that average competent employee provision 
of the award. Every farm is different. There’s no industry standards about 
what an average worker does because you could work in a certain crop but 
farms differ from farm to farm because there’s different conditions of 
working, how fast or slow you can pick and pack and all of that sort of 
thing. So that [piece rates] is probably the most problematic area of the 
horticulture award for us to enforce when we do our work.”

Union official 
interview, NSW

“It’s hard for the Fair Work Ombudsman to get on site. They can rock up to 
the site and the farmer’s still got the right to refuse them entry and they do 
regularly … Yes we too really struggle on sites with the dodgy employers 
and we’ve got competent organisers in all the regions and they know who 
the dodgy employers are and we inform the Fair Work Ombudsman. We’re 
not the only people that inform the Fair Work Ombudsman. We know that 
good farmers inform the Fair Work Ombudsman, and we know that 
community groups inform the Fair Work Ombudsman. But they [the FWO] 
have limited resources and powers.”

Grower 
interview, 
Bundaberg

“I just prefer to get someone else to work it out [the piece rate]. Yeah, I 
just want ten people to turn up, pick and they must leave and then I 
just write a cheque to that crowd [the contractor] and they sort it out. 
Because you’ve got to train them and you’ve got to make sure they’ve done 
their inductions. You’ve got to pay their wages into all their separate bank 
accounts. You’ve got to then pay all their super into all their – and that’s a 
lot of  paperwork when you’re trying to pick and pack and everything else. 
So it’s much easier to just pay someone to sort out all that stuff.”

Industry 
association 
official 
interview, 
Queensland

“I’ve seen products in the supermarket, grown by growers who I know 
have been done by Fair Work three or four times. So those people, and this 
particular grower I’m thinking of, runs around the countryside saying he 
builds the costs of the fines into his cost of doing business because it’s still 
cheaper than paying his workers correctly.”

Growers focus 
group, Orange

“It’s a legal requirement. If they’re going to be supplying the packing shed 
then they have to supply the payslips. But there’s many loopholes. The 50 
people that are on the books, you know there’s another 50 out there. I can’t 
prove if they have 60 or 70 and whether the other 10 were illegals, that 
could be cash out the back.”

Labour hire 
contractor 
interview, 
Mildura

“The grapes is the one that will cost to clean up. I’ll be brutally honest 
about that one. Because they’re so many small farms – they’re small family 
growers all paying piece rates. They’re 150 different growers in 
Mildura/Robinvale. Yeah, you’d virtually have to knock on every door to 
see, you know, ask them to look at their books. Even if you look at their 
books, you won’t necessarily get to the bottom of them. I’ll give you an 








[2021] FWCFB 5554

49

example, like … [name omitted], he’s a big grower and he’s got 7 different 
ABN numbers. It’s impossible to get to the bottom of it.”

[167] Finally, at [28] of the Howe Reply, Dr Howe says that the study found that ‘very few 
workers have the power to negotiate piece rates. Piece rates were largely arbitrarily set by 
growers and could be subject to change because of supply chain pressures.’ Dr Howe goes on 
to state that the following extracts from the data are a representative sample on this point:
 

Interviewees Response

WHMs focus 
group, Stanthorpe

“On this strawberry farm, there was a lady there, … – she was like 50 odd 
years old, picking strawberries all day – every day – and she made $200 
a day easy and then there was this English guy, built like a first grade 
football player. Like you’d think, fit, hardworking, he struggled to make 
$50 a day for a 10 hour day but it was his first season doing it though…On 
your contract it says the average worker should be able to earn minimum 
wage or more but that doesn’t happen. Last year I was an average 
strawberry picker, I did not make $20 an hour. I made maybe $13, 
$14 or $15 on average. I was the average picker. This year I was 
faster but I still can’t get the minimum wage and I’ve been there six 
months.”

WHMs focus 
group, Darwin

“I think the worst aspect is that there’s more than one way to pay. It’s the 
piece rate obviously. I think there is incentive, yes. They say, ‘Oh you can 
make a lot of money’ but if you’re a newbie, a new person, you are not 
going to make a lot of money right away. It takes time. So the employer, 
in a way, doesn’t have to really pay the money. I think the fact that a lot 
of the employers can essentially say things to you like, “Oh well, you 
know, there’s caravans coming up all day, people looking for jobs. If 
you don’t like the piece rates here you can just leave.”

Community 
stakeholder 
interview, Griffith

“Woolies and Coles, their buyers, their main buyers are standing up on a 
pedestal going ‘Everyone has to be doing the right thing here, everyone 
has to be moral about what they do and all the rest of it, they don’t give a 
shit frankly. They really don’t care, so long as they’re getting their 
product at the lowest price. They’re making all those noises but they 
really don’t care. I mean they were still buying [name omitted], they were 
still buying his tomatoes after he was raided and he flooded the market so 
all the small growers who were doing the right thing couldn’t even get 
their tomatoes to market. It’s just such an ugly scene.”

WHMs focus 
group, Katherine

“And the thing is really, we’re working to the price of punnets which 
was going up or down every day…. so some days we would go and the 
price of punnets would be 80 cents but then other days it would be over a 
dollar and then it would be back down to 80 cents.”

Growers focus 
group, Wanneroo

“If you get rid of the undocumented, I tell you now Coles and 
Woolies will only have half their produce. And as much as they’ve got 
their ethical sourcing and everything, they do turn a blind eye.”

Grower interview, 
Mildura

“So vegetable prices are very low, tomatoes are five bucks a box, you 
know, top of $12 I think for a ten kilo box. All the vegies are, you know, as 








[2021] FWCFB 5554

50

low as they can go. They [growers] can’t sell them all. Strawberries are 
about to reach a glut stage, I dare say, and every year you look and you 
say, ‘well, at $5 a box if you’re shipping it away, the box costs you $1.50 
just for the box, how do people do it?’ I know from here if I wasn’t 
paying proper piece rates I’d be losing a lot of money.”

“The growers aren’t paying correct wage rates…it’s the same in Chinese 
veg you know. I mean, they’re one, you know, they keep on producing at 
$1 a bunch or three bunches for $1 some times and the maths doesn’t add 
up unless there’s something dodgy. It’s a big problem if you’re trying to 
compete in the market and you are doing the right thing. Well it’s almost 
like you can’t compete unless you do the wrong thing – I think that’s 
where the industry’s got to…It’s bad for competition, totally. Yeah, it 
doesn’t drive efficient, it doesn’t drive innovative things. All it drives is 
that we have to reduce our wages, what we’re paying.”

Grower interview, 
Stanthorpe

“I think a lot of [visa holders] get into situations where they need money. 
They haven’t got a very good understanding of English and so they are 
open for exploitation. I’ve got this young Aussie guy, he was working for 
a contractor previously and he was doing something with strawberries, 
the rate was set he said when he went in there. He worked out a way he 
could do the job quicker and he started making 30% above what the award 
rate was. The contractor came in and changed the rate. It was the 
same job, he just changed the rate. To me, that’s exploitation. It’s as 
simple as that…Moving the goal posts. He ended up getting $16 an 
hour.”

WHMs 
interviews, 
Stanthorpe

“The farmer said our supervisor could fill a bin in 45 minutes and we 
said we wanted to watch him do it. I mean no-one could do that. That 
would mean he would have to pick 77 apples per minute and load them in 
carefully…I just can’t live on $8 a day.”

WHMs focus 
group, Perth

“I did get paid less on piece rates because you’re forced to work in 
orchards where 75% is already picked so you’re really looking to find 
cherries to pick. So you don’t get much pay but it’s the only way to get 
your 88 days.”

“We pay piece rates and our piece rate is irrespective of the price I’m 
getting. The piece rate is set by us to do it in a fair way. So every day 
we’re looking at it and if there’s less fruit and the workers are slow 
you’ve got to pay more. That’s how it is. But some guys don’t do it that 
way. If the price is cheap, then they drop the rate.”

Growers focus 
group, Wanneroo

“They’re not supposed to get the minimum wage. If you read it properly 
and this is the thing, it’s the average competent employee. Now I’ve been 
to Fair Work several times and what determines an average competent 
employee, they can’t tell you. They won’t give you a determination. I 
know growers who have 200 workers and they set their piece rate so 
one person on the farms makes $22 plus 25% so it’s like 25 bucks. 
But they work it out so one person makes the money. But to me 
that’s not right, you’ve got to have a fair percentage of the farm but 
what this, Fair Work, won’t tell you.”








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51

Accommodation 
provider 
interview, Griffith

“Picking oranges is probably our next biggest problem here in Griffith 
because it’s getting harder to find the pickers because of the piece rate. 
Because they pay per bin. I think they pay – now I could be wrong – 
generally from $30 to $35 a bin. I think it’s three bins of oranges to a 
tonne…If they’re going to get $300 or $400 a tonne and they’ve got to 
pay the person to pick it well. Then they have to pay for water and 
electricity. It gets to the point where the farmer hasn’t made anything … 
It’s not a very good job. It’s a shit job, up and down the tree all day 
picking oranges carrying this heavy bag around on the front of you. 
It’s a bad job, they’re not getting enough pay for it. And the farmers 
are paying too much and not getting anything…It’s almost impossible. 
Impossible because everybody’s just importing juice from the other side 
of the world which is cheaper than what they can do here and that comes 
to the pay rate too, doesn’t it, in the end?”

[168] The AFPA’s submissions about the deficiencies in Dr Howe’s qualitative data are set 
out at [100]–[101] of the AFPA’s closing submission, in summary the ‘deficiencies’ are:

1. The ‘data’ is in effect a collection of anecdotes and stories told in focus groups and interviews.

2. The sample size at individual locations and overall is small (total sample size of 50-70 being 
comparable or smaller than the sample size of 64 for the set of pieceworker employers in the 
Howe Growers Survey that Dr Howe dismissed as being so small as to be not even worth 
mentioning).

3. There is an overwhelming preponderance of WHMs (28 anecdotes out of 30).

4. The results are affected by self-selection bias of unknown extent.

5. Dr Howe failed to provide the complete sample of responses coded to the ‘pay’ node (or at 
least a numerical analysis of all such responses), instead providing a hand-picked sub-sample 
with an ipse dixit assertion that this sub-sample is ‘representative’.145

[169] The AFPA concedes that Dr Howe’s qualitative data: 

‘does evidence earnings of WHMs to some extent but, even in relation to that cohort, it has only 
minimal probative value due to the other deficiencies summarised above and explained in more 
detail at [100]-[101] of the AFPA Closing Submission’.146

[170] 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 

145 Australian Fresh Produce Alliance, ‘AFPA’s response to further questions from the Commission’, Submission in 
Horticulture Award 2020, AM2020/104, 30 July 2021 at [2] (‘AFPA’s response to further questions from the 
Commission, 30 July 2021’) .

146 Ibid at [4]








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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]

[171] Mr Houston describes himself as a ‘consulting economist’ and a ‘competition 
economist’147 and states that his primary area of expertise is in the economic analysis of 
markets.148 In the course of cross-examination Mr Houston acknowledged that he had not 
undertaken any primary empirical research involving a survey or focus group research in the 
past 10 years.149 

[172] Mr Houston’s practical experience in conducting surveys is quite limited. Over 10 years 
ago, Mr Houston had an involvement in consumer surveys in relation to water services in the 
ACT and the valuation of intellectual property.150

[173] In relation to the valuation of intellectual property Mr Houston was engaged to analyse 
and critique survey work which had been done by a third party, as opposed to having any 
involvement in the conduct of the survey.151

[174] In relation to the study of household consumers of water services in the ACT Mr 
Houston was the project leader and in that capacity worked ‘with people who took special or 
particular responsibility for the design of the survey, and the choices that needed to be made 
about sample sizes, and all aspects of the project’152 but that: 

‘the actual task … of running the focus groups and the actual on the ground undertaking of the 
survey work was done by parties contracted from outside.’153

147 Transcript, 20 July 2021 at PN3708 (cross-examination of Mr Houston).
148 Transcript, 20 July 2021 at PN3709 (cross-examination of Mr Houston).
149 Transcript, 20 July 2021 at PN3719 (cross-examination of Mr Houston).
150 Transcript, 20 July 2021 at PN3721 (cross-examination of Mr Houston).
151 Transcript, 20 July 2021 at PN3723 (cross-examination of Mr Houston).
152 Transcript, 20 July 2021 at PN3734 (cross-examination of Mr Houston).
153 Transcript, 20 July 2021 at PN3737 (cross-examination of Mr Houston).








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[175] Mr Houston’s evidence does not disclose any particular experience or expertise in 
respect of qualitative research.

[176] Turning to the ‘deficiencies’ in the qualitative data identified by the AFPA and Mr 
Houston, it is uncontroversial that nearly all of the employee interviewees were WHMs; a point 
acknowledged by Dr Howe in cross-examination.154

[177] Similarly, it is not seriously disputed that the results may have been affected by self-
selection bias, to an unknown extent. However, the point advanced by the AFPA overstates the 
matter – it submits that the results ‘are affected by self-selection bias’. In our view the 
submission advanced is too definitive. The project team took a number of steps to minimise 
self-selection bias in the interviews and focus groups, in particular:

 the recruitment advertisements were neutrally phrased and only asked ‘Have you 
worked on a farm in Australia’;

 participants were provided with a $25 Woolworths or Coles voucher to turn up to a 
focus group interview; and

 the project team worked closely with growers.

[178] In relation to the last point, Dr Howe’s evidence was that the researchers’ engagement 
with growers may have led to self-selection bias of a quite different nature to that suggested by 
the AFPA:

‘I think the self-selection bias may have been workers who growers themselves arranged for us 
to meet.  For example, in many of the locations that I went to, the growers were very helpful in 
enabling us to meet in their lunch room and to conduct a focus group with workers.  ...

Growers are very busy people, so they don't tend to want to do those things.  So the growers that 
self-selected into our research tended to be more compliant growers, I would say.  And they 
themselves extended the invitation to their workers, to say, 'In your lunch break, would you like 
to do this focus group? ...

So if anything, the self-selection may have been the other way, so we took that into account in 
our research as well.  And we also actively sought to interview local Australian workers, and 
also permanent residents as well, to ensure that we weren't just getting one particular cohort.  But 
as was acknowledged in the cross-examination, working holiday makers certainly formed a 
substantial part of the respondents.’155

[179] The AFPA’s submission that the qualitative research ‘is in effect a collection of 
anecdotes and stories’156 is just a pejorative characterisation intended to undermine the 
probative value of the research without advancing a substantive critique. As we have 
mentioned, the validity of qualitative research is widely accepted. Further, Dr Howe’s 
unchallenged evidence was that the methodology used to organise and code the interview and 
focus group transcripts ‘is an accurate and established method for analysing qualitative data in 

154 Transcript, 13 July 2021 at [980]
155 Ibid at [1008]–[1010].
156 AFPA’s response to further questions from the Commission, 30 July 2021, at [2(a)].








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the Social Sciences used for the making of generalisations drawn from patterns observed in 
case studies.’157

[180] The AFPA also submits that the ‘sample size at individual locations and overall is small 
and smaller than the pieceworker employers in the OmniPoll survey. Mr Houston advances a 
related point – that the evidence is qualitative in nature and ‘cannot be used to draw 
quantitative conclusions with any degree of statistical confidence’. These points are 
misconceived. The AFPA conflates the Durable Future qualitative research with survey based 
quantitative research – the 2 methodologies are quite different. Mr Houston’s point is, as 
counsel for the UWU put it, a straw man argument.158 No one is contending that quantitative 
conclusion with any degree of statistical confidence can be drawn from this evidence. But that 
is not to say that qualitative evidence has no probative value.

[181] The final point advanced by the AFPA is that Dr Howe only provided a ‘hand picked 
sub sample’ of the complete sample of responses with an ‘ipse dixit assertion that this sub 
sample is representative’.159

[182] The validity of conclusions based upon qualitative research can be challenged by calling 
for the records of the discussions in question. This was done in the Penalty Rates Decision in 
respect of Dr MacDonald’s qualitative study.160 In the present proceedings, the AFPA could 
have taken this course in respect of the qualitative research relied upon by Dr Howe and called 
for all of the interview and focus group transcripts, but chose not to do so. The AFPA cannot 
now be heard to complain that all of the records were not produced. Nor did the AFPA cross-
examine Dr Howe as to the basis of her assertion that the examples provided were representative 
of the complete sample of responses coded to the ‘pay’ code. We accept Dr Howe’s evidence 
as to the representative nature of the examples provided.

[183] Contrary to the submission advanced by the AFPA we have concluded that the 
qualitative research referred to in the Howe Reply has probative value and we have given it 
appropriate weight in arriving at our findings.

4.2.3 Professor Underhill’s Evidence

[184] 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).161

[185] The Underhill Report presents data from Dr Underhill’s own data on piecework rates 
paid to horticulture workers, referred to as Research Project 1 and Research Project 2. 

157 Howe Reply [15]
158 Transcript 13 July 2021 [169]
159 AFPA’s response to further questions from the Commission, 30 July 2021, at [2(e)].
160 Penalty Rates Decision at [595]–[609].
161 Exhibit AWU 16.








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55

[186] Research Report 1 is the subject of a published article by Professor Underhill and 
Malcolm Rimmer titled ‘Layered Vulnerability: Temporary migrants in Australian 
horticulture’.162 

[187] Research Report 2 is the subject of an article by Professor Underhill and others titled 
‘Using social media to improve temporary migrant workers’ access to information about their 
employment rights’.163

[188] The Underhill Report states that Research Project 1 found pieceworkers earned, on 
average, significantly less than hourly paid employees.164 A similar pattern was found in 
Research Project 2.165 

[189] 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. 

[190] Dr Underhill provided a statement in response to the First Houston Report (the Underhill 
Reply). The Houston Reply includes Mr Houston’s reply to the Underhill Reply.

[191] 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.’166

[192] 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.167 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.’168

[193] In his critique of Dr Underhill’s survey methodology Mr Houston’s principal 
observations are that:169 

 the sampling methodology results in a non-representative sample, undermining its 
ability to generalise findings to horticulture workers in Australia, and

162 Elsa Underhill and Malcolm Rimmer, ‘Layered vulnerability: Temporary migrants in Australia horticulture’ (2016) 58 
Journal of Industrial Relations 5, 608-626. See also CB2207.

163 Elsa Underhill, Sherry Huang, Sohoon Yi and Malcolm Rimmer, ‘Using social media to improve temporary migrant 
workers’ access to information about their employment rights’ (2019) Journal of Australian Political Economy 84, 147-
174. See generally, Transcript, 15 July 2021 at PN1120–1128.

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]. 








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 the research suffers from self-response bias. 

[194] At [35] of the Houston Reply (addressing the Underhill 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.’ 

[195] 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] 

[196] 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 are in fact reflective of the entire population of the horticulture industry in 
Australia.’170

[197] The AFPA contends that it is open to the Commission to find that some employers in 
the industry set their pieceworker 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.171  As to Dr Underhill’s evidence, the AFPA accepts that:

‘Dr Underhill’s data is probative of the Underhill Relational Earnings Finding in relation to 
WHMs (that is, probative of the proposition that the median earnings of WHMs working in 
horticulture are lower for WHMs engaged on a piecework basis compared to those engaged on 
hourly rates). Even in relation to that finding, its probative value is diminished by the defective 
design of the questions, which is likely to skew down the reported pay outcomes for 
pieceworkers.’172

[198] In her expert report, Dr Underhill compares the hourly earnings of employees on an 
hourly rate with an estimate for the hourly rate equivalent wage for employees on a pieceworker 
rate. In making this comparison, Dr Underhill relies on the findings from Research Project 1 
and Research Project 2.

[199] Research Project 1 is the only major academic survey to collect data on pieceworker 
earnings in horticulture in Australia. The second research project collected data from a smaller 
number of horticulture workers. Research Project 1, conducted in 2013/2014, found 

170 AWU submission, 26 July 2021 at [52]. 
171 AFPA closing submission, 26 July 2021 at [27(b)].
172Australian Fresh Produce Alliance, ‘AFPA’s submission addressing the Campbell Article (AWU-30)’, Submission in 

Horticulture Award 2020, AM2020/104, 30 July 2021 at [8].








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pieceworkers earned, on average, significantly less than hourly paid workers. The table below 
is derived from Table 3 at [24] of the Underhill Report (Exhibit AWU 16).

Table 1: Underhill Research Project 1
Average hourly earnings for harvest workers, 2014 (n=278)

Mean Median Minimum Maximum Award 
minimum

Payment method

Paid by the hour (time 
wages) (n=158)

$16.20 $18.00 $3.00 $28.25 $16.87

Paid piece rates
(n=120)

$11.69 $12.00 $2.00 $30.00 $19.40*

t(276)= 7.589, p = 0.000 *average competent worker

[200] On the basis of this data Dr Underhill states:

‘Piece rate average earnings are well below the earnings of hourly paid workers, and only 60% of 
the amount an “average competent worker” would be expected to earn. There is also high 
variance in hourly earnings, with the lowest average hourly rate for piece rates being $2.00 and 
the maximum $30.00 per hour. A range of factors impact the productivity of harvest workers, 
such as experience, equipment, and the type and quality of the product picked. However, the low 
average pay of piece workers suggests that farmers and contractors fix piece rates too low on the 
basis of exaggerated performance expectations of the “average competent worker”.’173

[201] A similar pattern was found in Research Project 2 conducted in 2017/18. The table 
below is derived from Table 4 at [26] of the Underhill Report (Exhibit AWU 16). 

Table 2 Underhill Research Project 2
Average hourly earnings for harvest workers, 2018 (n=81)

Payment 
method

Mean Median Minimum Maximum Award 
minimum

Paid by the hour 
(time wages) 
(n=53)

$21.03 $22.13 $10.00 $26.00 $22.86

Paid piece rates 
(n=28)

$16.28 $15.00 $5.00 $25.00 $26.29*

t(35.51)= 4.156, p = 0.000 *average competent worker

[202] It is not necessary for us to traverse all of Dr Underhill’s evidence.

173 Exhibit AWU 16 at [25]








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[203] We acknowledge that there are limitations in the data presented in the Underhill Report, 
as contended by the AFPA. Despite these limitations, the data supports a finding that the median 
earnings of WHM’s working in horticulture are significantly lower for WHM’s engaged on a 
piecework basis compared to those engaged on hourly rates. Further, we think it likely that the 
mode of engagement is one reason for the disparity, along with other factors, such as 
experience.

4.3 The NFF Survey and Employee Questionnaire

[204] The NFF conducted a survey between 16 April 2021 and 10 June 2021 (the NFF 
Survey). The NFF Survey questions were prepared by Mr Ben Rogers, General Manager 
Workplace Relations for the NFF.174 The survey was distributed to State-based farming bodies 
and commodity groups, who in turn distributed it to their farmer members.

[205] There was a media release about the NFF Survey on the NFF’s website175 and it was 
promoted in an NFF newsletter.176

[206] The NFF document also contains the following statement: 

‘The AWU has recently launched an application in the Fair Work Commission to effectively 
abolish piece rates, raising concerns among some growers that they will be forced to massively 
reduce the number of workers they employ during peak seasons or else consider selling up 
entirely.’ [Emphasis added]

[207] We return shortly to the characterisation of the Application. 

[208] The NFF Survey could be completed via a link on the NFF’s website and NFF social 
media sites (Facebook and Twitter). 

[209] One of the documents distributed by the NFF is titled ‘Growers and farm workers asked 
to help protect piece rates’;177 that document concludes with a link to the survey, as follows: 

‘If you are a worker or grower in the horticulture sector who has paid or been paid by piece-rate, 
we want to hear from you. Please consider completing the survey here 
https://www.surveymonkey.com/r/58BT8Y5 and sharing it with your networks and industry 
contacts.’ [Emphasis added]

[210] It is not possible to identify the number of persons to whom the NFF Survey link was 
sent. Some 196 survey responses were received; but not all respondents answered every 
question. The NFF Survey results are set out at Attachment F to Mr Rogers’ witness 
statement.178

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.








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[211] Questions 11, 12 and 13 of the NFF Survey are directed to growers and ask questions 
relating to the earnings of pieceworkers on the grower’s farm. 

[212] Question 11 asks ‘What is the average weekly earning of a piece-rate worker on the 
farm?’ No data is provided as to the number of hours worked to attain the ‘average weekly 
earning’ and hence the responses to this question provide no indication of the average hourly 
earnings. 

[213] Question 12 asks ‘What is the proportion of piece-rate workers who make less than 
$24.80 an hour?’ The casual rate for a level 1 employee under the Horticulture Award is $24.80 
an hour. Of the 196 total responses to the survey, there were 109 responses to this question and 
87 survey respondents chose not to answer. The results are shown in Chart [1] below: 

Chart 1: Responses to Q12 of the NFF Survey
(Proportion of piece rate workers who make less than $24.80/hr)

Source: Exhibit NFF3, Witness Statement of Ben Rogers, Attachment ‘F’.

[214] The amount of $24.80 an hour corresponds to the minimum hourly rate for a Level 1 
casual employee under the Horticulture Award at the time the NFF Survey was conducted. 
About 30% of those who answered the question indicated that none of their pieceworkers earned 
less than $24.80 per hour. The remaining growers (69.72%) responded that a proportion of their 
pieceworkers earned less than $24.80 an hour. Just over 20% of the responses report that more 
than 1 in 5 of their pieceworkers earn less than $24.80 an hour. 

[215] Question 13 asks ‘What is the proportion of piece rate workers who make more than 
$28.00 an hour?’ The amount of $28.00 an hour does not correspond to any particular minimum 
hourly rate under the Horticulture Award. The piecework rate prescribed by clause 15.2(b) for 
the average competent Level 1 casual employee is $28.52 per hour. 


0% 1% to 10% 11% to 20% 21% to 30% 31% to 50% 51% to 75% more than 75%. 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%




 



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[216] During cross-examination Mr Rogers explained the $28 an hour amount was intended 
to approximate the casual rate for a Level 1 employee plus 15 percent but that the clause 15.2(b) 
piecework rates were lower when the NFF Survey was being drafted as it was before the 
increase determined in the 2020-21 Annual Wage Review decision.179 We note that contrary to 
Mr Rogers’ assertion the clause 15.2(b) piecework rate for the average competent Level 1 
casual employee was $28.52 at the time the NFF Survey was distributed. 

[217] Of the 196 total responses to the survey, there were 108 responses to this question and 
88 survey respondents chose not to answer. The results are shown in Chart [2] below: 

Chart 2: Responses to Q13 of the NFF Survey 
(Proportion of piece rate workers who make more than $28/hr)

Source: Exhibit NFF3, Witness Statement of Ben Rogers, Attachment ‘F’.

[218] 10 of the 108 (9.26%) responses to this question said that none of their pieceworkers 
make more than $28 per hour. The remaining growers (90.74%) responded that a proportion of 
their pieceworkers earned more than $28 per hour. 

[219] About half of the growers who answered this question (61/108: 56%) reported that more 
than half of their pieceworkers earned more than $28 per hour. A limitation with this data is 
that we don’t know how much more than $28 per hour these pieceworkers earned. They may 
have earned substantially more; or alternatively, only marginally more than $28 per hour 
(indeed a proportion may earn more than $28 per hour but less than $28.52 per hour). 

[220] Question 18 asks ‘As an employee paid by piece-rate, what are your typical weekly 
earnings per hour?’

179 Transcript, 15 July 2021 at PN1958.


0% 1% to 10% 11% to 20% 21% to 30% 31% to 50% 51% to 75% more than 75%. 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%




 



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[221] Some 8 employees answered this question. The results are shown in Chart 3 below:

Chart 3: Responses to Q18 of the NFF Survey 
(As a piece rate worker what are you typically hourly earnings)

Source: Exhibit NFF3, Witness Statement of Ben Rogers, Attachment ‘F’.

[222] Five of the 8 employee responses reported earning less than $25 per hour when paid by 
pieceworker rates; 4 of those 5 earned less than $15 per hour. 

[223] As mentioned earlier, it is not possible to identify the number of persons to whom the 
NFF Survey link was sent. Accordingly, it is not possible to identify the response rate. This is 
one limitation on the data. 

[224] Further, there is nothing before us to suggest that the responses to the NFF survey were 
drawn from a random sample of the population of interest (that is all growers and pieceworkers 
in the horticulture industry). The NFF has adduced no evidence about the extent to which the 
sample data from its survey reflects the population of interest, namely all horticultural workers 
and growers. 

[225] In addition, non-response bias may have affected the survey results. Potential 
respondents could choose whether to participate in the NFF Survey, and therefore not all of 
those who were aware of the survey may have responded. And, of those who did respond some 
chose not to answer all survey questions. Non-response bias may mean that the responses of 
the survey respondents are not representative of the Survey population.


$10 or less $11 - $15 $16 - $20 $21 - $25 $26-$27 $28- $30 $31 - $35 more than $35 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%




 



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62

[226] The NFF Survey may also be affected by self-selection bias. The note at the beginning 
of the NFF Survey stating that the NFF is opposing the Application could also possibly lead 
those with stronger views on the subject to respond to the Survey. 

[227] Finally, the NFF Newsletter titled Growers and farm workers asked to help protect piece 
rates states that the aim of the NFF Survey is ‘to confirm the importance of pieceworker rates 
as a payment model.’180 The Newsletter also mischaracterises the Application, stating that ‘the 
AWU has recently launched an application in the Fair Work Commission to effectively abolish 
piece rates’. As we mentioned, this statement is misleading. These contextual considerations 
may also have affected the results and heightened the rate of self-selection bias. 

[228] The NFF contends that the NFF Survey results ‘should be given considerable weight 
given that it is a voluntary anecdotal statement from those who were motivated to 
participate’.181

[229] In its closing submission on the evidence, the AFPA submits that the NFF Survey 
‘suffers from issues such as self-selection bias’ and is of ‘limited probative value’.182

[230] The NFF Survey was distributed to State-based farming bodies and commodity groups, 
who in turn distributed it to their farmer members. The link to the NFF Survey could be 
forwarded and shared with others who could then complete the survey – indeed the NFF 
encouraged its members to do so. Accordingly, it is not possible to identify the number of 
persons to whom the NFF Survey link was sent, and nor is it possibly to identify the response 
rate.

[231] The NFF does not suggest that the NFF Survey was of a random stratified sample of the 
relevant population. Nor is it suggested that the results can be extrapolated to the horticulture 
industry as a whole.

[232] The NFF Survey results provide some indicative anecdotal data but cannot be said to be 
representative of the views of all of those in the horticulture industry.  

[233] In addition to the NFF Survey, the NFF emailed its members and a number of growers 
the document (the NFF Employee Questionnaire) as set out below [Emphasis added]: 
 

AWU – Horticulture Award 2020
Application to install a ‘piece rate floor’

Employee Questions

The Australian Workers Union has made an application to the Fair Work Commission which will 
effectively eliminate piece work arrangements under the Horticulture Award. 

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.








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The NFF is contesting this application. The AWU’s essential claim is that piece rates are a tool to exploit 
fruit and veg’ farmworkers. That’s just not right. Although we know that some workers are underpaid – 
whether on pieces rates or not – we also know that many workers earn great money on piece rates, better 
than hourly rates. 

The NFF’s focus will be on the farm and the effect which the change could have on farm businesses, 
but we think the Commission should also be aware of the negative impact it could have on workers. 
Crucially, it may result in the removal of the requirement for growers to set a piece rate which enables 
pieceworkers to earn 15% more than the minimum wage. That is, if the AWU succeeds employees may 
be guaranteed $24.80 per hour but not have access to a piece rates which allow them to earn at least 
$27.78 per hour (and potentially much more). 

If you work on piece rates and can provide a statement which includes information about how much you 
earn and whether you would prefer hourly rates, with or without the 15% loading, please contact Ben 
Rogers at [contact details omitted]. 

1. Background
Name, age, education, farming work experience.
__________________________________________________________________________________
__________________________________________________________________________________

2. Example of roles where you were paid piece rates.
Location and crops of farm, work title and duties.
__________________________________________________________________________________
__________________________________________________________________________________

3. Piece Rate Earnings. 
Typical hourly and weekly earnings while on piece rates,
__________________________________________________________________________________
__________________________________________________________________________________

4. Piece Work.
Why you do or do not prefer piece work/rates to hourly work/rates.
__________________________________________________________________________________
__________________________________________________________________________________

5. Personal Response.
What would you do if you could not earn piece rates and/or your hours were capped?
__________________________________________________________________________________
__________________________________________________________________________________

6. Reaction to Change.
Would you be happy with the change?
__________________________________________________________________________________








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[234] This document was drafted by Mr Rogers.183 It was intended that growers/employers 
would provide it to their employees; to be completed and, presumably, returned to the NFF. 
Two of the NFF witnesses in these proceedings have attached completed responses by 
employees.184

[235] The way the NFF Employee Questionnaire is framed and the way it was distributed are 
both problematic. 

[236] The preamble to the questions provides the context – that the AWU has made an 
application to vary the Horticulture Award and the NFF is contesting that application. The 
purpose of the NFF Employee Questionnaire is made apparent by the third paragraph of the 
preamble – to make the Commission ‘aware of the negative impact it [i.e. the AWU’s 
application] could have on workers’. Plainly, the language used is intended to elicit responses 
which illustrate the ‘negative impact’ the Application could have on workers. 

[237] The preamble also mischaracterises the Application. It says that the Application:

 will effectively eliminate piecework arrangements under the Horticulture Award, and

 may result in the removal of the requirement for growers to set a piece rate which 
enables pieceworkers to earn 15% more than the minimum wage.

[238] Mr Rogers was cross-examined in respect of these issues,185 and he confirmed that he 
drafted the NFF Employee Questionnaire, including the preamble.186 Mr Rogers conceded that 
the Application does not seek to prohibit piece rates,187 and that it is not part of the Application 
to remove the request for piece rates so as to enable the average competent pieceworkers to 
earn 15% more than the minimum wage.188 Despite these concessions, Mr Rogers denied the 
statements to the contrary made in the preamble to the NFF Employee Questionnaire were not 
true and did not accept that the preamble was materially misleading:189

‘And in those two respects you were making statements in this questionnaire descriptive of the 
application which were not true.  Correct?---No.

All right?---I didn't say that that was the application, I said that that may be the result, which is 
still to my mind a possibility.

Could I just put to you that you were - that these questions were - sorry, the introduction to the 
questions was materially misleading as to what the AWU was seeking to achieve in the 
application?---Don't accept that, no.’

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. 








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[239] This aspect of Mr Rogers’ evidence is wholly unconvincing and, in any event, Mr 
Rogers’s opinion of the statements made in the preamble to the NFF Employee Questionnaire 
is not relevant. We can determine for ourselves whether the statements made were misleading 
or untrue, by simply reading the document and the Application. 

[240] In our view, the first statement set out at the first dot point in [236] above is misleading 
and the statement set out at the second dot point in [236] is purely speculative.

[241] As to the first statement, the expression ‘effectively eliminate’ is vague. It is unclear if 
it is speaking of the legal effect of the Application, or what may be perceived to be the practical 
outcome if the Application is granted. It plainly has the potential to mislead. It was understood 
by at least one of the recipients of the NFF email — Ms Distill, an orchardist from Tasmania 
— that the Application was intended to prohibit the use of pieceworker rates.190

[242] The second statement is mere speculation. No party is contending for the removal of the 
requirement for growers to set a pieceworker rate enabling pieceworkers to earn 15% more than 
the minimum wage. 

[243] The way in which the NFF Employee Questionnaire was distributed is also problematic. 
Ms Distill’s evidence is relevant in this regard. 

[244] Ms Distill employs 27 ongoing employees on her Tasmanian orchard, and her seasonal 
workforce can increase to about 160 employees over the course of the season when up to 120 
are employed at any one time.191 About 40% of Ms Distill’s seasonal harvest employees are 
local residents who return year-on-year, and the remaining are backpackers/WHMs and 
itinerant workers.192 

[245] Six completed NFF Employee Questionnaires are attached to Ms Distill’s witness 
statement. The NFF Employee Questionnaire was given to employees by Ms Distill’s orchard 
supervisor. Ms Distill was asked if it was given to all the workers and she replied: 

‘So, you identified those workers who wanted to, as you put it, write a letter in support of piece 
rates?---Not necessarily.  We didn't go out specifically asking that.  We put it out to our workers 
what was happening and, yes, most of them were quite happy to (audio malfunction).’193

[246] Later Ms Distill sought to qualify that answer:194 

‘So, you say you put it out to the workers.  How did you communicate to the workers that you 
wanted them to complete this survey document?---We gave it to the orchard supervisor.

So, you gave them to the orchard supervisor.  That was the extent of your direct involvement; 
is that right?---That's correct, yes.

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.








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What did you tell the orchard supervisor to do?---Just asked him if he would talk to the workers 
of the orchard and anybody that was happy to do what we've done and they gave it - they took 
it from there.

All right.  That is, you were telling them to ask the workers to fill in this survey if they were 
supporting you; is that right?---No, it was not a directive or anything like that, it was - it was, 
"If you would like to fill this out, feel free to fill it out; is you don't want to fill it out or don't 
want to do anything with it, you don't need to."’

[247] Plainly not all employees were given a copy of the NFF Employee Questionnaire by Ms 
Distill’s orchard supervisor. We note that letters of support accompany the completed NFF 
Employee Questionnaires attached to Ms Distill’s statement. We think it is a reasonable 
inference from the evidence that only those employees who agreed to write a letter supportive 
of pieceworker rates were given a copy of the NFF Employee Questionnaire to complete.

[248] Some 16 completed NFF Employee Questionnaires are attached to Mr Moss’ witness 
statement.195 Mr Moss’ evidence was that he provided the Questionnaire to some of his 
employees but could not recall the date on which he did so.196 All of the employees were SWP 
employees. 

[249] Mr Moss did not direct the employees as to how they were to answer the NFF Employee 
Questionnaire and could not recall if he explained his understanding of the Application to the 
employees when he provided them with the Questionnaire. Mr Moss did not see the employees 
answer the NFF Employee Questionnaire and did not know if they answered the Questionnaire 
together.197

[250] The contextual issues discussed above have led us to attribute no weight to the NFF 
Employee Questionnaire. The overall impression created by the preamble is that the 
Application will eliminate piecework arrangements and that workers will not be able to be 
engaged on pieceworker rates and hence be unable to earn more than the minimum wage. The 
Application seeks to do no such thing.

[251] It is reasonable to assume that the employees who completed the survey may have been 
influenced by the misleading statements in the preamble and gave their answers accordingly. 

[252] Further, the NFF Employee Questionnaires attached to Ms Distill’s statement may have 
been affected by self-selection bias given that only those employees who agreed to write a letter 
supportive of pieceworker rates were given a copy of the Questionnaire to complete. 

[253] Finally, in respect of the 16 completed NFF Employee Questionnaires attached to Mr 
Moss’ statement, we do not know if these Questionnaires were even completed by horticulture 
workers as Mr Moss did not see the employees answer the Questionnaire.

[254] It is convenient to deal here with the employee letters of support attached to Ms Distill’s 
statement. One of the letters states:

195 Exhibit NFF9, Attachment A. 
196 Transcript, 16 July 2021 at PN2754–5. 
197 Transcript, 16 July 2021 at PN2765–9.








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67

‘TO WHOM IT MAY CONCERN

My name is [redacted] I have worked for Spreyton Fresh for over a decade on a seasonal basis 
picking both cherries and applies, on piecework rates. 

As an experienced picker my average is 5-6 bins of apples per day. Picking on piece work rates 
has always enabled me to earn well above award wages throughout the apple & cherry seasons. 
Working in this way has given me the flexibility to work at my own pace and be able to run a 
household and juggle other family commitments. 

This has enabled me to contribute to our family’s overall income with no need to work on a 
fulltime basis. 

If the Award is changed, and pickers who are under performing are getting topped up to the 
daily award rate, essentially being paid for being on site, not for the work they have done. There 
will no longer be an incentive for me to pick fruit.

If you require further information from me, I can be contacted on the numbers above and would 
be happy to speak with you if required.’198

[255] The next 4 letters follow the same format – the first paragraph sets out the employee’s 
name and that they have picked fruit on Ms Distill’s orchard, on piecework rates. The letters 
next set out the employee’s satisfaction with the piecework arrangements. Three of the letters 
use the following words:

‘… piece work rates enables me to earn above award wages throughout the harvest seasons. This 
increases my total income for the year and allows me to be financially independent…’

[256] The highlighted paragraphs in the first letter are common to the first 5 letters of support. 
These letters were all typed in the office at Ms Distill’s orchard. Ms Distill described the process 
during her cross-examination:199

‘Firstly, the first stage in the process was that some employees completed the questionnaire.  You 
then brought them into the office, did you, and spoke to them?---We had a meeting, yes, we had 
a group meeting and it was discussed because a lot of - well, some of the people that we employ 
don't have access to computers or don't have access to that type of thing, so it was a meeting and 
we spoke about what the questions had been asked and then we drafted the letters, they went 
back out to the pickers and we made changes if they needed to be made and then they were 
signed.

When you say "We drafted the letters", that is, did you do that?---We drafted the letters together 
collectively, the people that had filled out the questionnaires and myself.

I'll take it one step at a time.  There was a group meeting of all the people who had filled out the 
questionnaires; is that right?---That's correct, yes.

198 Exhibit NFF 13, Attachment C; CB3037.
199 Transcript, 16 July 2021 at PN3024–31.








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68

At which you suggested that they sign a letter as well; is that right?---I asked them if they were 
prepared to do that and they said, yes, they would.  So, then we discussed about - then we 
discussed what we were going to put in the letter and that's essentially what we have done.

So you then went back to the office and typed up a letter and some changes were made and you 
printed out the appropriate one for each person and they signed it; is that right?---Yes.

There's some marginal differences between some of them, but generally they're much the same; 
is that right?---Yes, that's correct.

The particular concern that you understood the workers had was that if they no longer had access 
to piece rates and could only earn hourly rates, that they might not work as hard; is that 
right?---Yes.

They wanted to continue to have the opportunity to do piece rates and to earn more than the 
hourly rate of pay?---That's correct, yes.’

[257] The last employee letter of support is in a different format and states, relevantly, ‘Being 
on piecework rates suited me. I was averaging 4 bins per day, then had the flexibility to finish 
up early to work casual shifts hairdressing which worked very well.’200

[258] We do not propose to attribute any weight to the employee letters of support attached to 
Ms Distill’s statement given the manner in which the employees were selected and the 
misleading information provided to them about the Application. As we have mentioned the last 
employee letter of support is in a different format but does not say anything about the quantum 
of pieceworker rates paid to the writer and says nothing of relevance to the Application. 

4.4 OmniPoll Survey

[259] Appendix C to the Durable Future report sets out the results the OmniPoll Survey,201 a 
national survey of vegetable growers undertaken between 17 August and 6 September 2016.202

[260] OmniPoll started by obtaining the contact details of 1,552 vegetable growers from peak 
industry associations. After excluding businesses that were not vegetable growers and 
businesses that could not be contacted or who did not complete their interviews, OmniPoll was 
left with 401 confirmed vegetable grower contacts.203 

[261] The OmniPoll Survey asked a question about the hourly rates paid for ordinary time and 
for an average competent pieceworker. Data was collected from interviews completed with 252 
growers who had hired or paid pickers, packers or graders in the past 5 years. There were 63 
responses from growers who employed pieceworkers.

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.








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[262] In respect of pieceworkers, the respondents were asked to state the hourly rate they pay 
‘to an average competent adult worker’. 

[263] The method for determining whether the respondent was paying above or below award 
rates is explained in the OmniPoll Report: 

‘Assuming that (i) respondents provided accurate rates, and (ii) the rates related to the full time, 
part time or casual workers they report as ‘mostly’ employing, it can be determined if a given 
grower pays below the award. The criteria used for paying below the award were (i) under $17 
for full/part time workers; (ii) under $22 for casuals.’204 (Emphasis added)

[264] As mentioned above, respondents were asked to state the hourly rate paid to an ‘average 
competent adult’ pieceworker. Clause 15.2(b) of the Horticulture Award provides the 
pieceworker rate must enable the average competent worker to earn at least 15% more per hour 
than the minimum hourly rate. At the time the OmniPoll Survey was conducted the Level 1 
‘average competent’ casual pieceworker award rate was $25.44; the minimum hourly rate for a 
Level 1 employee was $17.70 for a full time and part time employee and $22.13 for casuals.205

[265] Based on the methodology referred to above, 17% of the respondents were classified as 
paying below the award for hourly rates and 15% of the respondents for piece rates, as shown 
in Table 3 and Chart 4 below.

Table 3: Growers who pay/hire pickers, packers or graders with piece rates206

204 Ibid at 39, 47.
205 PR579790.
206 OmniPoll Report at 39, 47.






 Paying with piece rates Caution: small sample sizes! NO. EMPLOY IN PEAK SEASON TOTAL 20 20+ (Sample size n=) (63) (30) (33) % % % Pay below award 15 24 5 Pay award or higher 65 56 74 Not determined 20 20 21 Total 100 100 100 



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Chart 4: Piece rates and rates paid per hour207

[266] Four things may be said about these results: 

1. The sample size in respect of growers engaging pieceworkers is quite small and the 
OmniPoll Report contains a warning note to that effect. 

2. The 15% of growers paying pieceworkers less than the minimum hourly rate for a Level 
1 casual employee may understate the extent of non-compliance. The 15% figure is 
based on the proportion of respondents paying less than $22 an hour. The relevant 
minimum award rate is $22.13 an hour. Depending on the rounding rules applied by 
OmniPoll (which are not disclosed) a further 8% of respondents (i.e. 23% in total) may 
have paid their pieceworkers less than the minimum award rate. 

3. The results may be affected by non-response bias. Some 20% of responses are 
categorised as ‘not determined’. It cannot be assumed that this 20% could be distributed 
in the same way as the distribution of the sample for which an answer could be 
determined (i.e. 65% paying the award rate or higher). Growers would be reluctant to 
answer questions that might incriminate them and hence it is more likely that a 
significant proportion of the non-responses were from those growers paying below 
award rates; a point we return to shortly. 

4. Depending on the rounding rules, some 51% of respondents were paying pieceworkers 
$25 an hour or less, which is below the ‘average competent’ pieceworker rate at the 
relevant time ($25.44 an hour).

[267] The OmniPoll Survey also asked growers using piece rates the following question: 
‘when you pay piece rates, do you have a written agreement with workers that specifies the rate 
of payment for them in writing?’208

207 Ibid.
208 Ibid at 38, 46.

1 1 4 4
8 9

37

10

4 5 2 5 5 42

6

4
3

8
12

1

15

28

17

4

0

5

10

15

20

25

30

35

40

$15 $15 $16 $17 $18 $19 $20 $21 $22 $23 $24 $25 $26 $26 Can't 
say

Refused

Paying by the hour Paying with piece rates

Per cent








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[268] About half of the 63 growers paying piece rates (48%) claimed to have a written 
agreement with workers that specifies the rate for them in writing, with a written document 
more likely to be provided by businesses employing more than 20 employees.209

[269] There are significant limitations in the OmniPoll data.

[270] In cross-examination, and in the Howe Reply, Dr Howe identified numerous limitations 
with the OmniPoll Survey, including that OmniPoll noted that due to the small sample size of 
respondents to this question, results should be treated with caution; that OmniPoll advised Dr 
Howe and her research team that that particular finding was not robust; and that ‘it is well 
known that survey respondents typically don’t answer surveys in a way that incriminates 
them.’210

[271] Dr Howe states that the OmniPoll Survey of vegetable growers is ‘not particularly 
useful’ for ascertaining wages received by pieceworkers, because, in summary terms:211   

 the Survey has limitations, which are typical of most survey research; 

 the nature of the industry (seasonality, geographical dispersion, reliance on 
contractor, largely temporary migrant workforce, presence of undocumented 
workers) means it is difficult to quantify piece rates or undertake a representative 
survey;

 it would be difficult to use a quantitative survey to assess whether piece rate workers 
are being underpaid as this hinges upon average competency – even if a survey found 
that a large proportion were being paid under the award hourly rate, this does not 
necessarily mean that these workers were paid in breach of the award; 

 the small sample size in relation to the piece rate question limits the meaningfulness 
of the Survey results; 

 survey respondents are unlikely to self-report non-compliance with the requirements 
of the Award; and

 the Survey does not include labour hire contractors, which are prevalent in the sector 
and where problems of non-compliance are concentrated.

[272] Mr Houston agreed with Dr Howe’s identification of the limitations of the OmniPoll 
Survey,212 and that the Survey was not representative of horticulture growers because it 
excluded fruit growers.213 There was no dispute between Dr Howe and Mr Houston that the 
Omni Poll survey has significant limitations.

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).








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[273] The AFPA submits that the OmniPoll Survey is, despite its limitations, ‘the least bad 
piece of evidence in this case’ and that: 

‘This data source is less unrepresentative of the industry as a whole than the other data sets and 
shows that the pieceworker earnings in the industry are likely to be much better than the Union 
Parties’ evidence suggests.’214

[274] We do not accept the AFPA’s characterisation of the OmniPoll survey as the ‘least bad 
piece of evidence about pieceworker earnings’. The use of different methodologies in the 
various surveys and qualitative research to which the AFPA referred renders such a comparison 
meaningless — the AFPA is comparing apples with oranges.

[275] We acknowledge that the OmniPoll Survey has limitations. As the OmniPoll Survey 
Report authors themselves noted in respect of the limitations of the data:

‘the sample frame covered only a particular subset of the entire vegetable grower population of 
around 4000. It is unknown how this subset may differ from the entire population. Consequently, 
the survey should be considered as a survey of this population subset, rather than a survey of the 
entire population.’215

[276] The limited sample size in respect of the data referred to above is an additional 
significant limitation.

[277] Further, it is likely that the growers surveyed would be reluctant to answer questions 
which may incriminate them and hence the robustness of the results of the pay rate question 
may be affected by non-response bias. 

[278] In this context we note that the OmniPoll Survey also asked the 252 growers who paid 
or hire pickers, packers or graders about their perceptions about the prevalence of growers 
paying below the award rate and whether they had paid below the award rate themselves. The 
question asked was: 

‘Some farmers have said that, for a variety of different reasons, they pay pickers, packers or 
graders below the award rate. Would you say it is very common, quite common or not common 
for farmers in your industry to pay below the award?

In the last 5 years, have there been any occasions when you’ve paid below the award rate 
yourself?’216

[279] A quarter of growers believed it was very or quite common for farmers in their industry 
to pay below the Award, but only 5% admitted to doing so themselves in the previous 5 years.217 

4.5 Piecework in Horticulture

214 AFPA closing submission, 26 July 2021 at [47]. 
215 OmniPoll Report at 8, 16.
216 Ibid at 39, 47.
217 Ibid.








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[280] The characteristics of the horticulture workforce render it vulnerable to exploitation. As 
mentioned in section 3.1 of this decision, work in the horticulture industry is labour intensive 
and seasonal. There is a high proportion of casual and contract labour; workers engaged during 
harvesting season are likely to be remunerated by pieceworker rates. Temporary migrant 
workers constitute just over half of the total workforce and more than half of the seasonal 
harvesting workforce. 

[281] In this section we canvass the lay employee and employer witness evidence concerning 
piecework in the horticulture industry, in particular:

 the remuneration of pieceworkers; 
 the practical operation of clause 15.2 of the Horticulture Award; and
 the consequences of granting the Application.

4.5.1 Piecework remuneration

A Employee Lay Witnesses

[282] The Union parties tendered evidence from a number of employee lay witnesses. The 
witnesses describe their experience either working in the Australian horticulture industry, or as 
union officials representing such workers. The evidence presents a picture of significant 
underpayment of pieceworkers in the horticulture industry. A number of employee lay 
witnesses have spoken of their own experiences:

 Chee Sing Ee218, who worked in the Australian horticulture industry from 2016 to 
2019,219 states:

‘I did grape leaf-plucking in Mildura from November 2016 till January 2017. It was a 
piece-rate job, and I was paid $0.40 for completing one tree. At the end of the day, I 
should have been paid about $25. However, I was not paid at all in the beginning … 

… my pay was not even enough to pay for the accommodation and transport. Therefore, 
the contractor did not pay me at all in the first six weeks. The contractor said he would 
not pay me until my salary exceeds the rent and bills.220 

Between January and April 2017, Ms Ee picked grapes: 

‘My remuneration for grape-picking was based on a piece rate of $2.10 per box. A box 
is 10 kilograms of grapes. During this period, I could make between $60 to $80 per 9-
hour day. I was paid cash with no payslip or superannuation. Some workers made a bit 
more money because they had years of experience in picking. But only about 10% of 
them could earn more than $20 per hour.’221 

Ms Ee also picked grapes between January and May 2018: 

218 Exhibit AWU 1.
219 Ibid at [3].
220 Ibid at [7], [9].
221 Ibid at [10].








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‘My picking skill progressed so that I could earn approximately $200 in cash per 10- hour 
day. Half of my co-workers earned less than $100 per day, and the other half made 
between $100 and $200 per day.’222

Between November and December of 2018, Ms Ee picked grapes in St George, 
Queensland but due to the high temperatures ‘could only make about $60 per day’.223 

In 2019 Ms Ee worked as an orange picker in Mildura. The pieceworker rate was $25 
per bin; about 800 kilograms of oranges: 

‘I could earn barely $50 per 10-hour day in the first few months. The maximum I could 
earn was $140 per day at the end of the period, not only because my skill progressed 
but also because the amount of fruit increased.’224

 Hsu225 describes working as a pieceworker picking oranges in Renmark South 
Australia and being paid $25 per 800kg bin. 

‘In the beginning, I could only gather a bin of oranges, so my daily income was $25. I 
had to pay rent of $110 and bills at the same time. To save money, my friends and I did 
dumpster diving after the closure of supermarkets.

I became quick after three months so I could earn about $120 a day.’226

 Niko Karhu227 was paid $36.75 for a day’s work picking tomatoes, which worked out 
to be $5.25 per hour. The following day he picked chillies: 

‘After about an hour of picking I asked the other workers how many buckets they had, 
and it turned out that we were all picking at around the same rate, with only a couple of 
workers with one more bucket than me. I was paid $38.40 for that day’s work, which 
works out to $7.68 per hour.’228 

 Rodney McDonald229 describes his experience as a pieceworker as follows:

‘When I was pruning for a piecerate in 2019, the most I ever made in a day was $160, 
working 7 hours, which works out to be about $22.85 per hour. That was the best day 
but it was only one day. The worst full day I made $76.20 working 7 hours, which works 
out to $10.80 per hour. I made under $80 or less a day on thirteen different days during 
that time. My best week that winter I earned $768, but that week included 2 eight hour 
days working hourly. My next best week – where I was just doing piecerate work – was 
$460, working three days… 

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.








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In the seven weeks that I kept a diary when I was doing work at the medium sized farm 
in 2018, the best day I had was during the second week where I strip picked 8 bins of 
peaches at $34.75 per bin for a  total $278. That was also the best week I did, where I 
made $684 working 5 days. But when we moved to pears, it was really hard to pick 
more than a couple of bins per day, and I was regularly working the whole morning and 
only getting one or two bins. I calculated using my log of hours and the amount I was 
paid that I was earning between $9.48 and $21.06 per hour over that month of picking 
pears. I earned $18 or less on eleven days during that month.’230

 Xueliang Wang’s231 first job was picking blueberries in Coffs Harbour:

‘I was paid a piece rate of $5.20 per 2-kilogram bucket. I could gather about 13 buckets 
every 6-hour day. Therefore, my daily income was about $65. However, I did not 
receive any payslips or superannuation payments.’232

He describes picking grapes in Mildura as a pieceworker on $2.20 to $3.00 (depending 
on the variety) per 9kg tray of grapes:

‘At the beginning and the end of that season I could barely make $50 per 9 hour day 
because there were not many grapes. I could make about $100 per day during the middle 
few weeks because more grapes were on the tree.’233

He also worked at a tomato farm in Coffs Harbour as a pieceworker. He was never told 
the pieceworker rate and was paid $400 for a week’s work; he worked 12 hours a day, 
7 days a week.234

 Lachlan Wakefield235 worked in horticulture between 2018 and 2020 and gave 
evidence about the earnings of blueberry farm workers:

‘Most of the blueberry farm workers told me that they were struggling to make $100 
dollars a day. The well-paid ones would make about $160 per day.’236

 ‘Witness 1’237 describes picking avocados in 2020:

‘This was a group pick, where 12 people would pick together and the total would be paid 
equally between 12 of us. We were paid $27/bin. If there was good fruit we could pick 
24 bins/day and earn around $100 each. Usually the fruit is not good quality so I could 
only make $60-70/day. I would usually work 7 days a week. My work hours would be 

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. 








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from about 7:00AM to 5:00PM, depending on weather. If it is hot I would finish at about 
1:00PM.’238

From about August 2020 until about October 2020 the witness worked at the same farm 
picking mandarins over winter: 

‘As a group we were paid $30/bin. The total bins picked will be split between a group of 
12 as well. I would earn about $120 per day working in this group size. I would usually 
work from about 7:00AM to about 5:00PM.’239

Witness 1 also described undertaking work for no pay:

‘When I picked avocados and mandarin at the farm, the supervisor would sometimes say 
to my co-workers and me: “You missed fruit. Go Back, check and pick again until they 
are cleared out from the trees”. I did not get paid for this. This job was ‘cleaning the 
trees’. Sometimes it would take up to 2 hours just to check, go through all the leaves 
and trees. I found it to be hard work for no pay. I saw other co-workers complain and 
the supervisor would yell at them, so I did not say anything.’240

Witness 1 ultimately left piecework because: 

‘the weekly pay is too low, it’s hard to make more than $900/week. Even with experience 
and working more than 12 hours a day I found it is hard to make enough. I am now 
working in an hourly paid job on a farm.’241

[283] Various AWU and UWU officials also gave evidence regarding the underpayment of 
pieceworkers:

 Suliman Ali242, an AWU Organiser, describes visiting a member in Gingin who said 
she was being underpaid:

‘She told us that she had been working at Costa Berries for about 3 months. She provided 
us with piece-rate payslips. And her rostered hours… 

When we returned to the office we calculated her hourly rate based on the number of 
punnets of blueberries picked. We calculated she was paid $5 per hour.’243

 Anthony Beven244, an AWU Organiser, gave evidence that some ‘picking workers’ 
he had dealt with: 

‘have earned good wages via piece rates, up to around $1,000 NET before deductions for 
accommodation, transport, insurance etc.

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.








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… I have also seen workers left with around $80 per week after these deductions. That 
would equate to around $350 NET for a full working week. 

On average, the workers I have observed are earning well below the minimum rate for 
an average competent piecework employee under the Horticulture Award – which is the 
permanent award rate plus the 25% casual loading plus the 15% piecework loading. 
There are very few workers reaching this level of earnings despite being competent and 
experienced.’245

 Darren Cameron,246 a Union Organiser - Snowy Mountains and Canberra with the 
AWU, gave evidence that he has ‘regularly been approached by backpackers who 
have sought help after working a 38-hour week and making less that one or two 
hundred dollars.’247

 Steven Carter,248 a NSW North Coast Organiser with the AWU, lives within the local 
blueberry industry area and says:

‘I regularly interact with countless backpackers who are engaged with Costa and other 
co-operative blueberry farms through the area.

In those discussions, I have asked about their rates of pay. Arrangements I have 
observed include:

$10 cash per hour;
Piece rate arrangements which result in $10 to $20 an hour.’ 249

 Ron Cowdrey250, a Vice President and Organiser with the AWU (NSW Branch), gave 
evidence that he had witnessed:

 ‘workers picking onions being paid $45 per crate which totals 60 buckets that 
could take up to three to four hours to pick;

 workers picking citrus in Hillston for a contractor, Prasard Management, 
receiving weekly wages of $325.50 for the week then being taxed;

 workers being paid $25 per bin to pick oranges in Griffith and completing 2 
bins per day.’251

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].








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 Philip Gourlay252, a Mildura Area Organiser with the AWU, gave evidence that he 
had recently spoken with a local worker about issues with his current employer:

‘The worker explained that in a previous job, he was being paid piece rates for picking 
table grapes and earning a total of $30 for 10 hours of work.’253

 George Robertson254, a National Coordinator with the UWU, gave evidence that the 
‘overwhelming majority’ of piece rate workers he had met ‘have been paid less than 
the minimum wage, equivalent hourly rate of pay for their level, and less than the 
amount that would “enable the average competent employee to earn at least 15% 
more per hour than the minimum hourly rate prescribed in the award for the type of 
employment and the classification level of the employee”.’255

[284] In his statement Mr Robertson records that between April and May 2019, the UWU 
undertook a survey of over 650 farm workers across Victoria and NSW (the UWU Survey). 
Most of the respondents were working in either the Sunraysia region or the Goulburn Valley 
during the main grape, apple, pear and stone fruit harvest season in those regions. The results 
of this survey were released by the union in a report called the UWU Speak Up Report, 
published in 2019. The UWU Report is attached to Mr Robertson’s statement and marked ‘GR-
1’. 

[285] The average hourly pay of all workers surveyed was $14.80; the lowest reported hourly 
wage was $4.60 and the highest was $37.50. About two-thirds (64.2%) of workers reported 
earning less than the equivalent hourly rate, which at the time the UWU Survey was conducted 
was $23.66.

[286] The average daily pay and average hourly pay for each region is set out in the following 
table:256

Table 4

Average Daily Pay Average Hourly Pay
Total $128 $14.48
Sunraysia $109.50 $14.30
Goulburn Valley $122 $15.50
Riverina $60 $18.50
Melbourne $140 $23.66

 Shane Roulstone257, a National Organising and Campaigns Director with the AWU, 
gave evidence that in his discussions with piece rates workers:

252 Exhibit AWU 7.
253 Ibid at [18].
254 Exhibit UWU 1.
255 Ibid at [7].
256 Ibid at [11].
257 Exhibit AWU 9.








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‘the vast majority of piece rates workers are paid between $8 and $12 per hour.’258

[287] A number of the Union employee lay witnesses were cross-examined as to whether they 
had made a complaint regarding the underpayment or non-payment of their wages. Similarly, a 
number of the Union officials who gave evidence were cross-examined regarding the manner 
in which they dealt with member complaints about underpayment.

[288] We accept that the various employee lay witnesses did not lodge complaints – with the 
FWO or anyone else – regarding underpayment or non-payment of wages. But in our view the 
failure to lodge a complaint does not detract from the cogency of the evidence. The witnesses 
provided plausible explanations for their failure to file such a complaint, including:

 they believed that the non-payment or underpayment was ‘a normal practice at that 
time by everybody’;259

 they were unaware that they had an entitlement to lodge a complaint or a claim;260

 the absence of proof as to the number of hours they had worked;261 and

 language barriers.262

[289] Similarly, we accept that the evidence of the various Union organisers suggests that few 
complaints are pursued through enforcement mechanisms; the witnesses gave evidence as to 
the difficulties of formally pursuing underpayment complaints on behalf of pieceworkers, due 
to the current award provisions.263

[290] In its ‘Submissions on Evidentiary Weight’, the NFF challenges aspects of the employee 
lay witness evidence called by the Unions. In essence, the NFF contends that the Commission 
‘is not assisted by evidence that is not a direct statement of the particular witness’, and that 
evidence which consists of hearsay, opinion or conclusion ‘should be given little or no weight 
in the Commission’s deliberations.’264 Further, the NFF challenges aspects of the statements of 
certain Union officials on the basis that they amount to ‘an aggregation of out-of-court 
statements’ or ‘an aggregation of some impression not set out in the statement’.

[291] The AFPA submits that the employee and employer lay witness evidence is ‘from a 
small number of witnesses hand-picked by interested parties’ and ‘has almost no probative 
value’ and ‘ought to be put to one side’.265 We note here that despite advancing this general 

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]








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submission the AFPA relies on aspects of the lay witness evidence in support of various 
findings it advances.266

[292] We have given very little weight to the hearsay evidence of the employee and employer 
lay witness. We also accept that the lay witness evidence is necessarily limited to the personal 
experience of the particular witness and cannot be extrapolated to the horticulture industry as a 
whole. Taking account of this limitation we have given the lay witness evidence some weight 
in arriving at our findings.

[293] The NFF also submits that we should adopt ‘as a whole’ the evidence of Mr Leleiga 
Fetui and Ms Akata Uata. In respect of this evidence the NFF submits: 

‘Each is a powerful statement, from a picker’s perspective about the negative consequences of 
granting the AWU/UWU application.’267

[294] Mr Fetui is employed under the SWP ‘mostly picking apples and pears’.268 Depending 
on the tasks he is performing, Mr Fetui is either paid an hourly rate or a piece rate:

‘When I am doing any work other than picking, l will be paid hourly rates of $24.80 as a Level 1 
worker under the Horticulture Award 2020. On those wages I earn roughly $800 to $900.00 a 
week.

When I am picking fruit, I am paid piece rates. In a typical week working about 38 hours, on 
piece rates I earn roughly $1,500.00 per week depending how I am feeling.’269

[295] Two payslips are attached to Mr Fetui’s witness statement, one for the week ending 4 
October 2020 (when he was paid hourly rates and earned $967.07) and the other for the week 
ending 2 May 2020 (when he was paid piece rates and earnt $1575.00).

[296] At [12] of his statement, Mr Fetui says: 

‘I would definitely not be happy if I was not able to earn piece rates for the picking or if the 
number of hours I could work each week or day was to be capped.’

[297] Contrary to the NFF’s submission, this is not a powerful statement about the negative 
consequences of granting the Application. Granting the Application will not stop Mr Fetui from 
being paid piece rates for picking fruit, nor would it cap the number of hours he can work. 

[298] Ms Uata is a volunteer member of the Multicultural Council of Griffith. She used to 
work on farms in Griffith after school ‘from time to time’, but doesn’t do farm work anymore.270 
Ms Uata states that she has ‘extended family and friends who work on the farms’:

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.








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‘An individual can earn decent income, more than minimum wage, from fruit picking work when 
they are competent.’271

[299] Ms Uata also asserts that those who work on farms doing fruit picking ‘might not have 
many other opportunities to do work elsewhere’, and that:

‘For example, I know a lot of workers from my Tongan community in the area who are slower in 
their pace of working, either due to their age, physical ability or other reasons. Farm work is 
their only option as they would not be suitable for other work. 

Should the minimum payment by hourly rate be implemented, these workers will lose the ability 
to participate in work as the farmers will likely stop employing them.’

[300] Ms Uata’s evidence does not speak to her direct experience as a horticulture worker. It 
seems to us that the evidence is similar in character to aspects of the Union’s evidence which 
was challenged by the NFF. In short, it is either opinion evidence or is conclusory in nature 
based on the aggregation of hearsay. We adopt the same approach that we took to the Unions’ 
evidence of this nature and give it little weight. 

B Employer Lay Witnesses

[301] The employer interests tendered evidence from the following employer lay witnesses:

 Matthew Benham;272

 Reginald Brown;273

 Michelle Distill;274

 Richard Eckersley.275

 Gaetano Gaeta;276

 Anthony Kelly;277

 Nicholas King;278

 Brent McClintock;279

 Jonathan Moss;280

 Anne Reardon;281

 Ben Rogers;282

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.








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 Han Shiong Siah;283

 Catherine Silverstein;284 and
 Glenn Trewin.285

[302] Some of this evidence concerned the earnings of pieceworkers:

 Mr Trewin stated that, based on pick rate records for the current financial year, the 
average competent picker would have earned $27.78 per hour if they were on a piece 
rate of 24.6 cents per bunch of baby broccoli stalks and that Bulmer Farms currently 
pays 40 cents per bunch: ‘which is well in excess of the rate which the average worker 
would to be on to earn $27.78 per hour.’286

 Mr Gaeta: ‘It is not uncommon for a large portion of our workers to pick double the 
set pick quantity (used to calculate the piece rates) and therefore earning double what 
they would have earnt on hourly rates. A competent picker can easily earn more than 
$250 for around 8 hours of work.’287

 Mr Han: ‘During harvest the workday is roughly 9 hours long, although the Pickers 
tend to select the exact start, finish, and break times which suit them best. A daily pay 
rate of $200-300 or considerably more is not uncommon.’  

Annexed and marked ‘B’ to Mr Han’s statement are copies of the anonymised payslips 
which were provided to all of his Pickers for the 6-day week commencing 25 
September 2020. All of the Pickers earned considerably more than they would have 
earned on hourly rates (assuming a 54 hour week at $24.80/hour): ‘These payments 
are representative of the amounts, and the difference in earnings, which are paid to 
piece workers throughout harvest season.’288

 Mr Moss: ‘Most of our experienced SWP workers are motivated to work and make 
money and have a number of years’ experience are actually much faster than me. 
Their minimum hourly earnings on a less productive day is $30 and they will make 
$60 on a good day.’289

 Mr Brown: ‘the top 25% of our currently employed pickers earn at least $300 per 
day, with the most productive workers earning in excess of $400.’290

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].








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[303] During the course of proceedings, the Commission issued a number of orders for the 
production of documents, records and information from certain NFF and AFPA witnesses.291  
The orders primarily sought:

 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.

[304] On 23 July 2021 the Commission published an Information Note on the piece rate 
payment data provided by Mr McClintock and Mr Kelly;292 and an Additional Information Note 
on 29 July 2021. 

[305] The parties were invited to comment on the Information Notes published on 23 and 29 
July 2021. On 6 August 2021, the NFF filed a submission in respect of this material in which it 
contends: 

‘5. In broad compass, the only findings available to the tribunal in relation to the Kelly- 
McClintock evidence is that each has complied with their respective notices to produce, by 
producing to the union parties the exhibits which have now entered into evidence. 

6. Any other conclusion or finding of fact faces the difficulty (which is outlined below) that 
other evidence which may explain the contents of the Kelly-McClintock evidence either was 
not provided to the tribunal; or else was not put to the witnesses in a way which allows them the 
opportunity to deal with that puttage. 
…

12. The NFF does not dispute the accuracy of the Commission’s assessment of the piece rate 
data. 

13. In circumstances where the party tendering the documents did not suggest otherwise to either 
witness, or even suggest any assessment of exhibits AWU#18 and AWU#21, little in the way 
of conclusions can be drawn beyond what is outlined in the notes. 

14. Any attempt at further assessment is in the nature of speculation, as it requires either 
evidence not tendered, or further evidence beyond the exhibits AWU#18 and AWU#21.’293 

[306] The NFF contends that absent any cross-examination of Mr Kelly and Mr McClintock, 
the use to which the Commission can put Exhibits AWU 18 and AWU 21 ‘is limited’. Exhibit 
AWU 18 is the bundle of documents produced by Mr McClintock and Exhibit AWU 21 is the 
bundle of documents produced by Mr Kelly.

[307] Two arguments are advanced in support of this contention:

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].






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1. The rule in Browne v Dunn prevents any conclusions being drawn from the raw piece 
rate payment data, including any inferences, absent further evidence. The NFF submits 
that ‘the effect of not suggesting a particular characterisation or interpretation of 
exhibits AWU 18 and AWU 21 [to the witnesses] leaves any explanation (or expansion) 
which either witness may have given as an open question’; and

2. Absent further explanation by the witnesses, no inference can be drawn from the 
contents of Exhibits AWU18 and AWU 21. The High Court’s judgement in G v H is 
referred to in support of this submission.294 

[308] For the reasons that follow, we reject the NFF’s submission regarding the use to which 
we can put this material.

[309] At the outset it needs to be clearly understood that the Information Notes were prepared 
by Commission staff based on the data on piece rate payments provided by Mr Kelly and Mr 
McClintock in response to the notices to produce. The Information Notes put this data into an 
understandable format. The NFF does not dispute the accuracy of the Information Notes. 

[310] The NFF’s submissions are misconceived. The rule in Browne v Dunn has no 
application in the circumstances. The rule was described in MWJ v The Queen295 in the 
following way: 

‘The rule is essentially that a party is obliged to give appropriate notice to the other party, and any 
of that person’s witnesses, of any imputation that the former intends to make against either of 
the latter about his or her conduct relevant to the case, or a party’s or a witness’ credit.’296

[311] Contrary to the NFF’s submissions, we make no imputation in respect of the conduct or 
credit of Mr Kelly and Mr McClintock. Nor do the Information Notes draw any inferences from 
the data – they simply set out the results of calculations based on data provided by Mr Kelly 
and Mr McClintock.

[312] The Commission is not bound by the rules of evidence and may inform itself in relation 
to any before it in such manner as it considers appropriate (ss.590 and 591 of the Act). 

[313] Interested parties were provided an opportunity to comment on the Information Notes 
published on 23 and 29 July 2021. No party contests the accuracy of material contained in those 
Information Notes and we propose to rely on that material, which is summarised below.

Data from Mr Brent McClintock

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]. 








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[314] The piece rate payment was derived by aggregating the total value of the bins collected 
for each worker. The hourly piece rate is calculated by dividing the total daily piece rate 
payment by the number of hours worked.297 

[315] The Level 1 casual rate in the Horticulture Award for these periods were:

 $23.66 in 2018–19;

 $24.36 in 2019–20; and 

 $24.80 in 2020–21.

[316] Table 5 shows the number of piece rate employees in the data provided by Mr 
McClintock.

Table 5: Number of piece rate employees covered in the data provided by Mr McClintock

2019 2020 2021 Total 

Employees 80 95 166 336

Note: Total is lower than the sum of the employees between 2019 and 2021 as some employees work across more than 1 year. 

[317] An analysis of the data provided by Mr McClintock for the 3,350 days worked, covering 
22,490 hours worked, shows that over half of piece rate payments (56%) were below the piece 
rate target (the Level 1 casual rate plus 15%: clause 15.2(b)): 

 In 2019, there were 534 days worked by the 80 employees covering 3,531.5 hours, 
with around three-quarters of payments below the target rate—the highest proportion 
in the period. 

 In 2020, there were 1,079 days worked by the 95 employees covering 7,121.3 hours, 
with around 6 in 10 payments below the target rate. 

 In 2021, there were 1,737 days worked by the 166 employees covering 11,837.4 
hours, with less than half (48%) of payments below the target rate.

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.








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Chart 5: Proportion of piece rate payments above the piece rate target

Source: Fair Work Commission calculations based on data provided by Brent McClintock.

[318] Average and median hourly piece rates from the data provided by Mr McClintock are 
compared with the relevant target hourly rates for 2019, 2020 and 2021 in Table 2.  

[319] Both the average and median hourly piece rates were below the target hourly rate in 
2019 and 2020. However, this was not the case in 2021, where both the average and median 
were above the target hourly rate (Table 2). 

Table 2: Hourly piece rate, 2019 to 2021

2019 2020 2021
($) ($) ($)

Average hourly rate 23.69 27.22 30.71
Median hourly rate 22.44 25.60 29.03
Target hourly rate 27.21 28.01 28.52

Source: Fair Work Commission calculations based on data provided by Brent McClintock.

[320] The level 1 casual rate in the Horticulture Award was $23.66 in 2018–19. This was 
equivalent to the national minimum wage (NMW) ($18.93) plus the casual loading of 25%. 

[321] Chart 6 compares the distribution of hourly piece rate earnings across each year. While 
the earnings distribution was more concentrated below the respective target hourly rates in 2019 
and 2020, this was not the case in 2021 where the distribution was relatively uniform. 

25.3
40.3

51.7
43.8

74.7
59.7

48.3
56.2

0

10

20

30

40

50

60

70

80

90

100

2019 2020 2021 Total

Above target Below target

Per cent








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[322] The NMW plus the casual loading in 2018–19 is noted by the vertical red line and the 
hourly piece rate earnings below this rate are shaded in grey. The chart shows that a significant 
proportion of hourly piece rate earnings fall below this rate. 

Chart 6: Distribution of hourly piece rate earnings, 2019 to 2021

Note: The vertical red line shows the NMW (including the casual loading) in 2018–19. The dotted lines show the target hourly rate for 2019, 

2020, and 2021.

Source: Fair Work Commission calculations based on data provided by Brent McClintock.

Data from Mr Anthony Kelly

[323] Mr Kelly provides data for 3 groups of workers covering different weeks in March 2021.

Table 6: Number of piece rate employees covered in the data provided by Anthony Kelly (March 2021)

Group 1 
(9–16 March)

Group 2 
(17–22 March)

Group 3 
(23–31 March)

Total 
(all groups)

Employees 22 31 48 56

Note: Total (all groups) is lower than the sum of groups 1-3 as some employees work across 2 or more groups. 

[324] For Group 1 workers (covering the period from 9 to 16 March 2021) – there were 116 
shifts worked,298 covering 784 hours, with 77% of piece rate shifts paid above the target. 

298 Workers may work more than 1 shift. 

0

2

4

6

8

10

12

=10 12 14 16 18 20 22 24 26 28 30 32 34 36 38 40 42 44 46 48 50 52 54 56 58 =60

2019 2020 2021

Per cent

Dollar per hour piece rate earnings








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[325] For Group 2 (covering the period from 17 to 22 March 2021) – there were 186 shifts 
worked covering 873.3 hours, with 74% of piece rate shifts paid above the target. 

[326] For Group 3 (covering work from 23 to 30 of March 2021) – there were 193 shifts 
worked covering 1146 hours, with 77% of piece rate shifts paid above the target.

[327] This differs from Mr Kelly’s calculations as 6 piece rate shifts from 31 March 2021 are 
excluded from his analysis. Commission calculations revealed that 4 of these shifts were below 
the target rate. When all groups are combined, Commission staff find that 77% of piece rate 
shifts were paid above the target rate (see Information Note). 

[328] The data is set out in Chart 7 below.

Chart 7: Proportion of piece rate payments above the piece rate target, Groups 1 to 3 
and total

Source: Fair Work Commission calculations based on data provided by Anthony Kelly.

[329] The data from Mr McClintock and Mr Kelly supports findings that we make later in this 
decision that some pieceworkers can earn significantly more than the ‘target rate’ for the 
average competent pieceworker, but that a significant proportion of pieceworkers earn less per 
hour than the NMW and a substantial proportion earn less than the ‘target rate’ for the ‘average 
competent pieceworker’ prescribed in clause 15.2

4.5.2 The practical operation of clause 15.2

[330] On the basis of the employer lay witness evidence, the NFF submits that we should find 
that in its present form the Horticulture Award ‘is capable of grower compliance’.

76.7 74.2 79.8 77.0

23.3 25.8 20.2 23.0

0

10

20

30

40

50

60

70

80

90

100

Group 1 Group 2 Group 3 Total

Above target Below target

Per cent






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[331] As a theoretical proposition it may be accepted that in its present form clause 15.2 of 
the Horticulture Award is ‘capable of grower compliance’, but that is not the relevant issue. 
The real issue is the extent of actual compliance. In this part of our decision we find that, in 
practice, piecework agreements are not ‘genuinely made’ by the employer and individual 
employee (as required by clause 15.2(f)). Piece rates are dictated by the grower and are not the 
subject of negotiation between the employer (which may be the grower or, more commonly, a 
labour hire provider) and the worker. Further, many growers do not set piece rates in the manner 
required by clause 15.2 and pieceworkers are often not provided with a copy of their piecework 
agreement. 

[332] As discussed in section 3.4 of the decision, clause15.2 requires that the minimum rate 
for piecework 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.299

[333] Further, as noted by the Federal Court 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.300 An employee who is not 
competent, for example, an employee who is still in training, must be excluded when 
determining the ‘average competent employee’.301

[334] The evidence supports a finding that many growers do not determine piece rates in 
accordance with the method prescribed by clause 15.2.

[335] Clause 15.2 contains a number of other provisions which may be characterised as 
protective in nature, in particular:

 the piecework agreement must have been ‘genuinely made’ by the employer and 
individual employee ‘without coercion or duress’;302

299 Hu (No 2) at [26]–[27].
300 Ibid at [31].
301 Ibid at [30], [85].
302 cl.15.2(f).








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 the piecework agreement must be in writing and signed by the employer and 
employee;303 and

 the employer must give the individual employee a copy of the piecework agreement 
and keep it as a time and wages record.304 

[336] The evidence presents a very different picture of the practical application of these 
protective measures. Rather than being the product of any genuine negotiation between the 
employer and an employee, the evidence supports a finding that piece rates are unilaterally 
determined by the grower and presented to the employee on a ‘take it or leave it’ basis. The 
evidence also discloses that employees are not always provided with a copy of the piecework 
agreement. These matters are discussed further below.

Piece rates are set and varied unilaterally

[337] In Hu (No 2) his Honour Rangiah J, noted the ‘limited’305 protection afforded by clause 
15 of the Horticulture Award and observed: 

‘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.’306

[338] The evidence before us is entirely consistent with his Honour’s observations. In practice 
piece rates are dictated by the grower and are not the subject of any negotiated agreement 
between the employer (which may be the grower or, more commonly, a labour hire provider) 
and the worker. 

[339] The evidence of the employer and union witnesses discloses that piece rates are:

 commonly set prior to or at the commencement of the harvesting season, without 
reference to employees, and are not the subject of any negotiation;

 communicated to employees at the time they are required to sign a pieceworker 
agreement, or when the employee commences work; and

 are adjusted unilaterally by the grower and any adjustment are not the subject of 
negotiation.  

[340] The evidence of growers was that they simply inform workers (or labour hire 
contractors) of the piece rate they have determined.307 Even those growers who routinely 

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-








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adjusted the piecework rate to accommodate the circumstances of the work, and informed their 
employees of the adjusted rates, did not give evidence that would amount to a finding that the 
employee and employer genuinely agreed to make a piecework agreement.308 

[341] The relevant employer evidence is summarised below. 

 Ms Michelle Distill,309 operates an orchard in Spreyton, Tasmania on which she 
grows apples and cherries. The orchard’s seasonal pickers are all pieceworkers. When 
they arrive at the orchard, workers are told what the work is, what the piece rate is, 
and they sign a pieceworker agreement. They are inducted on site at the same time,310 
and start work that day.311

 Mr Richard Eckersley,312 owner and operator of Yambellup Estate, (a citrus, avocado 
and grape operation in Harvey, Western Australia) employs ‘20 to 30 temporary 
workers as pickers’, mostly through labour hire operators, and ‘about 10 temporary 
packers on a seasonal basis’ who are directly employed.313 When the piece rate 
changes, the business does not enter into a new piecework agreement and but just 
tells the employees that the piece rate is changing.314 

 Mr Gaetano Gaeta,315 an apple and cherry grower in NSW, has a seasonal workforce 
that is engaged as casuals, with the picking work being paid on piece rates and 
packing work on hourly rates.316 Historically, Mr Gaeta’s farm employed labour 
directly, but this season relied heavily on labour hire. In past years, having determined 
what the rate should be, he would write the rate into the piecework agreement and 
give it to the workers when they turned up at the farm.317 He had an agreement with 
the labour hire agency, which he understood would then have a pieceworker 
agreement with the workers.318 Mr Gaeta described monitoring the picking work and 
adjusting the picking rate for the day.319 If the picking rate was changed workers were 
told ‘straight away’,320 ‘when they get there’321 which could be at the start of the day 
or during the course of the day.322 

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).








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 Mr Anthony Kelly,323 the Chief Financial Officer for N&A Group, comprising of 
apple and berry farms in Batlow, NSW describes the peak season harvesting and 
pruning workforce in their enterprise as being split 60/40 in favour of labour hire.324 
The pickers and pruners are paid piece rates.325 Pieceworkers, whether they be 
directly employed or sourced through a labour hire agency, are provided a written 
pieceworker agreement as part of their ‘on-boarding process’.326 

 Mr King,327 National Capital/Operational Projects Manager at Costa Group, gave 
evidence that the workforce is informed of the ‘minimum rate’ when they start with 
the business ‘during their induction’,328 with the piece rate fluctuating day to day. 
Workers (whether employed directly or through a labour hire agency)329 are told their 
piece rate ‘when they turn up for work each day.’330 He considered that by signing ‘a 
sign on sheet’ when they turned up to work, ‘[t]hat they’re happy to have the rate 
change’.331 

 Mr McClintock,332 General Manager, Tasmania Operations for Pinnacle Fine Foods, 
gave evidence that Pinnacle sources all of their picking workforce through labour 
hire.333 Pinnacle entered into an agreement with the labour hire agency about the 
piece rate (the ‘minimum rate that we will pay for the job’).334 That rate is determined 
at the beginning of the season,335 and is adjusted ‘at the beginning of each workday 
on the basis of difficulty, weather conditions etc.’336 Workers are told the rate for the 
day ‘as they start’.337 Pick rates are monitored during the day and workers are told 
the next day if there is going to be a change in the rate.338 

 Mr Siah,339 a farm manager at Tropical Primary Products (or TPP Australia) in the 
Northern Territory. Mr Siah described a calculation he did in his head (not 
documented or written down)340 to determine the appropriate piece rate for picking 
mangoes on his farm, based around what he believed a ‘hypothetical competent and 

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).








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reasonably productive worker’ could undertake.341 Workers are given a written 
pieceworker agreement when they arrive at the farm,342 and the rate in that agreement 
is set for the season and remains the same throughout the season ‘most of the time’.343 
The piece rate is adjusted depending on conditions and performance,344 and he 
generally provides a new piecework agreement when that happens.345 

 Ms Catherine Silverstein,346 an orchardist in Goulburn Valley, Victoria, sets the piece 
rate for the year at the start of the season by reference to the piece rate recommended 
by the Industrial Committee of the Victoria Farmers Federation and Fruit Growers 
Victoria, and then adjusted: ‘we will usually add a further $5 per bin, plus a further 
bonus of $1 to $5 per bin depending on the quality of the produce picked without 
damage’.347 That rate is maintained throughout the season.348 Ms Silverstein tells the 
labour hire company what the rate will be, and the relationship between the labour 
hire agency and the worker is a matter the labour hire company works out.349 

[342] The evidence led by the AWU and UWU also supports a finding that piecework rates 
are unilaterally set by the employer, :

 Mr Anthony Beven, an Organiser with the AWU, has never observed piece rates 
being set in consultation with the workers:  

‘My experience has been that the farmer or labour hire provider sets the piece rates and 
communicates this to the worker – it is not open for discussion.’350

 Mr Carter, AWU Northern NSW Region Organiser, observed in his experience 
guidelines developed by the Fair Work Ombudsman to assist in setting a fair piece 
rate are: 

‘ignored by all companies within the berry industry’, rather ‘Companies have their own 
piece rate setting procedure without any inclusion or genuine agreement of any affected 
employee.’351 

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].








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 Chee Sing Ee,352 who worked in the Australian horticulture industry from 2016 to 
2019,353 ‘was never given an alternative between being paid piece rate or hourly rate’ 
during that time.354

 Hsu,355 who worked as a pieceworker in the Australian horticulture industry between 
2018–2021 says: ‘When I did piece rate jobs in Australia, the farmers or the 
contractors never gave me an alternative of being paid an hourly rate’.356

 Rodney McDonald gave evidence about his experience as a pieceworker in the 
Australian horticulture industry:357

‘In about February 2018 I started working at a medium sized growers’ farm picking 
peaches and apples for a piece rate. Shortly after I started, the grower held a group 
meeting in the morning with all the new pickers who had been sent by MADEC. 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.” I took a photo of the rate sheet, which was from 
the industry association. Attached to this statement and marked “RM-1” is a copy of the 
rate sheet I photographed in about February 2018.

In about November 2018 I started working at a large apple and pear grower, working for 
a contractor and it was during the thinning season. Shortly after I started a supervisor at 
the farm - who was working directly for the grower - asked workers to sign a piecework 
agreement, including those people like me who were working for a contractor. I just 
looked at the figure on the paper and signed it. I remember seeing others doing the same. 
I felt at the time there was no other choice - I either signed this and started working, or 
if I didn’t sign it and I thought I would be sent home. I never got a copy of the 
agreement.’358

 Mr Robertson, Lead Organiser for the UWU, observed that in his experience: 

‘…there is no genuine negotiation between employer and employee over the piece rate. 
Instead, the piece rate is fixed by the employer, and the employee is offered the 
opportunity to accept that rate (and therefore work) or decline it and lose the work – on 
a “take it or leave it basis”.’359 

Methodology for determining piece rates

[343] A number of the employer lay witnesses gave evidence regarding the method they 
employed to set piece rates. In most instances the method employed did not confirm with the 
requirements of clause 15.2 (as interpreted by the Federal Court in Hu (No.2) and the Hu 
Appeal. For example:

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].








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 Mr Kelly determines the piece rate for apples ‘by consultation with senior supervisors 
who has an extensive history with the industry and is knowledgeable of the crop, the 
terrain, and the conditions in the field on a given day’.360

 Mr McClintock sets the piece rate at the beginning of each session based on ‘what 
we believe to be a rate which complies with the Horticulture Award, informed by our 
knowledge and experience and the guidance which is published by industry bodies 
such as Primary Employers Tasmania.’361

 Ms Silverstein adjusts the piece rate each year ‘depending on the recommendation of 
the Industrial Committee at the VFF and Fruit Growers Victoria. On top of this 
recommended amount, we will usually add a further $5 per bin, plus a further bonus 
of $1 to $5 per bin depending on the quality of the produce picked without 
damage.’362

 Mr Gaeta sets the piece rate based on what he can pick in an hour.363

 Mr Benham states that in setting a piece rate he relied on his ‘expertise and 
understanding of what different fruits are worth and our output to determine the rate 
payable per bin. If the quality of our output improves, we will adjust the rate upwards 
as necessary.’364

 Ms Distill sets the piece rate for apple picking having regard to guidance material 
published by Primary Employers Tasmania ‘although we do not follow it religiously 
and will vary it (usually up) if we don't believe the rate is high enough.’365

 Mr Eckersley’s evidence was that the piece rates are initially ‘established with 
reference to what we have paid in previous seasons, what is industry standard, as well 
as our own experience and knowledge of what is achievable for an average competent 
worker.’366 The rate initially set is advised to the labour hire company at the start of 
the season,367 and they ‘tend not to change [the piece rate] on a daily basis if we can 
help it’, but sometimes there might be a change.368

A written piecework agreement is not always provided. 

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).








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[344] None of the employee lay witnesses called in these proceedings describe having been 
provided a written piecework agreement by their employer.369 Similarly, Mr Robertson,370 Lead 
Organiser for the UWU, gave evidence that in his experience it was common for pieceworkers, 
particularly those working for labour hire contractors, to not be provided with a copy of the 
written piecework agreement they had signed.371 Other evidence in these proceedings is 
consistent with the Union lay witness evidence.

[345] The OmniPoll Survey of vegetable growers asked the growers using pieceworker rates 
the following: ‘When you pay piece rates, do you have a written agreement with workers that 
specifies the rate of payment for them in writing?’

[346] About half of the 63 growers using pieceworker rates claimed to have a written 
agreement with workers that specified the rate of payment in writing. Written documentation 
was more likely to be provided by larger businesses employing more than 20 employees.372 As 
a matter of logic, those growers who did not have a written agreement could not have complied 
with the terms of clause 15.2(h) of the Horticulture Award in that they could not have provided 
a copy of the piecework agreement to their pieceworkers.

[347] Of the 626 employers involved in the 2018 FWO Harvest Trail Inquiry373 (more than a 
third of which were paying pieceworker rates or a combination of pieceworker rates and hourly 
rates), ‘over 100 of those employers were not engaging pieceworkers correctly by having no 
written piecework agreement or having an invalid piecework agreement.’374

4.5.3 Consequences of granting the Application

[348] The NFF submits that we should accept the unchallenged evidence of the NFF lay 
employer witnesses as to the consequences of granting the Application. Similarly, the AFPA 
submits that granting the Application will have a number of ‘direct effects’.375

[349] Much of the employer lay evidence is speculative in nature and of limited probative 
value. That said, we accept that the introduction of a minimum wage floor to underpin 
pieceworker rates will affect how horticulture workers, particularly pickers, are managed, and 
is likely to increase employment costs.

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].








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[350] The evidence is that pieceworker rates are currently used as a management tool. Mr 
Kelly describes it as a ‘model of self-managed productivity’,376 he uses pieceworker rates 
because ‘they remove the need to supervise the productivity of our pickers’:

‘We are happy for them to work at their own rate and are comfortable if they are not picking at a 
rate we would consider competent, although we are also confident that they will generally work 
in their own interest at a good rate of productivity and that those who do not meet this standard 
will not incur excessive expense.’377

[351] Mr King puts it this way:

‘the reality is that, at any given point in time, a substantial proportion of the workforce does not 
perform at a competent level. The use of piecework engagement without a minimum hourly 
‘floor’ allows growers to cope with this substantial cohort of unproductive workers by paying 
them an amount that is proportionate to their productivity.’378

[352] The short point is that under the existing piecework arrangements pieceworkers are only 
paid for what they pick and hence employers have no need or economic incentive to manage 
slow or unproductive pickers. 

[353] A minimum wage floor creates an economic incentive to manage unproductive workers, 
as Mr King puts it:

‘In order to manage the increase in labour costs, Costa would need to introduce a lot stricter 
standards and expectations in its recruitment and in training and monitoring new starters, as well 
as more proactively monitoring underperforming workers, ultimately retaining only the 
strongest performers and accepting a higher rate of turnover (including as a result of terminating 
the employment of casual employees who do not perform strongly).

I expect that Costa, like any other grower, would consider doing this by introducing a minimum 
required output level, such that employees who are unable or unwilling to meet those minimum 
volumes may ultimately have their casual piecework employment terminated…

I anticipate that this approach would be feasible because at present approximately 80% of 
Costa’s product is picked by around 60% of our workforce of pickers. This means that Costa 
could significantly reduce its workforce size, retaining its best performers, without substantially 
reducing its production output.’379

[354] Other employer witnesses expressed similar views:

 Mr Kelly: ‘we would need more supervision in the orchard, to check on the progress 
of pickers … in some instances, to terminate those employees who were not 
productive.’380

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].








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 Mr Moss: ‘I would have to be much more selective about the backpackers I engage 
… I would have to let workers go who are not working as productive’381

 Mr Benham: ‘If the farm … needs to add backpackers or other visa holders to our 
labour mix, we will have to assess how these workers perform, in order to dismiss 
employees who are not performing.’382

 Ms Distill: ‘If a minimum floor were introduced, then we would have to let go any 
person who had not picked a single full bin by morning ‘smoko’ (around 10am) 
because our business simply could not afford to employ any picker who was not at 
least at that level of proficiency’.383

 Mr Eckersley: ‘it is highly likely that we would need to assess (and if necessary cease 
to employ) those employees who are not able to quickly achieve a high rate of 
productivity … it would require some greater degree of supervision of work 
productivity, including examining how much work each individual picker is 
performing’.384

[355] There was also some evidence that if the Application was granted some growers would 
make greater use of automation. In her evidence, Ms Reardon, who runs a farm growing apples 
and cherries, said:

‘If the AWU application to install a floor on piece rates was successful, we would probably look 
at using more automation. For example, we would start using picking platforms which cost about 
$150,000 each hour but would allow us to use much fewer pickers who we would be able to pay 
by the hour. We would also be much less tolerant of less-productive workers’.385

[356] We think it likely that the introduction of a minimum wage floor will lead employers to 
take more active steps in the recruitment, supervision and management of pieceworkers. It is 
also likely that underperforming pieceworkers will be dismissed. The impact of such a change 
will be mitigated somewhat by the fact that some growers already actively manage employer 
productivity; as is evident from the employer lay witness evidence:  

 Ms Reardon: ‘The Farm monitors the rate at which the Farms' pickers work. If they 
are being too slow then a supervisor will draw it to their attention and suggest how 
they may increase their work rate. For example, if they are being more careful than 
is required then the supervisor would let them know that the level of caution should 
not be necessary.

If they are still working too slow then we will usually suggest they move on to work, 
for example, in one of the local packing sheds.’386

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].








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 Mr McClintock: ‘In the case of underperformance or lower-than-desirable 
productivity, we will provide oversight and retraining to ensure employees receive 
the necessary attention to be capable of earning at a higher rate. Those who are not 
capable of doing so are generally offered an option to remain or leave.’387

 Ms Silverstein: ‘We trial ‘unplanned’ workers such as backpackers, so that if they 
haven’t picked a bin by lunch time then we ask them to move on. If we ask them to 
move on then we pay them an hourly rate for the time they’ve worked, 4 or so 
hours.’388

[357] A corollary of Mr King’s evidence referred to earlier is that introducing a minimum 
wage floor will provide an incentive to reduce the current ‘substantial cohort of unproductive 
workers’, thus increasing productivity. 

[358] A number of the employer lay witnesses expressed the opinion that introducing a 
minimum wage ‘floor’ would both ´demotivate underperforming employees from lifting their 
performance and ‘disincentivise’ pieceworkers currently earning more than the minimum 
award rate.

[359] We accept the first proposition — at least in respect of some underperforming 
employees; but note that underperformance can be managed, for example by setting proficiency 
targets. We do not accept the second proposition, for the reasons which follow.

[360] A consistent theme in the employer evidence is that piecework is an attractive option 
for workers because it provides an opportunity to earn substantially more than the minimum 
hourly rate:

 Mr King: piecework ‘is an effective way of attracting, motivating and retaining 
workers as the piece rate rewards performance and has no ceiling on earnings’.389

 Ms Reardon: piecework is used to ‘promote productivity’ as employees are 
‘incentivised’ to work faster’.390

 Mr McClintock: ‘Piece rates are used and favoured because they attract motivated 
workers with a high rate of retention due to the high potential for earning when 
compared to the ordinary hourly rate’.391

 Ms Silverstein: ‘We also use piece rates because the worker benefits and it creates an 
incentive for them to earn more money than on hourly rates.’392

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]








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 Mr Gaeta: ‘Payment by piece rate is suitable to motivate workers to work efficiently 
as their earning is dependent on their productivity’.393

 Mr Han: ‘When harvest season ends we occasionally offer the best Pickers further 
employment in the packing shed, where they will be paid hourly rates, but they 
usually reject the offer because they know they can earn much better money going 
to do harvest work on other farms earning piece rates.’394

[361] We accept that appropriately set pieceworker rates can provide an incentive for workers 
to increase their output, as their earnings will increase. We are not persuaded that introducing 
a minimum wage floor will ‘disincentivise’ pieceworkers currently earning more than the 
minimum award rate. It seems to us that such an outcome is inherently unlikely.

4.6 Key Findings

[362] On the basis of the evidence canvassed in sections 3 and 4 of this decision we make the 
following findings:

General

1. In the horticulture industry, crop growth is seasonal and each crop has its own 
distinct picking season. The window of time during which produce is at its 
optimal ripeness or size varies by crop 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.  The price of lower-grade / outgrade produce is much lower 
than first-grade produce. 

2. Work in the horticulture industry is labour intensive and predominantly 
seasonal. The workforce size and composition varies substantially over the 
course of the year, and from region to region. There is a high proportion of casual 
and contract labour in the horticulture industry.

Piecework

3. A substantial proportion of the seasonal harvesting workforce are engaged on 
piecerates and more than half of the seasonal harvesting workforce are 
temporary migrant workers. These characteristics render the seasonal harvesting 
workforce vulnerable to exploitation.

4. There is widespread non-compliance with clause 15.2 of the Horticulture 
Award:

 many growers do not determine pieceworker rates in accordance with the method 
prescribed by clause 15.2, as interpreted by the Federal Court in Hu (No.2) and the 
Hu Appeal;

393 Exhibit NFF 7 at [8]
394 Exhibit NFF 8 at [34]








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 pieceworker rates are set unilaterally by the grower and presented to the employee on 
a ‘take or leave it’ basis, rather than being the product of any genuine negotiation 
between the employer and employee;

 pieceworker rates are adjusted unilaterally by the grower and adjustments are not the 
subject of negotiation; and

 pieceworkers are usually not provided with a written piecework agreement.

5. Some pieceworkers earn significantly more than the ‘target rate’ for the average 
competent pieceworker’395, prescribed in clause 15.2(b), but the totality of the 
evidence presents a picture of significant underpayment of pieceworkers in the 
horticulture industry when compared to the minimum award hourly rate. 

6. A significant proportion of pieceworkers, and WHM’s in particular, earn less 
per hour than the NMW ($20.33 per hour; which is also the minimum hourly 
rate for a level 1 employee in the Horticulture Award) and a substantial 
proportion earn less than the ‘target rate’ for the ‘average competent 
pieceworker’ prescribed in clause 15.2.396

Consequences of granting the Application

7. Pieceworker rates are currently used as a management tool; pieceworkers are 
only paid for what they pick and hence employers have no need or economic 
incentive to manage slow or unproductive pickers. 

8. Introducing a minimum wage floor will provide an incentive to reduce the 
current cohort of unproductive workers, thus increasing productivity. A 
minimum wage floor would create an economic incentive to manage 
unproductive workers and it is likely that the introduction of a minimum wage 
floor will lead employers to take more active steps in the recruitment, 
supervision and management of pieceworkers. The impact of such a change will 
be mitigated somewhat by the fact that some growers currently actively manage 
employee productivity. It is also likely that underperforming pieceworkers will 
be dismissed.

9. The introduction of a minimum wage floor may demotivate some 
underperforming employees and reduce productivity; but such 
underperformance can be managed, for example by setting proficiency targets. 
A minimum wage floor may also provide an incentive to reduce the current 
cohort of unproductive workers, thus increasing productivity.

10. Appropriately set pieceworker rates can provide an incentive for workers to 
increase their output, as their earnings will increase. It is inherently unlikely that 

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].








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introducing a minimum wage floor will ‘disincentivise’ pieceworkers currently 
earning more than the minimum award rate. 

11. If a minimum wage floor was introduced it is likely that some employers will 
make greater use of automation and machinery to reduce labour costs.397

397 Exhibit NFF 1 at [36]








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5 SUBMISSIONS

[363] This section of our decision summarises the submissions received in respect of the 
Application. 

5.1 Union submissions 

[364] The essence of the argument advanced by the AWU in support of the Application is that 
the current piecework provisions in the Horticulture Award ‘fail to provide for an equitable 
scheme or ensure proper protection against the abuse of piecework arrangements’ and ‘thereby 
fail to provide a fair and relevant minimum safety net’.398 In particular the AWU submits that 
the current piecework provisions have ‘failed to prevent the pieceworker arrangements resulting 
in employees frequently earning substantially below the minimum rates set by the Horticulture 
Award.’399

[365] In addition, the AWU submits that the characteristics of the workforce are also relevant 
to the assessment of what is necessary to provide a fair and relevant safety net of terms and 
conditions and that:400 

‘The variations sought are necessary to achieve the modern awards objective of ensuring that the 
modern award, together with the National Employment Standards, provide a fair and relevant 
minimum safety net of terms and conditions.’401

[366] The AWU submits that the evidence supports the conclusion that the piecework 
provisions do not ensure adequate minimum conditions are maintained in the absence of 
provision for a minimum guaranteed payment, having regard to following considerations:

1. Various government reports and academic studies ‘overwhelmingly 
demonstrate that the majority of workers in horticulture who are paid piecework 
rates receive well below the minimum hourly rates of pay in the Horticulture 
Award and below the national minimum wage.’402

2. The protection intended to be provided by clause 15.2(b) is ‘insufficient and 
simply not working’,403 in particular:

 Clause 15.2(b) relies on an assessment of what piecework rate is necessary to enable 
an ‘average competent employee’ to earn 15% more than the minimum hourly rate; 
an assessment of the piecework rate required to achieve that objective is ‘complex, 
subjective and difficult to enforce’.404

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)].








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 Clause 15.2(b), together with the statement in clause 15.2(f) that a piecework 
agreement must be made without coercion or duress ‘is inadequate as the sole 
protective measure to ensure that piecework rates are not utilised in a manner 
intended to, or having the effect of, undermining the minimum rates set by the 
Horticulture Award.’405

3. The operation of clauses 15.2(a), (b) and (f) relies on there being a realistic 
capacity for the employer and employee to reach a genuine agreement on a 
piecework rate that will enable the employee to earn at least 15% more than the 
applicable hourly minimum rate. But the characteristics of the workforce makes 
it inherently unlikely that a system reliant upon genuine agreements being 
reached between employers and employees will be adequate, in particular:

 the horticulture workforce is commonly transient with a high level of temporary 
migrant workers, and

 workers frequently have limited English language skills, are poorly informed about 
their employment conditions and legal entitlements, and are vulnerable to coercion 
and duress (including as a result of isolation, financial pressures and visa conditions).

4. The majority judgment in Fair Work Ombudsman v Hu406 revealed a deficiency 
in clause 15.2 of the Horticulture Award. The majority found that, if an employer 
and employee enter into a piecework agreement under clause 15.2(a), the 
employee does not have the benefit of the weekly or hourly rates in what is now 
clause 15.1 even if the piecework rate does not comply with clause 15.2(b).407 

5. The following modern awards contain piecework provisions which include a 
guaranteed minimum payment:

 Building and Construction General On-site Award 2020408

 Silviculture Award 2020409

 Sugar Industry Award 2020410 and

 Wool Storage, Sampling and Testing Award 2020.411

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).








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[367] The UWU supports the AWU’s proposed variation and submits that the Commission 
can be satisfied that it is necessary to achieve the modern awards objective, for the following 
reasons:412

1. The operation of clause 15.2 ‘frequently results in employees covered by the 
Award being paid a wage that is less than the equivalent of the relevant modern 
award hourly minimum wage.’413

2. The operation of clause 15.2 ‘frequently results in employees covered by the 
Award who are average competent employees and who are pieceworkers being 
paid less than at least 15% more per hour than the minimum hourly rate 
prescribed in the award for the type of employment and the classification level 
of the employee.’414

3. Clause 15.2 is ‘frequently misapplied and is unworkable.’415

4. Clause 15.2 fails to take account of changes in community standards and 
expectations in relation to paying workers low and unliveable wages.416 

5. The uncertainty in the operation of clause 15.2 ‘results in circumstances where 
even an employer attempting to comply with the Award in setting piecework 
rates, faces strong likelihood that their rates are not Award compliant.’417

[368] The UWU contends that the existing piecework provisions do not provide a fair and 
relevant minimum safety net and submits that the pieceworker rate concept ‘is based on the idea 
that an employee is given an opportunity to earn more than a minimum rate of pay, in exchange 
for higher productivity, but could be paid less than a minimum rate of pay as a result of lower 
productivity.’418  The UWU contends that in order for such a clause to be ‘fair’ it:419 

 must provide the employee with a fair opportunity to earn more than the minimum 
rate

 should not result in employees earning less than the minimum rate, on a frequent 
basis, and

 should not result in employees rarely or never earning more than the minimum rate.

[369] The UWU submits that the operation of clause 15.2 frequently results in employees 
engaged on a casual basis to perform, for example, fruit or vegetable picking and packing, 

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]. 








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thinning or pruning being paid less than the relevant award minimum rate which applies from 
time to time.420

[370] The UWU acknowledges that if the Application is granted the difficulties associated 
with the ‘average competent employee’ assessment will remain but submits that the variation 
proposed ‘removes the unfairness that is currently being borne by employees as a result of 
operation of the clause…Thus alleviating the effect of exploitative piecework rates that are 
prevalent throughout the industry.’421

[371] The UWU submits that the proposed variation requiring the keeping of records is 
‘warranted and justified’ because there is currently no requirement to do so, and consequently, 
there is a ‘common tendency’ for employers covered by the Horticulture ward not to keep 
records.422 The UWU submits that this is ‘a factor that inhibits the ability of an employee to 
determine whether they are being paid at least the minimum required under clause 15.2 of the 
Award’.423

5.2 Other submissions in support of the Application

[372] The State Governments of Queensland, Victoria and Western Australia made 
submissions which were supportive of the Application. 

[373] ACOSS, the Uniting Church of Australia and 88 Days and Counting also support the 
Application.

5.3 Employer Associations

[374] The AFPA, Ai Group, the NFF and Fruit Growers Tasmania oppose the Application. 

(i) AFPA 

[375] The AFPA opposes the Application. Its primary position is that the Union parties have 
not made out a merits case for this significant change to ‘a very long-standing award-based 
mode of remuneration in the horticultural industry’ and on that basis, no variation to the 
Horticulture Award is warranted. 

[376] If contrary to AFPA’s primary position, the Commission were satisfied that an 
amendment to the Horticulture  Award is required to ensure a fair and effective safety net, the 
AFPA submits that the variation proposed by the Union Parties ‘would be unnecessary and 
inappropriate having regard to the circumstances of the horticultural industry.’ 

[377] The AFPA advances 3 broad lines of argument in support of its position:424

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].








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1. The case advanced by the Union parties - that there is a widespread industry 
practice of setting the piecework rate too low, in breach of clause 15.2(b), 
resulting in pieceworkers being overwhelmingly paid less than the minimum 
hourly rates applicable to timeworkers - is significantly overstated. The Union 
parties have not adduced reliable evidence concerning the earning outcomes of 
pieceworkers to satisfy the Commission that the variation they seek is necessary. 

2. The issues raised by the Union parties are ‘about whether the existing safety net 
is being appropriately implemented’ and while those issues do not justify the 
variation sought by the Union parties, they ‘might warrant improvements to the 
implementation machinery of the piecework provisions of the Award.’ The AFPA 
notes that while clause 15.2(b) requires the piecework rate to be set so that the 
average competent worker receives a 15% uplift, the Horticulture Award does not 
prescribe any specific process or mechanism for ensuring that this objective is 
actually achieved: 

‘In particular, the Award does not provide any express guidance as to how to 
identify the cohort of competent employees, how to calculate the initial 
piecework rate and what, if any, variables to include in that calculation, and 
how and when the piecework rate should be reviewed and updated to ensure 
compliance with the Uplift Term. The safety net could be improved to provide 
more clarity around this, requiring employers to follow a particular approach to 
setting the rate. This would make it easier to monitor compliance and close 
avenues for abuse by unscrupulous employers.’425 

3. If the Commission were satisfied that the safety net requires variation, the solution 
would not be to ‘eviscerate the piecework-based safety net by throwing out the 
risk-reward bargain [which] would run the significant risk of causing disruption 
to the industry with adverse outcomes for many growers and the labour market.’ 
The AFPA submits that a ‘more cautious, measured and balanced approach could 
achieve substantial practical improvements to the safety net.’ 

[378] In section D.2 of its submission the AFPA submits that ‘there are sound reasons why 
piecework remains an essential mode of engagement for some tasks’, particularly picking:426 

1. Growers require a workforce that is both seasonal, large in peak periods (to 
ensure that all the ripe produce is picked before it overripens or spoils) and 
varying in size over the course of the season. Fresh produce harvesting is 
generally seasonal, with produce being available to be harvested only during 
particular months or weeks of the year.  The volume of product that ripens varies 
over the season, increasing from the start to the middle of the season and then 
dropping off until the end of the season.  Further, even within the season, the 
produce needs to be harvested very quickly after it reaches the right level of 
ripeness and/or size.  For example, mushrooms grow so quickly that there is only 
an 18-hour window to pick them at their optimum size and condition.  Similarly, 
the picking window for raspberries and blackberries is only one day.   

425 Ibid at [6(b)].
426 Ibid at [24].








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2. The inherent seasonality and unpredictability of the demand for picking labour 
has always meant that the workforce included a substantial proportion of 
inexperienced workers.  But in recent years, the decline of professional ‘picking 
gangs’ means that (under normal conditions prevailing before the pandemic) 
much of the workforce is drawn from backpackers with no prior experience and 
often poor motivation.  A substantial minority of pickers start the job, decide 
that the job is not for them and leave in a matter of days and sometimes on the 
first day.  A majority leaves within eight weeks.

3. Picking is not rocket science, but it does require some experience to achieve a 
basic level of competence.  Depending on the type of produce, it takes a novice 
several weeks of experience to become a competent picker and it can take longer 
than that to achieve an average level of competence. 

4. Given the time it takes to achieve competency and the nature of the picking 
workforce described above, there is usually a substantial proportion of the 
workforce who have not yet achieved basic competence and many employees 
leave before they become competent.  The output of these not-yet-competent 
employees is very low compared to the cohort of competent workers.

[379] The AFPA submits that piecework engagement provides an ‘attractive option for both 
employers and employees’:427  

 For the employers, the labour cost of the substantial proportion of employees with 
low productivity is kept commensurate with their productivity until they achieve 
basic competence:  

‘This allows employers not to be discerning in selecting and retaining their pickers and 
to continue engaging pickers found to have low productivity.  It also means that novice 
employees are incentivised to learn the job and achieve competence as quickly as 
reasonably possible and more experienced employees are incentivised to maximise their 
productivity, while receiving the commensurate reward.’428  

 Employees also benefit from the arrangement: 

‘Unskilled and unmotivated individuals with no experience, who would otherwise make 
unattractive candidates, can obtain employment.  Pickers who are not motivated to be 
productive and maximise their remuneration (eg backpackers who are only doing the 
job to satisfy visa requirements or “grey nomads” who pick as a lifestyle choice) can 
pick at a pace that suits them but still retain their employment.’429

[380] The AFPA contends that the Horticulture Award currently offers the choice of 2 
alternative modes of engagement with different safety nets — engagement as a timeworker and 
engagement as a pieceworker. It submits that: ‘The effect of the variation proposed by the AWU 

427 Ibid at [25].
428 Ibid at [25(a)].
429 Ibid at [25(b)].








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would effectively remove this choice, disadvantaging both employers and employees.’430 This 
is said to be so for 3 reasons:431

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 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”.’432 

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.’433

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. The AFPA submits that ‘this would be a fundamental change to 
the safety net.’  

3. Such a change would create real difficulties for employers and poses the risk of 
substantially disrupting the industry based on the structural reality of its labour 
market. Indeed, it could push some growers into non-compliance with the Award 
and other employee entitlements and ‘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.’434 The AFPA also 
submits that such a change would also disadvantage many employees, 

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).








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particularly competent pieceworkers who currently benefit from the uplift 
provided that the piecework rate is set appropriately, and poorly-performing 
employees as the requirement to pay everyone the minimum hourly rates 
regardless of performance ‘will force employers to become much more strict in 
culling workers with low productivity.’

[381] The AFPA does not challenge the proposition that some employers set their piecework 
rates at inappropriately low levels but submits that the Union parties’ evidence of widespread 
exploitation ‘suffers from fundamental methodological flaws that make it an unreliable guide 
as to the level of compliance’.435

[382] The AFPA submits that ‘at its highest’, all that the Unions’ evidence shows is that: 

‘the practical application of the current piecework provisions may disadvantage employees 
because piecework rates are, in practice, being set too low.  But that is not a reason to throw out 
the whole concept of a piecework-based safety net, rather it is a reason to vary clause 15 to 
provide mechanisms that will improve the implementation of the concept.’436

[383] The AFPA also notes that the characteristics of the workforce on which the Union 
Parties rely to justify the variation are not new:  

‘Indeed, the fundamental characteristics of the horticulture industry and its workforce that make 
piecework engagement so critical have been recognised in arbitral decisions going back as far 
as the 1920s and 1930s.  The rise of backpackers as a major component of the workforce merely 
exacerbated an old problem of inexperienced labour and in any event pre-dates the making of 
the Award.  What is new, however, are the recent regulatory schemes for licensing labour hire 
providers. These will presumably improve the level of compliance with workplace laws by 
labour hire providers.’437 [Footnotes omitted]

[384] The AFPA submits that the concept of a piecework-based safety net with a 15% uplift 
is ‘sound and meets the unique needs of the horticulture industry, where product is often highly 
perishable and must be picked within a narrow time window to maximise yield, quality and 
pricing. If any amendment were necessary, it would be to improve the practical implementation 
of that concept through additional machinery provisions.’438 

[385] In section 3 of its submission the AFPA proposes an alternative variation for the 
Commission’s consideration if the Commission were to form the view that the current 
piecework provisions in the Horticulture Award need to be varied.  The proposed alternative 
variation preserves the concept of a piecework-based safety net with an uplift of earnings for 
competent pieceworkers compared to timeworkers, but provides additional implementation 
machinery to support the transparent and consistent application of piecework rates. We return 
to the AFPA’s proposed alternate variation shortly.

435 Ibid at [6(a)].
436 Ibid at [40].
437 Ibid at [37].
438 Ibid 2021 at [41].








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[386] During the course of his closing oral submissions senior counsel for the AFPA narrowed 
the issues somewhat, as between the AFPA and the Unions. In particular, the AFPA:

 acknowledges that the ‘protective’ mechanisms in clause 15.2(f), (g) and (h) ‘do not 
of themselves provide much protection in practice; they are only going to be as good 
as the protections in the mechanism for fixing piece rates’439;

 does not contest the proposition that the standard of ‘average competent worker’ is 
‘subjective and open to abuse’440;

 submits that the current ‘average competent worker’ standard is problematic in 2 
respects:

1. the test is not documented in the Horticulture Award, you have to look 
at the case law, in particular the Hu litigation, to find the test which 
‘makes it more difficult for both workers and farmers to even know what 
the test is, whether it exists and what it involves’441, and

2. the test ‘leaves a lot of room to the discretion of the employer in terms 
of arriving at the threshold of competence’ which ‘makes it more 
difficult for workers, unions and the Fair Work Ombudsman to verify 
compliance and to enforce clause 15.2, particularly given that there’s no 
express obligation on an employer … to record the hours worked’442, 
and;

 agreed with the proposition that the imposition of an explicit obligation on an 
employer to keep records of the hours worked would not impose an unreasonable 
additional administrative burden on employers.443

[387] On the basis of the above concessions the AFPA accepts that ‘there are problems with 
the existing clause’444 and ultimately contends that if we are satisfied that a variation is 
necessary ‘the real issue … is crafting the most appropriate variation necessary to achieve the 
safety net objectives’.445 In this regard the AFPA contends that its proposal is to be preferred to 
that advanced by the AWU, and submits that the AWU proposal:

‘leaves the current concept of average competent employee in the award completely unchanged, 
does nothing to improve or refine it.  Employers will still be required to set piece rates so that 
an average competent employee can earn at least 15 per cent more than the minimum hourly rate 
in exactly the same way as they are doing now, without any further guidance.

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]








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All of the problems associated with the current regime to which the union points …  the vague 
nature of the test of average competence; the fact that the test leaves much to the employer's 
discretion; the provision is hard to enforce; the fact that the test is not even spelled out in the 
clause; all of those problems remain unaddressed under the AWU's variation.

Instead of fixing the problems in the piece worker safety net, their proposal just adds another 
safety net, leaving the original first safety net intact, but on the basis implicitly that it's simply 
irrelevant or less important for some classes of workers… So that's not really a solution to the 
problems they've identified, and it's certainly not the sole possible appropriate variation.’446

(ii) Ai Group

[388] Ai Group opposes the Application and submits that the option of paying piecework rates 
rather than minimum hourly rates ‘is a fair and appropriate condition for the horticulture 
industry which enables employees to earn well above what would otherwise be the minimum 
hourly rate.’447

[389] Ai Group submits that there are significant safeguards present in the Horticulture Award 
to ensure that any vulnerabilities to which employees are exposed do not cause detriment:448

 The piecework rate must enable the average competent employee to earn at least 15% 
more per hour than the minimum hourly rate prescribed in the Horticulture Award 
for the type of employment and the classification level of the employee (cl. 15.2(b)) 

 The piecework rate agreed is to be paid for all work performed in accordance with 
the piecework agreement (cl. 15.2(b))

 The employer and the individual employee must have genuinely made the piecework 
agreement without coercion or duress (cl. 15.2(f)) 

 The piecework agreement between the employer and the individual employee must 
be in writing and signed by the employer and the employee (cl. 15.2(g)), and 

 The employer must give the individual employee a copy of the piecework agreement 
and keep it as a time and wages record (cl. 15.2(h)).

[390] As to the Unions’ contention that the safety net currently provided by clause 15.2 is 
inadequate or not working, Ai Group submits that these arguments ‘are less relevant to the issue 
of whether there currently is an adequate safety net than they are to the issue of adequate 
enforcement of existing provisions in the Award’449 and that:

446 Ibid at [309]–[311]
447 Ai Group submission, 1 June 2021 at [9].
448 Ibid at [22].
449 Ibid at [18].








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‘An amendment which is founded on an alleged failure of some employers to apply current 
provisions should not be made. Enforcement of existing provisions is a separate issue outside 
the purview of the Commission.’450

[391] As to the awards that the AWU submit contain piecework provisions, Ai Group submits: 

‘The guarantee of payment at an equivalent hourly rate of pay in these provisions should be seen 
as a substitute for the more generous safeguard which already exists in cl. 15.2(b) of the 
Horticulture Award which guarantees payment at a rate which enables the average competent 
employee to earn at least 15% more per hour than the minimum hourly rate prescribed in the 
Award for the type of employment and the classification level of the employee. None of the 
Awards utilised for comparison purposes in the AWU’s submission guarantees payment of the 
equivalent minimum hourly rate of pay in addition to a requirement that the rate set for 
piecework be such as to enable an average competent worker to earn a specified minimum 
percentage above the minimum hourly rate. The AWU’s application would unnecessarily apply 
two safeguards and dramatically reduce the incentive on the employer’s part for utilising the 
piecework rates at all.’451

[392] Ai Group submits that the AWU’s proposed variation would not satisfy the need to 
ensure a simple, easy to understand, stable and sustainable modern award. As to the arguments 
raised by the Union parties regarding uncertainty around the operation of clause 15.2(b), Ai 
Group contends such issues are not resolved by the Application.

[393] In respect of the ability of employees to make ‘genuine agreements’, Ai Group submits 
that asserted or actual non-compliance with an award provision should not be considered 
justification for adding additional entitlements to comply with:

‘Any failure to comply with the present conditions mandated under the Horticulture Award is 
appropriately met with an enforcement response. As discussed above, the Australian 
Government and the FWO have taken numerous steps to increase compliance with workplace 
obligations, both generally and in respect of the horticulture industry…Existing safeguards are 
adequate.’452

[394] Ai Group submits that, contrary to the AWU’s suggestion, asserted growth in the labour 
hire industry should have no bearing whatsoever on the Commission’s decision in determining 
the Application, noting:453

 Engagement of labour hire is a legitimate and essential option for many companies

 Labour hire employees are afforded the same protections under the Act and modern 
awards as other employees, and

 Labour hire operators are subject to greater regulation in some jurisdictions, with 
labour hire licensing schemes in place in Victoria, Queensland, South Australia and 
the Australian Capital Territory.

450 Ibid at [13].
451 Ibid at [38].
452 Ibid at [65]–[66].
453 Ibid at [70]–[71].








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[395] Ai Group submits that the AWU’s submission in respect of the impact of a recording of 
hours requirement is ‘misguided’.454 Ai Group submits that an employer would need to take the 
steps outlined at [26]–[38] of Rangiah J’s decision in Hu (No 2), which involve identifying the 
characteristics of the hypothetical average competent employee and predicting the pick rate of 
that employee and that:

‘At most, this would require reassessment of 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 
each time a relevant variable that could impact that rate changes.’455

[396] Ai Group contends that it is unclear how a failure to provide employees with a record 
of their working hours inhibits their capacity to determine whether they are being paid correctly 
pursuant to clause 15.2(b), as the minimum piecework rate is not determined on the basis of an 
individual’s hours of work.456

(iii) NFF

[397] The NFF opposes the Application and advances 3 broad lines of argument:457

1. The proposed variation will not serve the intended purpose; it will not make the 
safety net ‘appropriate’:

‘the application is attended by a series of negative consequences which are likely 
to affect employees engaged by horticulture producers and growers, to change 
the balance of workers seeking work there; and are likely to render the industry 
less productive’458

2. The proposed variation will result in changes to the types of employees who will 
obtain work in the future; the engagement and utilisation of technology or 
alternative means of farming and dismissing or not hiring unproductive workers.

3. The proposed variation will put economic pressure on growers.

[398] The NFF submits that the ‘safety net currently provided under clause 15.2 is appropriate 
and sufficient for the horticulture industry.’459

[399] The NFF submits that the Commission should find that the AWU’s Application and 
evidence relied upon do not warrant varying the Horticulture Award, and that the AWU has 
failed to demonstrate a causative link between its submissions and evidence. The NFF submits 
that if there is a ‘cure needed’, the Application may not address that complaint and that non-

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]. 








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compliance is a matter to be dealt with under the existing facilities of the Act.460 As to the last 
point the NFF submits: 

‘This is an approach which is misconceived, on several levels. The first level involves the 
consideration of non-compliance. If there be wide-scale [non-compliance] (which NFF submits 
is not made out, whether from the AWU’s material nor from any other direct source) then such 
a compliance matter is dealt with under the existing facilities of the FW Act. That is only a minor 
point in favour of an award variation and substantially outweighed by countervailing 
considerations. 

In particular, the conclusions of the AWU in relation to compliance have the aspect of a 
hypothetical solution to an unspecified and unexplained problem. The Commission should 
conclude (on the basis of the NFF’s statements) that [the] vast majority of employees whose pay 
and wage records are specified in the NFF’s material earn greater than 15% above the Award 
minima. A significant portion of those employees (such as annexed to the Kelly statement (at 
exhibit ‘A’) earn significantly above this sum.’461

(iv) Fruit Growers Tasmania

[400] Fruit Growers Tasmania (FGT) is a not-for-profit association with over 80members who 
grow fruit across all 3 regions of Tasmania. FGT represents growers who directly employ 
around 1,500 people in on-going roles and over 8,000 people in seasonal roles in the peak of 
the season. It opposes the Application. 

[401] FGT submits that the AWU is ‘wrongly conflating the very serious issue of the 
underpayment of workers with merits of a legitimate payment system’ and contends that the 
underpayment of workers is not simply a pieceworker rate issue.462 

[402] FGT submits that pieceworker rates benefit both the worker and the employer by driving 
productivity and providing flexibility and incentives for the worker. FGT submits that the 
Application will undermine the fairness and effectiveness of pieceworker rates, contending:

 The AWU’s argument that the ‘majority of casual pieceworkers earn well below the 
minimum hourly rate’ is factually incorrect with respect to the Tasmanian industry.463

 The AWU’s argument that current arrangements are impossible for employees to 
understand is not correct; ‘many thousands of employees in the Tasmanian fruit 
industry happily work to the current arrangements’, including those with English as 
a second language, foreign workers, international students and those on SWPs.464

 Pieceworker rates without a floor do not create a loophole in the modern award ‘safety 
net’; clause 15.2(b) constitutes a safety net and Tasmanian fruit growers set their 

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.








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piece rates to comply with this requirement. FGT submits that ‘just because some 
workers earn lower “effective” hourly rates does not in itself imply a loophole in any 
‘safety net[’], without further investigation and justification.’465

 The introduction of a minimum hourly rate as a floor would break the current direct 
relationship between productivity and rate of pay and make the system ‘less 
productive’ – all workers would be paid the same irrespective of productivity.466

 Employers will be incentivised to recruit workers who are sufficiently productive, 
which would be costly for employers. Growers will be attracted to recruiting 
experienced workers, who are typically international workers.467 

 The AWU’s argument that Australians would be attracted to work in horticulture if a 
floor was set is misplaced; such opportunities already exist and are not pursued by 
Australians and an incentive already exists by virtue of clause 15.2(b) of the 
Horticulture Award.468

[403] FGT also submits that the Application would deny ‘young, young at heart people, and 
other workers who currently participate happily and freely in fruit picking work’ the 
opportunity to work at pieceworker rates lower than the suggested floor. In particular:469

 pieceworker rates encourage workers of many different skills, physical capabilities 
and commitment levels and under the current system, all persons undertaking the 
same work are rewarded equally, with productivity being the sole factor in 
determining the rate.

 inexperienced workers, older workers and those with impaired capabilities or 
aptitudes will be excluded from participating because, despite being ready, willing 
and able, growers will not be able to afford to pay the equivalent of higher per-unit 
costs for workers whose productivity is less than the floor price. 

5.4 Individual Businesses

(i) Payne’s Farm Contracting Pty Ltd

[404] Payne’s Farm Contracting Pty Ltd (Payne’s) opposes the Application. 

[405] Payne’s offers specialist pruning services to growers in Sunraysia, and prior to the 
COVID-19 pandemic, worked in eastern Victoria, southern NSW and South Australia.

[406] Payne’s asserts that over the last few years it has lost business to competitors who 
undercut them, but claims that it is not because of misuse of the pieceworker rate provisions: 

465 Ibid at 4.
466 Ibid.
467 Ibid at 5.
468 Ibid at 6.
469 Ibid at 6–7.








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“• The most popular method employed by our competitors is to classify their workers as ‘part 
time’ when in fact they are actually casual. This allows a significant reduction in the hourly 
rate charged. If the AWU is concerned about the incorrect use of Piece Rate then I would 
suggest that this is equally rife. 

 Our competitors seem to have a much larger supply of workers than we’ve ever been able to 
attract even though our pay rates are higher. How is this? Their workers are either illegal or 
are (in one region a large community who arrive at the site with their whole extended families 
[including grandparents and small children] and pool their work, are already in receipt of 
welfare payments and are paid in cash for their work). 

 Other competitors have a number of sub-contractors who dilute the takings at each stage and 
blur the lines of command, use illegal workers and again – pay in cash. 

 The preference for cash of course means that there will be no paper trail and the contractor 
avoids the expense and admin associated with paying WorkCover, Superannuation, PAYG 
and GST – all of which take its toll on our company. And given that the government 
withholds 65% of superannuation paid to backpackers – who can blame them?’470

[407] Payne’s primary submission is that better enforcement of current laws is required, rather 
than more regulation. Payne’s submits that ‘changes to the Piece Rate arrangements will not 
improve the situation or effect [sic] those operating outside of the law’.471

(ii) Lucaston Park Orchards

[408] Lucaston Park Orchards (LPO) opposes the AWU application. 

[409] LPO is a family business growing raspberries, cherries and apples and submits that 
many of its pickers earn well in excess of the hourly award rates, with some earning up to $540 
per day picking cherries and $420 per day picking apples. 

[410] LPO submits that: 

 Introducing a floor price would remove incentive and reward for effort which are ‘the 
two cornerstones of piecework’ and will exclude a whole demographic of slower 
workers.472 

 The focus of the Application is misplaced:

‘Perhaps there needs to be more emphasis on prosecuting non-compliant employers, 
rather than a knee-jerk reaction to the perhaps 5% who are not doing the right thing and, 

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.








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in the process, penalising the 95% of employers in our industry who are seeking to abide 
by the Award.’473

 Employers in this industry operate in a ‘tight labour market’ and could not ‘add the 
extra cost onto what our product sells for’.474 

[411] LPO submits that ‘if there needs to be a trade-off, to keep the existing arrangements, 
then the 88-day farm work requirement to extend Working Holiday Visas should be 
scrapped’475:

‘When it was first introduced, it appeared to be a good thing to help farmers. However now it is 
apparent that it can put backpackers in a vulnerable situation with unscrupulous employers who 
have no intention of doing the right thing under the Award.’476

[412] LPO submits that the Commission should ‘leave the Horticulture Award as it now 
stands’, as well as doing the following:

‘1. Push for scrapping the 88-day requirement to work on farms in order to extend working 
holiday visas. 

2. Encourage prosecution of non-compliant operators. 

3. Do not do anything to penalise the majority because of a minority, who will not abide by the 
rules no matter what the rules say. 

4. Understand that the answer to the small amount of non-compliance, is not more rules.’477

5.5 Union Submissions in Reply

AWU

[413] The AWU addresses 3 merit arguments in its reply submissions.

(i) Employees who are not competent (within the meaning of clause 15.2)

[414] The AWU notes that some submissions suggest that the existing pieceworker provisions 
are justified by the fact that horticultural workers may take a period of time to learn the skills 
involved and become competent to pick produce at a reasonable rate and  that it would be unfair 
and/or undesirable for employers to be required to pay employees at least the minimum hourly 
rate whilst being inducted or trained or in the period it may take for an employee to work at the 
average rate.

[415] In reply, the AWU says that these submissions should not be accepted for 3 reasons:

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.








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1. The concern is overstated; evidence of multiple growers indicates that it can take 
as little as a day or 2-3 days before a worker is able to start picking at the rate of 
a competent worker.478 The AWU submits that a: ‘short period of familiarisation 
with the work hardly justifies payment below minimum rates for the type of 
work.’479

2. The basis upon which it is said to be fair for an employee, whilst expending time 
and effort being trained and acquiring skills to benefit the employer, should be 
paid at below the minimum hourly rate is not identified. The AWU submits that 
the Level 1 rate is set as the proper rate for a new employee undertaking ‘induction 
training’.480 Even if there is a period during which a new employee is trained and 
acquires skills on the job, the proper and fair rate for the employee to be 
remunerated is the Level 1 rate. The AWU submits:

‘If an employee continues to fail to perform work to a reasonable level of competence, 
the employer is under no obligation to retain the employee in employment, particularly 
where the employees are engaged as casuals. The evidence indicates that employers will 
not engage or will let go or reassign employees who persistently fail to reach a 
reasonable level of competence.481 This is unsurprising given the evidence put forward 
as to the urgency of the harvesting task. It is inconsistent with the asserted urgency of 
the picking and harvesting task to assume that employers would retain a substantial 
cohort of employees who fail to reach a reasonable degree of competence.’482

3. Some of the submissions also suggest that some groups of employees wish to 
work slowly and to earn lower rates of remuneration, including backpackers and 
‘grey nomads’.483 In reply, the AWU submits that the evidence in support of these 
submissions is ‘unconvincing’: 

‘Much of the evidence suggests that producers will not engage inefficient workers or 
require a worker who is not picking at a reasonable rate to move on even if they are 
being paid on piece rates. The Commission could not be satisfied, on the evidence, that 
this issue is one of substance. In any event, the willingness of a small cohort of 
employees to work for below minimum rates, even if established by evidence, provides 
no basis for the Commission to fail to provide a fair and relevant safety net. Minimum 
rates are set as appropriate for the type of work involved and cannot be contracted out 
of.’484 [Footnotes omitted]

(ii) Compliance/enforceability

[416] The AWU notes that a number of the submissions suggest that the variation should not 
be made because the true complaint by the AWU is that there is widespread non-compliance 

478 Exhibit NFF 1 at [18]; Exhibit NFF 4 at [16]; Exhibit NFF 2 at [13], [22]; Exhibit 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]. 








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with the existing pieceworker provisions and that non-compliance should be addressed through 
the enforcement provisions of the Act. In reply, the AWU contends that these submissions 
overlook 2 considerations:

1. The nature and structure of an award obligation may affect the ease of its 
enforceability and compliance with the minimum standards. The AWU submits 
that the difficulty in enforcing the existing piecework provisions arises from, or 
at least is contributed to, by the nature of the award provision:

‘The fact the minimum rate for a pieceworker is not set by reference to a certain 
and clear minimum exacerbates the risk of exploitation of vulnerable workers 
and the prevalence of non-compliance. Award provisions which are dependant 
on discretionary and subjective assessments to be made by the employer lack 
objectivity, transparency, simplicity and enforceability.485 The inclusion of a 
floor of remuneration for employees engaged on piecework agreements 
calculated by reference to an easily ascertainable hourly rate of pay would 
provide a straightforward mechanism for individual employees to know whether 
they are being appropriately paid and for inadequate piecework arrangements to 
be detected and sanctioned.’486

The AWU submits that ‘the uncertain and subjective assessment required to 
apply clause 15.2(b) of the Horticulture Award inevitably provides a substantial 
barrier to individual employees being able to assess whether they are being paid 
correctly and to effective enforcement of the Award by employees, unions or the 
Ombudsman.’487 

The AWU also submits that the ‘bald statement’ in clause 15.2(f) that the 
employer and the individual employee must have ‘genuinely made the 
piecework agreement without coercion or duress’ provides: 

‘little more than an aspirational standard. It is unlikely to prevent an employer 
offering employment on the basis that the employee accept the proferred piece 
rate on a take it or leave it basis or provide the basis for employees to 
meaningfully negotiate in relation to the piecework rate.’488

2. The objects of the Act include the object of ‘ensuring a guaranteed safety net of 
fair, relevant and enforceable minimum terms and conditions through the 
National Employment Standards, modern awards and national minimum wage 
orders.’ Further, the Commission is required, by s.134(1)(g), to ensure that the 
modern award system is ‘simpl[e], easy to understand, stable and sustainable’. 
The AWU submits that ‘Award provisions that lack objectivity, transparency, 
simplicity and enforceability will not achieve the modern awards objective, 
particularly for vulnerable groups of workers.’489

485 See Re 4 Yearly Review of Modern Awards — Supported Employment Services Award 2010 [2010] FWCFB 8179; (2010) 
293 IR 1 at [341]–[342], [366].

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]. 








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The AWU also submits that the assertion that legal reforms and compliance 
initiatives from the FWO ‘have gone a long way to tackling non-compliance with 
horticulture industry employers’ obligations to their workers’490 is ‘entirely 
unsupported by evidence’: 

‘The continued focus of the Ombudsman on the industry demonstrates its 
ongoing concern in relation to compliance. Further, the presence of licensing 
schemes for labour hire providers in some states and territories provides no 
basis for the Commission to refrain from addressing difficulties in the 
horticulture industry.’491

(iii) Requirement to retain a record of hours worked

[417] The AWU submits that the complaints advanced by some employer parties492 that the 
requirement to maintain a record of hours for pieceworkers would impose an administrative 
burden on employers are ‘not persuasive’: 

‘The only additional administrative task suggested is the requirement to maintain records of the 
hours of work of employees. The Commission would not consider any additional regulatory 
burden to be a substantial factor in its consideration, particularly where it is an effective means 
of ensuring there was no employee disadvantage by reason of pieceworker arrangements.

Proper compliance with the obligation to set a piecework rate that enables the average competent 
employee to ear[n] at least 15% more per hour than the minimum hourly rate would require 
monitoring of the hours of work of pieceworkers in any event. The evidence suggests that many 
producers already claim to track or monitor the hours of work of pieceworkers and, as such, 
would experience little (if any) additional burden. Further, the alternative proposal advanced by 
the APFA positively suggests that employers ought to be required to maintain records of hours 
worked by pieceworkers.’493

UWU

[418] In its reply submission the UWU deals with 4 merit arguments.

(i) Employees covered by the Horticulture Award who are pieceworkers are frequently 
paid less than the equivalent of the award hourly rate

[419] The UWU submits that the application of clause 15.2 ‘frequently results in employees 
being paid a wage that is less than the equivalent of the Award hourly minimum rate’. The 
UWU notes that the AFPA submits that none of the evidence relied on by the Unions constitutes 
‘a reliable quantitative assessment of the level of industry compliance’ such as to persuade the 
Commission that the variation is necessary. In reply the UWU submits:

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]. 








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‘In making this submission, the AFPA seeks to elevate a particular (undefined) standard of 
quantitative evidence as the only acceptable source of evidence that could justify the application. 
Simultaneously, the AFPA and other opposing parties fail to address that the overwhelming 
preponderance of the evidence supports the unions' case that pieceworker rate agreements often 
result in workers earning far less than the minimum wage to which every other award-covered 
employee in Australia is entitled.

The AFPA has not produced any evidence, quantitative or otherwise, in support of the 
proposition that pieceworker rates are functioning as a 'safety net' for workers. This is not 
surprising, given that the AFPA effectively concedes by its proposed variation that clause 15.2 
is unworkable in its present form.’494

[420] The UWU also submits that: 

‘The industrial reality is that clause 15.2 is frequently used to attempt to legitimise a wage which 
is less than the equivalent of the relevant minimum wage, and which has resulted in large-scale 
under-award payments.

Perfect compliance (which is impossible in relation to this clause) would still result in employees 
frequently being paid below the relevant modern award hourly minimum rate. This is 
inconsistent with the notion of a fair and relevant minimum safety net of terms and conditions, 
taking into account the modern awards objective.’495

(ii) Clause 15.2 is frequently misapplied and is unworkable

[421] The UWU contends that clause 15.2 is ‘frequently misapplied and is unworkable’:

‘This unworkability frequently results in employees who are "average competent employees" and 
who are pieceworkers being paid less than at least 15% more per hour than the minimum hourly 
rate. Further, the uncertainty in the operation of the clause results in circumstances where even 
an employer attempting to comply with the award in setting piecework rates faces a strong 
likelihood that their rates are not Award compliant.
…

A key challenge is that to apply clause 15.2 correctly, the calculation as to what the "average 
competent worker" can earn requires constant adjustment for variables (such as seasonal factors, 
adjustments in underlying minimum rates etc). The evidence filed by interested parties opposing 
the variation shows this rarely happens (in addition to various other flaws in the methodology). 
This is not a case in which the classification of a complex clause and/or an enhanced compliance 
regime is sufficient. This is a broken provision. The insertion of a minimum rate guarantee 
would ensure that employers and employees are able to predict their base-line costs/earnings in 
a manner more consistent with the simple, easy to understand and stable modern award system 
envisaged by section 134(1)(g).’496 [Footnotes omitted]

(iii) The purpose of pieceworker provisions

494 UWU submission in reply, 5 July 2021 at [5]–[6].
495 Ibid at [8]. 
496 Ibid at [10]. 








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[422] The UWU contends that the requirement in clause 15.2 to fix and pay at least minimum 
piecework rates is ‘intended to be protective of employees, and to guarantee employees an 
adequate rate’ and ‘the provisions are simply not achieving the intended purpose.’497

(iv) No material impact on employment, employment costs, productivity, or regulation

[423] The UWU notes that some of the employer submissions argue that if the variation is 
made, then employers will cease using pieceworker rates, because they will otherwise be 
exposed to higher than expected employment costs. For example, the AFPA argues that the 
variation if made would mean that pieceworker engagement becomes unattractive for 
employers, because employers would then face "the double whammy" of both the minimum 
hourly rates and the 15% uplift.

[424] In reply the UWU submits that this is ‘not a relevant detriment’:

‘This argument proceeds from the assumption that employers who engage workers under clause 
15.2 are not presently paying both the minimum hourly rate and the 15 per cent uplift. However, 
a proper pieceworker rate arrangement should have that effect. It follows that the ‘harm’ 
identified by the AFPA is simply the obligation to pay wages in accordance with the terms of 
the Award.’498

[425] Some of the employer parties argue that if employers cease using pieceworker rates, 
then employees will be deprived of the opportunity to earn more than the minimum award rate. 
In response, the UWU submits:

‘This submission is entirely speculative and, even if the speculation was borne out, is in any event 
unsustainable. It cannot be said that a consideration of the relative living standards and the needs 
of the low paid weighs in favour of the retention of a provision which results in some (or many) 
employees being paid less than the award minimum rate, simply to retain the ability for some 
others to earn more than the minimum rate. This is especially so given that employees are 
frequently paid less than the equivalent of the award minimum.

Further, even if an employer was to cease using pieceworker rates, they could and may well still 
offer employees bonuses for higher performance - particularly if such incentives are as effective 
as driving productivity as some parties submit is the case.’499

[426] As to regulatory burden, the UWU submits that: 

‘any increase in the regulatory burden by the requirement to keep a record of hours worked is not 
substantial, and when compared to the records that employers should be keeping if engaging 
workers on pieceworker rates, is not a net increase in the regulatory burden.’500 

[427] The UWU notes that the variation proposed by the AFPA includes a record-keeping 
requirement similar to that proposed by the AWU.

497 Ibid at [15].
498 Ibid at [24].
499 UWU submission in reply, 5 July 2021 at [26]–[27].
500 Ibid at [34].








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6. CONSIDERATION

6.1 Merit Arguments

[428] As mentioned in section 2 of this decision, variations to modern awards must be justified 
on their merits and the Commission may only vary a modern award if satisfied that the variation 
is ‘necessary to achieve the modern awards objective’.

[429] A summary of our key findings is set out at section 4.6. The evidence supports a finding 
that the characteristics of the seasonal harvesting workforce in the horticulture industry render 
it vulnerable to exploitation. A substantial proportion of the seasonal harvesting workforce are 
engaged on piece rates and there is widespread non-compliance with clause 15.2 of the 
Horticulture Award. The industrial reality is that piece rates are not determined in accordance 
with the method prescribed by clause 15.2; they are set and varied unilaterally by the grower 
and offered to employees on a take it or leave it basis (rather than being the product of genuine 
negotiation and agreement) and pieceworkers are usually not provided with a written piecework 
agreement. Further, a significant proportion of pieceworkers earn less per hour than the 
National Minimum Wage.

[430] In short, the existing pieceworker provisions in the Horticulture Award are not fit for 
purpose; they do not provide a fair and relevant minimum safety net as required by s.134 of the 
Act.

[431] Two alternative variations were advanced in the proceedings; the Application by the 
AWU to insert a minimum wage floor into clause 15.2 and the AFPA’s proposal. It is 
convenient to turn first to the AFPA’s proposal. 

[432] In its opening submission, the AFPA proposed an alternative variation if the 
Commission were to form the view that the current piecework provisions need to be varied.501  
That alternative variation is said to be designed to preserve the concept of a piecework-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.502  A ‘possible draft implementation’ of this proposal is set out 
at Appendix D to the AFPA’s submissions503 and is reproduced at Attachment F to this decision.

[433] The AFPA’s alternate proposal, as set out in its opening submission, has 5 major 
elements: 

1. It prescribes a specific process to determine the piecework rate, as follows:504

(a) The employer must identify the cohort of competent employees, with 
‘competent employee’ to be defined as someone who is suitable, 
sufficient or adequate to perform the work.  The definition would also 

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].








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make it clear that the employee need not be ‘proficient’ to be competent.  
This part of the variation will provide specific guidance to employers as 
to how to set the competence threshold having regard to the complexity 
of the work and other factors.  Importantly, an employee would be 
deemed to be competent after they have been performing the task for a 
prescribed period (indicatively, 4 weeks as a catch-all outer limit);

(b) The employer must calculate (or, in the case of the initial setting of the 
piecework rate, estimate):

(i) the total output505 of the cohort of competent employees in a 
relevant period (Total Output) and

(ii) the total combined hours of work of this cohort during the same 
relevant period (Total Hours)

(c) The employer must divide the Total Output by Total Hours to obtain the 
Average Hourly Output of a Competent Worker, and

(d) For each applicable classification and type of employment, the employer 
must take the applicable minimum hourly rate, add 15% and then divide 
by the Average Hourly Output of a Competent Worker.  The result is the 
minimum piecework rate.

2. The employer is required to review and adjust the piecework rate at prescribed 
intervals (say, every pay period) to make sure that it is set appropriately.506  

3. To provide further protection to novice employees who have not yet become 
competent, the employer is required to pay these employees at the level of the 
slowest competent employee.  

4. The employer is required to keep a record of all hours worked by a pieceworker, 
as well as the calculations set out above.

5. The employer is required to pay a pieceworker at the applicable minimum hourly 
rate (instead of the piecework rate) for any work that does not yield any 
piecework output and is not an inherent part of the piecework.

[434] The 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

505 Measured in an appropriate unit, such as punnet, bucket, kilogram, etc. 
506 AFPA submission, 11 June 2021 at [44].








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 largely avoid the adverse consequences of the AWU’s proposed variation set out in 
the previous section of the submission.507

[435] Further, the AFPA submits that its alternate proposal ‘addresses the issues raised by the 
Union Parties while preserving and continuing the concept of a piecework-based safety net with 
an uplift, which is important to both employers and employees in the horticulture industry.’508

[436] In its reply submission, the AWU responds to the AFPA’s alternate proposal as follows: 

‘The alternative proposal advanced by the AFPA does not adequately address the fundamental 
problem with the current pieceworker provisions of the Horticulture Award, namely, that the 
standard set by clause 15.2(b) is subjective and uncertain and that an individual employee will 
have little practical ability to assess whether the proposed rate is properly set. Furthermore, the 
proposal would fail to ensure that employees are not required to work for below the properly set 
minimum hourly rate. The alternative proposal would also involve a substantially greater 
administrative burden on employers than the variation sought by the AWU.’509 [Footnotes 
omitted]

[437] In its reply submission, the UWU supports the intention behind the AFPA’s alternate 
proposals but submits ‘they do not go far enough’: 

‘The proposals on their own will not resolve the fundamental inconsistency between clause 15.2 
and the concept of a fair and relevant minimum safety net of terms and conditions, given the 
frequency with which employees covered by the Award are paid less than the equivalent of the 
Award minimum for work performed.’510

[438] In terms of transparency and fairness, the AFPA’s proposed clause is an improvement 
on the current clause 15.2; but it is far too complex and such complexity would be a barrier to 
compliance. There is some substance to the AWU’s critique; the proposal does not ameliorate 
the complexity inherent in the current term and nor does it adequately address the subjectivity 
inherent in the selection of a ‘competent pieceworker’. This complexity is illustrated by clause 
15.2(k) of the AFPA’s possible draft implementation of their proposal, which sets out the 
process for calculating the minimum piecework rate for a particular task, as follows:

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

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]. 








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 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.

[439] Proposed clause 15.2(l) then defines a ‘competent pieceworker’ as follows:

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.  

[440] For the reasons given, we do not propose to adopt the AFPA proposal. We now turn to 
the AWU’s proposal.

[441] The employer interests advance 3 broad lines of argument against the introduction of a 
minimum wage floor:

 it undermines the efficacy of piecework;
 underpayment and other forms of non-compliance do not provide a basis for varying 

the Award; and
 a range of adverse consequences will result.

[442] As to the first line of argument, the AFPA contends that introducing a minimum wage 
floor will ‘eviscerate the piecework-based safety net by throwing out the risk-reward bargain.’

[443] As we state at [73] above, the AFPA’s characterisation of the existing piecework 
provisions as a ‘risk-reward bargain’ is misconceived. The evidence as to the practical operation 
of the existing provisions makes clear that it is the employee who bears all the risk.

[444] We accept that introducing a minimum wage floor will have consequences, but one of 
them is not ‘the evisceration of the piecework-based safety net’.

[445] The essence of the second line of argument is that the issues raised with respect to 
underpayment and non-compliance ‘go to the enforcement of the award and should not ground 
a variation’.511 In particular, Ai Group contends: 

‘The Unions raise issues with the capacity of an employee to genuinely reach agreement as 
required under cl. 15.2 on an appropriate piecework rate. Such issues are a red herring. The 
Horticulture Award prohibits coercion of an employee into making an agreement. Any 
contravention of the Award would expose an employer to an appropriate penalty. Altering the 

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








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Award as proposed by the AWU would not make non-compliant employers more likely to apply 
the provisions of the Award …’512

[446] In support of this submission Ai Group advances 2 broad points. First, it  says that there 
are ‘significant safeguards’ in the current award term ‘to ensure that any vulnerabilities to which 
relevant employees are exposed do not cause a detriment’,513 in particular: 

 ‘The piecework rate must enable the average competent employee to earn at least 15% more 
per hour than the minimum hourly rate prescribed in the Award for the type of employment 
and the classification level of the employee (cl. 15.2(b));

 The piecework rate agreed is to be paid for all work performed in accordance with the 
piecework agreement (cl. 15.2(b));

 The employer and the individual employee must have genuinely made the piecework 
agreement without coercion or duress (cl. 15.2(f));

 The piecework agreement between the employer and the individual employee must be in 
writing and signed by the employer and the employee (cl. 15.2(g)); and

 The employer must give the individual employee a copy of the piecework agreement and keep 
it as a time and wages record (cl. 15.2(h)).’514

[447] Second, Ai Group submits that ‘[n]umerous efforts geared towards improving 
compliance in workplaces nationwide have been implemented over the last four years’ and 
that:515

‘The full impact of some of these has not yet been felt and it is premature to seek reform of a 
modern award to tackle an issue which is best addressed through compliance and 
enforcement.’516

[448] In this context, Ai Group refers to: 

 ‘Failure to pay employees correctly can potentially result in an individual receiving a penalty 
of $13,320 ($66,600 in the case of a corporation).’517 

 The Fair Work (Protecting Vulnerable Workers) Act 2017 (Cth) amended the Act ‘to 
introduce the concept of a ‘serious contravention’ of a workplace law. This applies where there 
is a ‘knowing’ contravention or the contravention formed part of a systematic pattern of 
conduct involving one or more persons. In such a case, the maximum penalties rise to 
$666,000 for a corporation.’518 

512 Ibid at [8].
513 Ibid at [22].
514 Ibid.
515 Ibid [26]. 
516 Ibid. 
517 Ibid at [27].
518 Ibid at [28].








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…

 ‘In addition, a reverse onus of proof was implemented for circumstances where an employer 
fails to comply with the pay record and pay slip requirements in the FW Act. In such 
circumstances, if an employee makes a claim for unpaid entitlements, the employer is 
required to disprove the employee’s claim in Court, rather than the employee bearing the 
onus of proof. The Amendments came into operation on 15 September 2017.’519

 ‘Workers who believe that they have not received their correct entitlements under the Act have 
a number of options to achieve redress. Applications may be made to the Industrial 
Magistrates Courts, the Federal Circuit Court or the Federal Court of Australia.’520 

[449] In the context of FWO’s enforcement activities, Ai Group refers to:521

 The FWO role is to monitor compliance with, and investigate breaches of, the FW Act and 
fair work instruments (including modern awards and enterprise agreements).The FWO is a 
very well-resourced and effective regulator.

 In June 2019, the FWO announced that the FWO’s 2019/20 Compliance and Enforcement 
priorities would include Horticulture and the Harvest Trail.522 Horticulture and the Harvest 
Trail were also included in the FWO’s 2020/21 Compliance and Enforcement priorities.523

 The FWO strengthened its compliance and enforcement posture in mid-2019 following an 
internal capability review.524 Over the FWO’s last reporting period, the FWO issued 952 
compliance notices, more than 3 times the number issued in the 2018/19 reporting period and 
recovered nearly 8 times the monies recovered in that reporting period.525

 With a view to educating and assisting entities in the horticultural sector specifically, the 
FWO has established a new Horticulture Showcase including education videos on key 
topics.526

 The FWO has continued to implement its ‘Horticulture Strategy’ which involves:527

 building a culture of compliance in the horticulture sector, based on engagement, education 
and enforcement activities;

 running communications campaigns to educate employers and employees in the horticulture 
industry;

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.








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 initiating compliance activities in key regions

 revisiting non-compliant employers; and

 monitoring the Seasonal Worker Programme (SWP).

 The FWO’s compliance efforts have included translating relevant educational materials into 
36 languages.528

[450] Ai Group submits: 

‘The significant number of legal reforms and compliance initiatives from the FWO have gone a 
long way to tackling non-compliance with horticulture industry employers’ obligations to their 
workers. Varying the Horticulture Award to provide yet another layer of regulation will not 
encourage compliance. Any issues with the current safety net not being enforced are not 
addressed by the AWU’s proposed reforms.’529

[451] Similarly, the NFF submits:

‘the reason given for non-enforcement does not rise to the point of making out a case for 
amendment of the Horticulture Award.  Put simply, an enforcement question is only part of the 
equation.  Amending the Award is not (and could not be) a panacea for the enforcement of 
horticulture industry wages.  The AWU’s evidence (in particular) does not rise to the point of 
making out this case.  It is akin to making a hopeful gesture, in effect seeking some change on 
the part of the Horticulture Award would lead to greater enforcement and reduced adverse 
consequences.’530

[452] Two things may be said about these submissions.

[453] First, the proposition that there is some sort of disjunct between the Commission’s task 
under s.134 and promoting compliance with the terms of a modern award is incorrect. In 
considering the variation of a modern award, the Commission is entitled to have regard to the 
objective of promoting compliance with the award’s terms. Indeed, one of the objects of the 
Act is ensuring ‘a guaranteed safety net of fair relevant and enforceable minimum terms and 
conditions through …modern awards’ [Emphasis added].531 

[454] In carrying out the statutory directive in s.134 of ensuring that modern awards and the 
NES provide a fair and relevant safety net of terms and conditions, the Commission is not 
confined to a consideration of the matters set out in s.134(1)(a) to (h).  The range of matters in 
a particular case is determined by the subject matter scope and purpose of the Act. In our view, 
promoting compliance with the terms of a modern award is one such relevant matter. 

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.








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[455] Further, one of the considerations we are required to take into account in ensuring that 
modern awards, with the NES, provide a fair and relevant minimum safety net of terms and 
conditions is: 

‘the need to ensure a simple, easy to understand, stable and sustainable modern award system for 
Australia that avoids unnecessary overlap of modern awards.’532

[456] In Re Restaurant Industry Award 2020,533 the Commission had regard to the desirability 
of promoting compliance with the terms of a modern award in deciding to include exemption 
rates in the award:

‘Non-compliance is an issue in the hospitality sector and the most common breaches relate to 
under/non-payment of penalty rates. The reasons given for non-compliance by employers include 
paying flat hourly rates to save on administration costs but failing to adequately compensate 
employees for their full entitlement. We would expect that the inclusion of an exemption rate 
proposal would promote compliance – by specifying the rate which must be paid to ‘exempt’ an 
employee from the specified award entitlements; rather than leaving it to employers to ‘guess’ at 
an appropriate loaded hourly rate.’534

[457] Second, the ‘significant’ clause 15.2 safeguards identified by Ai Group are, in practice, 
illusory. As mentioned above non-compliance is widespread. Nor does enforcement of the 
current award term provide a practical solution.

[458] As Rangiah J observed in Hu (No 2):

‘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”… 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.’535

[459] The Hu Appeal dealt with the legal consequences of non-compliance with clause 15.2 
and held that paying a piecework rate which is less than the rate required by clause 15.2 is an 
award breach. It was also held in the Hu Appeal that an employee subject to a non-compliant 
piecework agreement does not, as a result of the breach, become entitled to the minimum hourly 
rate of pay specified in the Award. The only remedy for the employee is that they are instead 
entitled to an award of compensation calculated as the difference between the piecework rate 
that was paid and the piecework rate that ought to have been paid.

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].








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[460] The absence of record keeping obligations also makes enforcement problematic, as 
noted by Vasta J. in Fair Work Ombudsman v Seasonal Farm Services.536

[461] The final limb of the employers’ arguments against the introduction of a minimum wage 
floor speaks to the consequences of such a change. 

[462] The evidence of the employer lay witnesses was that granting the Application will 
adversely impact business in a number of ways, in particular:

 it will demotivate and disincentivise workers;537 

 it will reduce worker productivity;538

 it will inviably increase labour costs;539

 it will necessitate stricter standards of recruitment, or employers will look to employ 
certain types of workers (for example, Pacific Island Workers) or use labour hire;540

 it will require more robust training and monitoring of new starters and 
underperforming workers;541

 it will cause a movement away from certain produce, including ‘sensitive produce’ 
(i.e. – produce with a narrow harvesting timeframe), produce that is less labour 
intensive or produce that yields less profit; and542

 it will exclude workers who are happy to earn less and work at their own pace.543

[463] As noted in section 4.5.3 of this decision, much of this evidence is speculative in nature 
and of limited probative value. That said, the evidence supports a number of findings which are 
set out at 4.6. In short, the evidence suggests that the introduction of a minimum wage floor 
will have the following consequences:

1. It will create an economic incentive to manage unproductive workers, leading 
employers to take more active steps in the recruitment, supervision and 
management of pieceworkers.

2. It is likely that underperforming pieceworkers will be dismissed.

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].








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3. It may demotivate some underperforming employees and reduce productivity; 
but such underperformance can be managed, for example, by setting 
productivity targets.

4. To the extent that a minimum wage floor will require employers to pay 
underperforming employees the minimum hourly rate, it will increase 
employment costs.

[464] We have taken these consequences into account.

[465] In our view, the merits favour the insertion of a minimum wage floor, with consequential 
time recording provisions, into the piecework clause in the Horticulture Award. We now turn 
to consider the modern awards objective and the minimum wages objective.

6.2 Modern Awards Objective

[466] The modern awards objective is in s.134 of the Act and provides:

‘What is the modern awards objective?

134(1) The FWC must ensure that modern awards, together with the National Employment 
Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into 
account:

(a) relative living standards and the needs of the low paid; and

(b) the need to encourage collective bargaining; and

(c) the need to promote social inclusion through increased workforce participation; and

(d) the need to promote flexible modern work practices and the efficient and productive 
performance of work; and

(da) the need to provide additional remuneration for:

(i) employees working overtime; or

(ii) employees working unsocial, irregular or unpredictable hours; or

(iii) employees working on weekends or public holidays; or

(iv) employees working shifts; and

(e) the principle of equal remuneration for work of equal or comparable value; and

(f) the likely impact of any exercise of modern award powers on business, including on 
productivity, employment costs and the regulatory burden; and








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(g) the need to ensure a simple, easy to understand, stable and sustainable modern 
award system for Australia that avoids unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on employment growth, 
inflation and the sustainability, performance and competitiveness of the national 
economy.’

This is the modern awards objective.

When does the modern awards objective apply?

(2) The modern awards objective applies to the performance or exercise of the 
FWC’s modern award powers, which are:

(a) the FWC’s functions or powers under this Part; and

(b) the FWC’s functions or powers under Part 2-6, so far as they relate to modern 
award minimum wages.

Note: The FWC must also take into account the objects of this Act and any other applicable 
provisions. For example, if the FWC is setting, varying or revoking modern award minimum 
wages, the minimum wages objective also applies (see section 284).’

[467] The modern awards objective is very broadly expressed.544 It is a composite expression 
which requires that modern awards, together with the NES, provide ‘a fair and relevant 
minimum safety net of terms and conditions’, taking into account the matters in ss.134(1)(a)–
(h) (the s.134 considerations).545 Fairness in this context is to be assessed from the perspective 
of the employees and employers covered by the modern award in question.546 

[468] The obligation to take into account the s.134 considerations means that each of these 
matters, insofar as they are relevant, must be treated as a matter of significance in the decision-
making process.547 No particular primacy is attached to any of the s.134 considerations,548 and 
not all of the matters identified will necessarily be relevant in the context of a particular proposal 
to vary a modern award.

[469] It is not necessary to make a finding that the award fails to satisfy one or more of the 
s.134 considerations as a prerequisite to the variation of a modern award.549 Generally speaking, 
the s.134 considerations do not set a particular standard against which a modern award can be 
evaluated — many of them may be characterised as broad social objectives.550 In giving effect 

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.






http://www.fwc.gov.au/decisionssigned/html/2018fwcfb3500.htm


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to the modern awards objective, the Commission is performing an evaluative function taking 
into account the matters in ss.134(1)(a)–(h) and assessing the qualities of the safety net by 
reference to the statutory criteria of fairness and relevance.

6.2.1 s.134(1)(a): relative living standards and the needs of the low paid

[470] In successive Annual Wage Reviews, the Expert Panel has concluded that a threshold 
of two-thirds of median full-time wages provides ‘a suitable and operational benchmark for 
identifying who is low paid’, within the meaning of s.134(1)(a).551

[471] The most recent data for the ‘low paid’ threshold is set out below:552

 
Two-thirds of median full-time earnings

Characteristics of Employment survey (Aug 2020)

Employee Earnings and Hours survey (May 2018)

$/week

953.33

973.33

[472] All classification levels in the Horticulture Award are below both measures of two-
thirds of median earnings, and on that basis may be regard as ‘low paid’ for the purpose of 
s.134(1)(a).

[473] The AWU submit that the current piecework terms fail to properly take into account 
relative living standards and the needs of the low paid because they ‘result in employees 
systematically being paid below the minimum award rates’.553 The provision for guaranteed 
minimum earnings ‘will ensure that piecework arrangements cannot result in employees being 
paid less than the national minimum wage.’554

[474] The UWU submits that the current arrangements result in an ‘untenable situation’ where 
competent and experienced horticulture workers are paid piecework rates that do not enable 
them to earn their equivalent minimum hourly rate and have resulted in significant adverse 
consequence for workers.

[475] The UWU submits that the proposed variation ensures employees paid piecework rates 
have at least an adequate standard of living.

[476] Ai Group submits that s.134(1)(a) is either a neutral consideration, or weighs against the 
Application. Ai Group submits that when applied correctly, the piecework rates mandated under 
clause 15.2(b) do not diminish the living standards of those paid pursuant to that provision, 
rather, the current provision provide an avenue for employees to earn a great deal more than 
they would otherwise earn through time rates of pay.

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].








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[477] The NFF submits that contrary to the Unions’ position:555 

 The present Award terms enable the average (competent) pieceworker to earn 15% 
more than the amount which the Commission has assessed as adequate for a 
reasonable living standard

 Most pieceworkers are productive and receive well above the minimum wage, and

 The Application would restrict growers hiring experienced and productive workers, 
jettisoning or not hiring those who are less productive.

[478] We are satisfied that this consideration weighs in favour of varying clause 15.2 to insert 
a minimum wage floor. There is widespread underpayment of pieceworkers in the horticulture 
industry and, further, a significant proportion of pieceworkers earn less than the National 
Minimum Wage. The proposed variation will assist in rectifying this situation.

[479] The submissions advanced to the contrary, by Ai Group and the NFF, are unpersuasive. 
Ai Group’s submission is predicated on the proposition that the piecework rates prescribed by 
clause 15.2(b) are ‘applied correctly’. The evidence demonstrates the fallacy of this premise. 
Similarly, the NFF’s contention that ‘most pieceworkers’ earn ‘well above the minimum wage’ 
is not reflected in the evidence. The NFF’s contention that the variation would restrict the 
employment opportunities of the less productive is relevant to the s.134(1)(c) consideration, but 
not to the needs of the low paid.

6.2.2 s.134(1)(b) the need to encourage collective bargaining

[480] It is common ground that there is a low incidence of collective bargaining in the 
horticulture industry. 

[481] The AWU submits that at present, there is little incentive for employers to engage in 
collective bargaining.556

[482] The UWU submits that situations in which employees can be paid below minimum 
award wages create a disincentive to bargain and that efforts to make enterprise bargaining 
agreements have been ‘extremely challenging’.557 The UWU submits that as the minimum 
piece rate payable changes throughout the life of an agreement, formulating a collective 
bargaining agreement that requires employees to be ‘better off overall’ is ‘incredibly 
problematic’.558

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.








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[483] Ai Group and the NFF submit that s.134(1)(b) is a neutral consideration,559 and the NFF 
submits that ‘there is no evidence that a “floor” in the minimum hourly rate would lead to any 
consequence at all, such as bargaining.’560

[484] Section 134(1)(b) requires that we consider ‘the need to encourage collective 
bargaining’. We are not persuaded that the proposed variation would encourage collective 
bargaining. It follows that this consideration does not provide any support for the variation 
proposed.

6.2.3 s.134(1)(c) the need to promote social inclusion through increased workforce 
participation

[485] The use of the conjunctive ‘through’ makes it clear that in the context of s.134(1)(c), 
social inclusion is a concept to be promoted exclusively ‘through increased workforce 
participation’. That is, obtaining employment is the focus of s.134(1)(c).561

[486] The AWU submits that the proposed variation has ‘the potential’ to increase the 
‘attractiveness’ of work in the horticulture industry which in turn has ‘the potential’ to increase 
workforce participation.562

[487] The UWU submits that the current circumstances are a disincentive to workforce 
participation:

‘The prospect of working in difficult conditions both environmentally and physically, in 
circumstances where it is difficult to earn even the equivalent of the award minimum wage, is a 
disincentive in relation to workforce participation …The variation to the award that is sought by 
this Application would incentivise workforce participation in this sector of the industry.’563

[488] Ai Group submits that the Union submission that the proposed variation would increase 
workforce participation ‘should be viewed in the light of the potential disemployment effect’ 
that making the proposed variation would have: 

‘The significant numbers of ‘grey nomads’ and backpackers who enter the horticulture industry 
on a seasonal basis should be taken into account in determining whether the proposed 
amendments would indeed attract more entrants to the industry. Such workers are unlikely to 
have a background in horticulture and, in the case of elderly retirees, they are often using their 
employment in the industry to assist in financing their travels, and may not wish to work at the 
speeds required to meet the equivalent time rate of pay.

If employers are required to pay all pieceworkers at least at the equivalent minimum hourly rate 
of pay, this would require such employees to perform a quantity of work and meet productivity 
levels which would meet the cost of their labour. It is unlikely that employers would be capable 
of retaining many such employees were the AWU’s proposed amendments to be made. 

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)].








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Taking this into consideration, there is a likelihood that any incentive which a ‘floor’ in the 
minimum piecework rate would have for new entrants to the industry would be counterbalanced 
by the inability of employers to retain less productive staff.’564

[489] The NFF submits that this consideration weighs against the Application because:565

 an hourly rate will reduce the employability of those who are not productive, and

 it will result in increased supervision and selective hiring.

[490] The UWU submits that there are significant problems with the logic in the employer 
submissions, namely:

1. Picking and packing fruit and vegetables has to be done by someone;

2. It cannot be said that employees who are presently being paid less than the equivalent 
Award minimum will refuse to work or be less inclined to seek out the work if they 
are paid more money;

3. Employers could continue to employ the people who are presently being engaged in 
this work, on at least the equivalent minimum rate;

4. A significant majority of workers who are performing work in the industry are doing 
so because:

(i) they are sponsored by a horticultural industry employer and are 
limited by their visa conditions to continue to work for that employer 
in the horticulture industry (for example, Seasonal Worker Program 
(SWP) and Pacific Labour Scheme (PLS) participants); or

(ii) they are seeking to extend their visa by fulfilling a requirement to 
work for a specified period of time in a rural or regional area (eg. 
Working Holiday Makers (WHM)); and

5. Because of these visa settings, and the industry's structural reliance on them, 
temporary migrant workers (including WHM and SWP workers) will continue to 
seek employment in the industry. Employers are likely to continue to engage these 
workers, particularly considering labour supply constraints and shortages in the 
industry which have been exacerbated by the COVID-19 pandemic.

[491] The UWU also refers to its submissions and evidence in support of the contention that 
the ‘prospect of working in difficult conditions both environmentally and physically, in 
circumstances where it is difficult to earn even the equivalent of the award minimum wage is a 

564 Ai Group submission, 1 June 2021 at [103]–[105].
565 NFF submission, 11 June 2021 at [20].








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disincentive in relation to workforce participation.’566 The UWU submits that this submission 
has not been contradicted.

[492] As we mentioned above, we accept that introducing a minimum wage floor will create 
an incentive for employers to more actively manage unproductive workers; it is also likely that 
underperforming pieceworkers will be dismissed. As Mr King says in his witness statement:

‘In order to manage the increase in labour costs, Costa would need to introduce a lot stricter 
standards and expectations in its recruitment and in training and monitoring new starters, as 
well as more proactively monitoring underperforming workers, ultimately retaining only 
the strongest performers and accepting a higher rate of turnover (including as a result of 
terminating the employment of casual employees who do not perform strongly).

I expect that Costa, like any other grower, would consider doing this by introducing a 
minimum required output level, such that employees who are unable or unwilling to meet 
those minimum volumes may ultimately have their casual piecework employment terminated 
…

I anticipate that this approach would be feasible because at present approximately 80% of 
Costa’s product is picked by around 60% of our workforce of pickers. This means that Costa 
could significantly reduce its workforce size, retaining its best performers, without 
substantially reducing its production output.’567

[493] While the introduction of a minimum wage floor may increase the attractiveness of work 
in the horticulture industry and hence increase workforce participation; may well be outweighed 
by the negative employment consequences of introducing a minimum wage floor.

[494] On balance, this consideration weighs against varying the Horticulture Award to insert 
a minimum wage floor.

6.2.4 s.134(1)(d) the need to promote flexible modern work practices and the efficient and 
productive performance of work 

[495] The AWU submits that the requirement to pay pieceworkers at least the minimum award 
rates may encourage farmers to adopt more flexible and modern work practices, and that there 
is no reason to believe that a guaranteed minimum rate of earnings for pieceworkers would 
impede the efficient and productive performance of work.568

[496] The UWU submits that the current clause could not have been intended to promote 
efficient and productive performance of work because it disincentivises workforce participation 
by remunerating employees below the minimum award rate and employers who attempt to 
comply with the clause are required to engage in an ‘onerous and multi-factor assessment which 
must be reviewed every time there is a change in one of the many variables that make up its 
composition’.569

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)].








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[497] Ai Group submits that the Commission should not accept that the current piecework 
provisions encourage employers to drive down labour costs and submits that the imposition of 
a ‘floor’ would likely discourage employers utilising the piecework provisions as the 
productivity of higher performing employers would not offset the cost of lower performing 
workers. 

[498] Ai Group rejects the UWU’s submissions that complying with the clause is onerous, 
stating:

‘The imposition of a ‘floor’ below which minimum piecework rates may not fall would not remove 
any of the difficulties in determining the minimum piecework rate.’570

[499] The NFF submits that this consideration weighs against the Application because:571

 a reduction in positions and reduction in offers to ‘slower’ workers weigh against this 
consideration; and

 there is no evidence that piece-rates in the horticulture industry discourages workers.

[500] Contrary to the submissions of Ai Group and the NFF we are satisfied that the 
introduction of a minimum wage floor will promote the efficient and productive performance 
of work. It is likely that it will create an incentive for employers to manage unproductive 
workers and to take more active steps in the recruitment supervision and management of 
pieceworkers in order to increase their productivity. Some employers may make greater use of 
automation and machinery to reduce labour costs.

[501] This consideration weighs in favour of varying the Horticulture Award to insert a 
minimum wage floor.

6.2.5 s.134(1)(da) the need to provide additional remuneration for employees working 
overtime, unsocial, irregular or unpredictable hours, weekends, public holidays, or 
shifts.

[502] In the Penalty Rates Decision, the Full Bench made 5 observations about 
s.134(1)(da):572

1. Section 134(1)(da) speaks of the ‘need to provide additional remuneration’ for 
employees performing work in the circumstances mentioned in s.134(1)(da)(i), (ii), (iii) 
and (iv). An assessment of ‘the need to provide additional remuneration’ to employees 
working in the circumstances identified in paragraphs 134(1)(da)(i) to (iv) requires a 
consideration of a range of matters, including:

(i) the impact of working at such times or on such days on the employees 
concerned (i.e. the extent of the disutility);

570 Ai Group submission, 1 June 2021 at [109].
571 NFF submission, 11 June 2021 at [21].
572 Penalty Rates Decision at [188].








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(ii) the terms of the relevant modern award, in particular whether it already 
compensates employees for working at such times or on such days (e.g. through 
‘loaded’ minimum rates or the payment of an industry allowance which is 
intended to compensate employees for the requirement to work at such times or 
on such days); and

(iii) the extent to which working at such times or on such days is a feature of the 
industry regulated by the particular modern award.

The expression ‘additional remuneration’ in the context of s.134(1)(da) means 
remuneration in addition to what employees would receive for working what are 
normally characterised as ‘ordinary hours’, that is reasonably predictable hours worked 
Monday to Friday within the ‘spread of hours’ prescribed in the relevant modern award. 
Such ‘additional remuneration’ could be provided by means of a penalty rate or loading 
paid in respect of, for example, work performed on weekends or public holidays. 

2. The expression ‘the need for additional remuneration’ must be construed in context. 
The context tells against the proposition that s.134(1)(da) requires additional 
remuneration be provided for working in the identified circumstances. Section 
s.134(1)(da) is a relevant consideration, it is not a statutory directive that additional 
remuneration must be paid to employees working in the circumstances mentioned in 
paragraphs 134(1)(da)(i), (ii), (iii) or (iv). Section 134(1)(da) is a consideration which 
the Commission is required to take into account. 

The requirement to take a matter into account does not mean that the matter is 
necessarily a determinative consideration. This is particularly so in the context of s.134 
because s.134(1)(da) is one of a number of considerations which the Commission is 
required to take into account. 

3. Section 134(da) does not prescribe or mandate a fixed relationship between the 
remuneration of those employees who, for example, work on weekends or public 
holidays, and those who do not. 

4. Section 134(1)(da)(ii) is not to be read as a composite expression, rather the use of the 
disjunctive ‘or’ makes it clear that the provision is dealing with separate circumstances: 
‘unsocial, irregular or unpredictable hours’. Section 134(1)(da)(ii) requires that the 
Commission take into account the need to provide additional remuneration for 
employees working in each of these circumstances. The expression ‘unsocial … hours’ 
would include working late at night and or early in the morning, given the extent of 
employee disutility associated with working at these times. ‘Irregular or unpredictable 
hours’ is apt to describe casual employment.

5. Section 134(1)(da) identifies a number of circumstances in which the Commission is 
required to take into account the need to provide additional remuneration (i.e. those in 
paragraphs 134(1)(da)(i) to (iv)). Working ‘unsocial … hours’ is one such circumstance 
(s.134(1)(da)(i)) and working ‘on weekends or public holidays’ (s.134(1)(da)(iii)) is 
another. The inclusion of these two, separate, circumstances means that it is not 
necessary to establish that the hours worked on weekends or public holidays are 
‘unsocial … hours’.








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[503] The AWU submits that this is a neutral factor.573 Ai Group and the NFF also submit that 
this consideration is neutral.574

[504] The UWU notes that pieceworkers are not provided with additional remuneration for 
working overtime, unsocial, irregular or unpredictable hours, on weekends, on public holidays 
or shifts.575

[505] We think there is some substance to the UWU’s submission; clauses 13 ‘Ordinary hours 
of work and rostering arrangements’; and 21 ‘Overtime’, do not apply to an employee on 
piecework rates (see clause 15.2(d)).

[506] Contrary to the position put by the AWU, Ai Group and the NFF, this is not a neutral 
consideration. The proposed variation will ensure that pieceworkers receive at least the relevant 
minimum rate of pay for working overtime and unsocial hours. This consideration weighs in 
favour of varying the Horticulture Award to insert a minimum wage floor.

6.2.6 s.134(1)(e) the principle of equal remuneration for work of equal or comparable 
value

[507] The ‘Dictionary’ in s.12 of the Act states, relevantly: ‘equal remuneration for work of 
equal of comparable value: see subsection 302(2).’

[508] The expression ‘equal remuneration for work of equal or comparable value’ is defined 
in s.302(2) to mean ‘equal remuneration for men and women workers for work of equal or 
comparable value’. Hence, the appropriate approach to the construction of s.134(1)(e) is to read 
the words of the definition into the substantive provision such that, in giving effect to the 
modern awards objective, the Commission must take into account the principle of ‘equal 
remuneration for men and women workers for work of equal or comparable value’.576

[509] It is common ground that this consideration is a neutral factor;577 we agree. 

6.2.7 s.134(1)(f) the likely impact of any exercise of modern award powers on business, 
including on productivity, employment costs and the regulatory burden

[510] Section 134(1)(f) is expressed in very broad terms. The Commission is required to take 
into account the likely impact of any exercise of modern award powers ‘on business, including’ 
(but not confined to) the specific matters mentioned, that is, ‘productivity, employment costs 
and the regulatory burden’.

[511] The conventional economic meaning of productivity is the number of units of output 
per unit of input. It is a measure of the volumes or quantities of inputs and outputs, not the cost 

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].








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of purchasing those inputs or the value of the outputs generated. As the Full Bench observed in 
the Schweppes Australia Pty Ltd v United Voice – Victoria Branch:

‘… we find that ‘productivity’ as used in s.275 of the Act, and more generally within the Act, is 
directed at the conventional economic concept of the quantity of output relative to the quantity 
of inputs. Considerations of the price of inputs, including the cost of labour, raise separate 
considerations which relate to business competitiveness and employment costs.

Financial gains achieved by having the same labour input – the number of hours worked – 
produce the same output at less cost because of a reduced wage per hour is not productivity in 
this conventional sense.’578

[512] While the above observation is directed at the use of the word ‘productivity’ in s.275, it 
is also apposite in the context of s.134(1)(f).

[513] As to the impact on productivity, the AWU submits that the Application does not seek 
to remove the capacity of employers to utilise piecework agreements, provided that 
pieceworkers receive total remuneration at least equivalent to the hourly rate: 

‘Employers can continue to offer piece rates as an incentive for productive work. Properly set 
pieceworker arrangements will continue to offer an average competent employee the opportunity 
to earn at least 15% more than the hourly rate. The Commission would not be satisfied that the 
variation would have any substantial impact on productivity where piece rates remain available. 
There is no evidence that the presence of a minimum payment guarantee in other awards destroys 
the utility or effectiveness of piece rates. The speculative assertions of the producers who express 
concern that productivity will be affected should not be accepted.’579

[514] The AWU concedes that the proposed variation will impose some additional regulatory 
burden, but submits that such imposition is slight and does not represent a persuasive factor in 
the assessment of the application given the following considerations:580

1. An employer engaging employees on piecework rates is already required by clause 
15.2(b) of the Horticulture Award to ensure that the piecework rate enables the average 
competent employee to earn at least 15% more per hour than the minimum hourly rate. 
As a practical matter, the employer would need to maintain records of hours worked 
and pay received by employees to demonstrate compliance with that obligation. 

2. Other modern awards provide for the payment of piecework rates but also provide for 
a guaranteed minimum payment by reference to the minimum hourly or weekly rates 
of pay and allowances including awards covering similar industries such as sugar 
silviculture and wool. This necessarily requires employers to maintain records of hours 
and time worked by employees being paid piecework rates, and conduct a comparison 
between the entitlements of each employee under alternative payment arrangements. 
The Commission, in making those awards, has not regarded the requirement to maintain 
such records as imposing an unreasonable burden. 

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].








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3. The Horticulture Award itself does not regard the imposition of a requirement to 
maintain records of an alternative payment arrangements as an unreasonable burden. 
Clause 17.2 requires that an annualised wage be no less than the amount the employee 
would have received under the Award for the work performed,581 that the employer 
must calculate the amount of remuneration that would have been payable under the 
Award each year and compare it with the annualised wage,582 and that the employer 
must keep a record of starting and finishing times and breaks for the purposes of making 
that calculation.583

[515] The UWU submits that the proposed variation will not adversely impact on business 
because:584

 the incentivisation that comes from the prospect of earning more than the minimum 
award rate through a piecework rate is retained;

 the disincentive in relation to workforce participation that results from the likelihood 
that the pieceworker is going to engage in physically and environmentally difficult 
work for less than the equivalent minimum award wage is removed; and

 the regulatory burden is eased, as a provision which requires at least the minimum 
award wage to be paid provides a simple mechanism to allow for compliance.

[516] The UWU concedes that the insertion of a provision ensuring that all pieceworkers are 
paid at least the award minimum would increase employment costs, but submits that this must 
be measured against an improvement in productivity, the easing of regulatory burden and the 
other factors which make up the modern awards objective and weigh in favour of the variation 
sought.585

[517] As to productivity, the UWU submits that: 

‘the employer parties submit that piecework rates incentivise workers, either because employees 
are fearful of earning less money or through the hope of earning more. But a productivity 
incentive based on motivating workers by fear they will earn less than the minimum rate if not 
"productive" is fundamentally inconsistent with the concept of a fair and relevant minimum 
safety net. And a productivity incentive based on motivating productivity through the possibility 
of earning more remains a feature of the piece rates model if varied in the manner proposed. The 
variation would not prevent such incentivisation from occurring.

Further … employees who know they are guaranteed at least the equivalent of the minimum 
aware hourly rate for the work performed are likely to be incentivised to be productive in order 
to retain the employment that will give them the ability to earn money at this rate. And the 
disincentive to be productive in circumstances where an employee has little hope of earning at 

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)].








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least the minimum rate for the work performed is removed. Cast in this way, the impact of the 
proposed variation on productivity is not neutral - it is positive.’586

[518] The AFPA submits that granting the Application would increase employment costs and 
submits 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.587

[519] Ai Group submits that this consideration weighs against making the proposed variation 
and that the AWU’s argument is unpersuasive:

‘A piecework rate set pursuant to cl. 15.2(b) has the potential for high performing employees to 
earn substantially over the equivalent time rate for their classification. The corollary to that effect 
is that low performing employees may earn under the equivalent time rate. Requiring 
unproductive employees to earn an amount which exceeds the value of their labour would result 
in a cost increase for employers. The quantum of this increase is as yet unknown. However, it 
should be regarded as axiomatic that a variation which would impose a floor in the minimum 
piecework would result in a cost increase for relevant employers in the horticulture industry.’588 
[Footnotes omitted]

[520] Ai Group rejects the UWU’s submission that the proposed variation would improve 
productivity:

‘Contrary to the UWU’s argument at paragraph [36](f)(i)(2) of its submission, the proposed 
variation would not improve productivity. Even if the Commission accepts the UWU’s argument 
that the amendments would remove a disincentive in relation to workforce participation and 
engagement, this has little relevance to productivity in the horticulture sector. As the Full Bench 
stated in the Penalty Rates Decision, the conventional economic meaning of productivity is the 
number of units of output per unit of input. The UWU’s argument should therefore be rejected. 

Moreover, as stated above, considering the limited incentive for employers to engage 
pieceworkers where the costs of engaging low performing employees would increase, the 
disemployment effect may be substantial.’589 [Footnotes omitted]

[521] Ai Group submits that the regulatory burden imposed by a requirement to record hours 
of work also weighs against making the proposed variations and submits that the Commission 
should reject the AWU’s argument that an employer engaging employees on piecework rates 
needs to maintain records of hours worked and pay received to demonstrate compliance with 
clause 15.2(b):

‘In order to comply with cl. 15.2(b), the employer would need to take the steps outlined in 
paragraphs [26] – [38] of Rangiah J’s decision in Fair Work Ombudsman v Hu (No 2) [2018] 
FCA 1034. As outlined above, this involves identifying of the characteristics of the hypothetical 

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].








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average competent employee and predicting the pick rate of such an employee. It does not 
involve continuous monitoring of the hours of each individual employee.’590 [Footnotes omitted]

[522] Ai Group also submits that the proposed variations will not ease regulatory burden, that 
‘making the proposed variation will not enable employers to simply remunerate pieceworkers 
according to the equivalent hourly rate of pay’:

‘Even if the proposed variations are made, employers who fail to apply cl. 15.2(b) correctly and 
set the piecework rate too low will still need to compensate relevant employees by calculating 
the difference between the rate they were paid and the applicable piecework rate rather than the 
equivalent hourly rate for the employees’ classification.’591

[523] The NFF submits that this consideration weighs against the Application because:592

 the additional of an hourly rate as an alternative to the 15% loading in the Horticulture 
Award will have a significant impact on productivity; some growers will not offer 
piece rates, others will selectively hire, others will employ technology to reduce 
labour costs;

 the proposed variation is ‘vastly less efficient’; keeping additional records and 
supervising employees will require more staff; and

 the inclusion of a ‘floor’ will not militate towards compliance.

[524] The insertion of a minimum wage floor and consequential time recording provisions in 
the piecework clause in the Horticulture Award is likely to have a negative impact on business, 
by increasing employment costs and regulatory burden for those businesses that engage 
pieceworkers. Such a variation is also likely to create an economic incentive to manage slow or 
unproductive pickers and to reduce the cohort of unproductive workers, thus increasing 
productivity. Conversely, the introduction of a minimum wage floor may demotivate some 
underperforming employees and reduce productivity, although such underperformance can be 
managed, for example by introducing a minimum required output (as suggested by Mr King593). 
Further, some employers may make greater use of automation and machinery to reduce labour 
costs and, as a consequence, increase productivity. On balance we think the proposed variation 
will increase productivity.

[525] Taken as a whole this consideration weighs against the insertion of a minimum wage 
floor and consequential time recording provisions, although not strongly. The likely increase in 
employment costs and regulatory burden is offset to some extent by the expected increase in 
productivity.

6.2.8 s.134(1)(g) the need to ensure a simple, easy to understand, stable and sustainable 
modern award system for Australia that avoids unnecessary overlap of modern 
awards

590 Ibid at [123].
591 Ibid at [126].
592 NFF submission, 11 June 2021 at [24].
593 Exhibit AFPA 2 at [60]








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[526] The AWU submits the proposed variations would provide a certain and easily calculated 
guaranteed minimum payment for pieceworkers which would assist in making the Horticulture 
Award comprehensible and easier to apply.594

[527] The UWU submits that the current clause is not simple, stable and sustainable and is not 
easy for people to understand.595

[528] Ai Group submits that this consideration is neutral and rejects the AWU’s proposition, 
submitting that any uncertainties in applying clause 15(2)(b) of the Horticulture Award are not 
ameliorated by imposing an additional ‘floor’ in the piecework rate.

[529] The NFF submits that this consideration weighs against the Application because:596

 the additional administrative burden is neither simple, nor easy to understand, and

 the addition of an hourly rate as an alternative to piece rates does not ensure or 
encourage compliance.

[530] Contrary to the NFF’s submission, we think the introduction of a minimum wage floor 
will increase compliance by providing an easily calculated minimum payment. The proposed 
variation is simple and easy to understand. In our view, this consideration weighs in favour of 
the insertion of a minimum wage floor, although not strongly.

6.2.9 s.134(1)(h) the likely impact of any exercise of modern award powers on 
employment growth, inflation and the sustainability, performance and 
competitiveness of the national economy.

[531] We note that the requirement to take into account the likely impact of any exercise of 
modern award powers on ‘the sustainability, performance and competitiveness of the national 
economy’ (emphasis added) focuses on the aggregate (as opposed to sectorial) impact of an 
exercise of modern award powers. 

[532] The AWU submits this is a neutral consideration; that there is no reason to believe that 
the proposed variation would have any identifiable impact on the national economy.597

[533] The UWU submits that the proposed variation would not adversely impact employment 
growth, inflation and the sustainability, performance and competitiveness of the national 
economy, because:598

 employees will have a greater incentive to work as they will be fairly remunerated;

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)].








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 providing employees with a fair payment will mean they have more money to spend 
in the Australian economy; and

 by ensuring all pieceworkers are paid at least the minimum hourly rate applicable, 
labour costs will be fair across the board, encouraging fair competition amongst 
employers in the horticulture sector.

[534] Ai Group submits that to the extent that the proposed amendments are inconsistent with 
ss.134(1)(d), (f) and (g), they will also have a negative impact on employment growth, inflation 
and the sustainability, performance and competitiveness of the national economy.

[535] The NFF submits that this consideration weighs against the Application because: 

 labour costs, access to labour and productivity will be negatively affected, and

 growers may turn to altered planting of crops, use of technology and selective hiring 
in response to the additional administrative burden arising out of the Application.

[536] As mentioned above, this consideration focusses attention on the impact of the exercise 
of modern award powers on the ‘national economy’, as opposed to any sectoral impact. There 
is no probative evidence before us as to the impact on the national economy of the proposed 
variation. We are not persuaded that the variation proposed will have a material impact on the 
national economy. This consideration is neutral.

[537] The modern awards objective is to ‘ensure that modern awards, together with the NES, 
provide a fair and relevant minimum safety net of terms and conditions’, taking into account 
the particular considerations identified in ss.134(1)(a)–(h). We have taken into account those 
considerations insofar as they are presently relevant and we are satisfied that the insertion of a 
minimum wage floor with consequential time recording provisions in the piecework clause is 
necessary to ensure that the Horticulture Award achieves the modern awards objective.

6.3 Minimum Wages Objective

[538] As mentioned in section 2 of this decision, the Application seeks to set modern award 
minimum wages for pieceworkers, which enlivens ss.157(2) and 284 of the Act. It is convenient 
to deal first with s.157(2). 

[539] Section 157(2) provides:

‘(2)  The FWC may make a determination varying modern award minimum wages if the FWC is 
satisfied that:

(a) the variation of modern award minimum wages is justified by work value 
reasons; and

(b) making the determination outside the system of annual wage reviews is necessary 
to achieve the modern awards objective.








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Note: As the FWC is varying modern award minimum wages, the minimum wages 
objective also applies (see section 284).’

[540] The Application plainly seeks to set the minimum wage applicable to a particular 
category of employees (pieceworkers). It follows that we must be satisfied that the variation 
proposed in the Application is justified by ‘work value reasons’ and that the variation is 
necessary to achieve the modern awards objective.

[541] Section 157(2A) provides:

‘(2A)  Work value reasons are reasons justifying the amount that employees should be paid for 
doing a particular kind of work, being reasons related to any of the following:

(a) the nature of the work;

(b) the level of skill or responsibility involved in doing the work;

(c) the conditions under which the work is done.’

[542] Ai Group (and others) submits that the AWU has failed to demonstrate how the variation  
proposed is justified for ‘work value reasons’ and that it would be unjust to impose a ‘floor’ on 
the rate set under clause 15.2(b) where the value to the employer of the work performed has not 
increased.599 The AFPA also submits that the Union parties ‘have not explained why the 
inevitable increase in remuneration for the substantial cohort of workers in the industry who 
are not competent can be justified by work value reasons.’600

[543] Section 157(2A) does not import a requirement that the work value considerations 
consist of identified changes in work value measured from a fixed datum point. The ‘work value 
reasons’ must relate to the nature of the work performed, the level of skill or responsibility 
involved or the conditions under which the work is done. 

[544] The Application seeks to insert a minimum rate for pieceworkers being the ‘rate payable 
for the employee’s classification and type of employment’ under the Horticulture Award. 
Relevantly, the minimum hourly rates in clause 15.1 have already been set for the same work 
as that undertaken by pieceworkers. 

[545] For example, a ‘Level 1 employee’ is one who:601

 undertakes induction training which may include information on the enterprise, 
conditions of employment, introduction to supervisors and fellow workers, training 
and career opportunities, plant layout, work and documentation procedures, work 
health and safety, equal employment opportunity and quality control/assurance; 

 performs routine duties essentially of a manual nature and to the level of their 
training; 

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.








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 exercises minimal judgment; 

 works under direct supervision; 

 is responsible for the quality of their own work; and

 is a new employee; or is an existing employee performing work within this grade who 
is undertaking training so as to enable advancement to Level 2. 

[546] Indicative duties of a Level 1 employee are:602 

 performing general labouring duties; 

 fruit or vegetable picking, thinning or pruning; 

 operating small towing tractor engaged in transfer of produce bins and other 
containers during harvest; 

 performing a range of housekeeping tasks in premises and grounds; 

 sorting, packing or grading of produce where this requires the exercise of only 
minimal judgment; 

 performing basic recording functions related to work performed at this level; 

 providing assistance within the scope of this level to other employees as required; 
and

 undertaking structured training so as to enable advancement to Level 2. [Emphasis 
added]

[547] Pieceworkers undertake the same work as those engaged on minimum hourly rates and 
perform that work under the same conditions; it is only the method of remuneration that differs. 
In these circumstances we are satisfied that the variation proposed, being the extension of the 
minimum hourly rate of pay to pieceworkers, is justified by ‘work value reasons’ as required 
by s.157(2)(a). 

[548] The decision of a Full Bench of the AIRC in Re Federal Meat Industry [Processing] 
Award 1996 supports our conclusion in respect of s.157(2)(a). 603 In that matter, the AIRC was 
reviewing the Federal Meat Industry (Processing) Award 1996, pursuant to Item 51 of Schedule 
5 of the Workplace Rations and Other Legislation Amendment Act 1996. In the course of that 
review, the AIRC decided to replace the existing ‘tally’ provision in the award with ‘a flexible 

602 Ibid, sch.A cl.A.1.2.
603 [2000] AIRC 276 at [7].








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and simplified safety net prescription permitting payment systems based on incentives’604 and 
in  determining the nature of the proposed incentive payment system the Full Bench said: 

‘Under the new provision daily hire employees engaged on incentive payment systems will be 
entitled to minimum rates based on the appropriate timework rate plus a 20% incentive loading 
and a 10% daily hire loading. The AMIEU submitted to Commissioner Leary that employees on 
daily hire should be entitled to have the 10% daily hire loading calculated on the timework 
classification rate plus the 20% incentive loading. This was put forward on the basis that the 
20% incentive loading should form part of the base rate for all purposes of the award. The NMA 
opposed this and pointed out that it would result in the daily hire loading being increased from 
10% to 12% of the timework classification rate. It is not our intention to establish a separate 
minimum rate of pay for employees engaged on incentive systems. There should only be one 
minimum rate for each classification. The work value of the classification does not alter because 
of the nature of the engagement of the employee. The value of the work is the same whether it 
is performed by an employee on timework, a casual employee, an employee engaged on daily 
hire or an employee working on an incentive system. The approach adopted in our decision is 
one which involves a loading referable to the nature of the engagement. The AMIEU’s proposal 
is inconsistent with that approach and we do not intend to adopt it.’605 [Emphasis added]

[549] Further, for the reasons given in section 6.2, we are also satisfied that making such a 
variation determination outside the system of annual wage review is necessary to achieve the 
modern awards objective, as required by s.157(2)(b). It follows that the requirements of 
s.157(2) have been met. We now turn to the terms of the minimum wages objective.

[550] Section 284(2) provides that the minimum wages objective applies to the Commission’s 
functions or powers under Part 2-3 of the Act so far as they relate to, relevantly, setting or 
varying modern award minimum wages. The minimum wages objective is set out in s.284(1): 

‘(1)  The FWC must establish and maintain a safety net of fair minimum wages, taking into 
account:

(a) the performance and competitiveness of the national economy, including productivity, 
business competitiveness and viability, inflation and employment growth; and

(b) promoting social inclusion through increased workforce participation; and

(c) relative living standards and the needs of the low paid; and

(d) the principle of equal remuneration for work of equal or comparable value; and

(e) providing a comprehensive range of fair minimum wages to junior employees, 
employees to whom training arrangements apply and employees with a disability.

This is the minimum wages objective.’

[551] There is a significant degree of overlap between the s.134 considerations and the matters 
set out in ss.284(1)(a) to (e). 

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)..






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[552] The AFPA submits that 3 of the matters in s.284(1) overlap with the modern awards 
objective factors, but that s.284(1)(a) prescribes one additional factor that is presently relevant. 
The consideration at s.284(1)(a) states: 

‘the performance and competitiveness of the national economy, including productivity, business 
competitiveness and viability, inflation and employment growth’

[553] Contrary to the AFPA’s submission, there is a significant overlap between the 
consideration in s.284(1)(a) and that in s.134(1)(h), which states: 

‘the likely impact of any exercise of modern award powers on employment growth, inflation and 
the sustainability, performance and competitiveness of the national economy.’

[554] The extent of the overlap between the ss.134 and 284 considerations has been the subject 
of comment by the Expert Panel in a number of AWR decisions. In the 2014–15 AWR decision 
the Expert Panel observed: 

‘there is a degree of inconsistency in the expression of the economic considerations that the Panel 
is required to take into account under either s.284 or s.134. As ACCI pointed out in its 
submissions:

 employment growth and inflation are mentioned as separate considerations under the modern 
awards objective (s.134(1)(h)), but in the minimum wages objectives these factors appear to 
be subsidiary to the performance and competitiveness of the national economy (s.284(1)(a)); 
and

 the modern awards objective requires the Panel to take into account “the likely impact of any 
exercise of modern award powers on...the sustainability, performance and competitiveness 
of the national economy” (s.134(1)(h)), whereas the “sustainability” of the national economy 
is not mentioned in the minimum wages objective.

Despite these textual differences, we accept the thrust of ACCI’s submission, that the underlying 
intention of the various economic considerations referred to in ss.284 and 134 is that the Panel 
take into account the effect of its decisions on national economic prosperity and in so doing give 
particular emphasis to the economic indicators specifically mentioned in the relevant statutory 
provisions. Such an approach is supported by the object of the Act.’606 [Footnotes omitted]

[555] Further, as the Expert Panel observed in the 2018-19 AWR decision: 

‘the underlying intention of the various economic considerations referred to in ss 134 and 284 is 
that the Panel takes into account the effect of its decisions on national economic prosperity and 
in so doing gives particular emphasis to the economic indicators specifically mentioned in the 
relevant statutory provisions.’607 

As to the minimum wages objective, the only additional consideration identified in the 
submissions is the requirement to take into account “the performance and competitiveness of 
the national economy, including business competitiveness and viability, inflation and economic 

606 Annual Wage Review 2014-15 [2015] FWCFB 3500 at [88]–[89]. 
607 Annual Wage Review 2018-19 [2019] FWCFB 3500 at [12]. 








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growth.” That consideration appears to overlap, at least significantly, with the matter referred 
to in s 134(1)(h).’608

[556] In any event, no probative evidence has been advanced to suggest, much less 
demonstrate, that the introduction of a minimum wage floor in clause 15.2 would have any 
appreciable impact on the performance and competitiveness of the national economy.

[557] We are satisfied that the insertion of a minimum wage floor in clause 15.2 is necessary 
to ensure that the Horticulture Award achieves the minimum wages objective. As already 
mentioned, the requirements of s.157(2) have also been met. Accordingly, we have decided to 
vary the Horticulture Award to insert a minimum wage floor with consequential time recording 
provisions in clause 15.2.

[558] But that is not the end of the matter. As the AFPA submits, if the Horticulture Award is 
only varied to insert a minimum wage floor, with consequential time recording provisions as 
proposed by the AWU, then significant issues remain:

‘To the extent that the current drafting of clause 15.2 of the Award creates difficulties in correctly 
setting the piece rate for the average competent employee, or enforcing the Uplift term, these 
difficulties will remain unaddressed.’609

[559] We address these issues in the next section.

6.4 New Piecework Clause – Provisional View

[560] As mentioned in section 4.6 of this decision, there is widespread non-compliance with 
clause 15.2; in particular:

 many growers do not determine piece rates in accordance with the method prescribed 
by clause 15.2, as interpreted by the Federal Court in Hu (No.2) and the Hu Appeal;

 piece rates are set unilaterally by the grower and presented to the employee on a ‘take 
or leave it’ basis, rather than being the product of any genuine negotiation between 
the employer and employee;

 piece rates are adjusted unilaterally as required and are not the subject of negotiation; 
and

 pieceworkers are usually not provided with a written piecework agreement.

[561] Subject to according interested parties procedural fairness, we are not required to make 
a decision in the terms sought in an application. A draft clause addressing some of the 
deficiencies in the current clause has been prepared for the consideration of the parties. The 
draft clause is intended to make the pieceworker term simpler and easier to understand; to 
reduce regulatory burden, and to promote compliance. In particular, the draft clause removes 
the requirement for piecework arrangements to be the product of genuine negotiation and 

608 AWU submission in reply, 2 July 2021 at [7]–[8].
609 AFPA Closing Submissions on the evidence at [33]








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agreement, and removes the requirement for piecework rates to be determined in accordance 
with the method presently prescribed by clause 15.2, as interpreted by the Federal Court in Hu 
(No.2) and the Hu Appeal.

[562] The proposed draft clause is set out below and is followed by an explanation of its terms:

15.2 Piecework rates

(a) In clause 15.2:

(i) hourly rate for the pieceworker means the minimum hourly 
rate for the pieceworker’s classification level plus the 25% casual 
loading under clause 11.3 for a casual pieceworker;

(ii) pieceworker means an employee being paid a piece rate; 

(iii) pieceworker competent at the piecework task means a 
pieceworker who has at least 2 weeks’ experience performing the 
task (for example, picking apples, picking strawberries or 
pruning grape vines);

(b) The following clauses of this award do not apply to a pieceworker:

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

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

(iii) Clause 21—Overtime.

(c) An employer may pay a full-time, part-time or casual employee a piece 
rate for performing a task.

(d) The employer must fix the piece rate at a level which enables a 
pieceworker competent at the piecework task to earn at least 15% more per 
hour than the hourly rate for the pieceworker.

NOTE: A pieceworker is paid 200% of the piece rate for work on a public 
holiday (see clause 27.3).

(e) If a pieceworker does any work in addition to the task for which they are 
being paid a piece rate, the pieceworker must be paid for that additional 
work at the hourly rate for the pieceworker.

(f) Despite any other provision of clause 15.2 a pieceworker must be paid no 
less than the amount they would have received if paid for each hour 
worked at the hourly rate for the pieceworker. 








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(g) Pieceworkers are paid allowances under clause 18 (other than the meal 
allowance) in addition to the rates payable under clauses 15.2(d), (e) and 
(f).

(h) Before a pieceworker begins a piecework task for an employer, the 
employer must give the pieceworker a written record signed by the 
employer (a piecework record) that must:

(i) state the date and time the piecework is to commence;

(ii) describe the task for which the piece rate will be paid;

(iii) state the amount of the piece rate;

(iv) include the following statement:

‘Under the Horticulture Award 2020 a pieceworker must be paid no 
less than the amount they would have received if paid for each hour 
worked at their hourly rate under the Award (including the 25% 
casual loading for a casual pieceworker).’

and

(v) state the hourly rate for the pieceworker.

NOTE: An example of the type of record required by clause 15.2(h) is at 
Schedule I—Piecework Record.  There is no requirement to use the form of 
record set out in Schedule I—Piecework Record.

(i) If an employer proposes to change the piece rate or piecework task of a 
pieceworker the employer must first give the pieceworker a further 
piecework record including the new rate or task.

(j) The employer must keep the following as employee records:

(i) a copy of each piecework record given to the pieceworker; and

(ii) a record of all hours worked by the pieceworker and the 
applicable piece rate at the time those hours were worked.

(k) For the purposes of the NES the base rate of pay and full rate of pay of a 
pieceworker are the same and are worked out as follows: 

(i) By dividing the total amount earned by the pieceworker during 
the relevant period by the total hours worked by the pieceworker 
during the relevant period.








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(ii) If the pieceworker was continuously employed by the employer 
for a period of 12 months or more immediately before the rate of 
pay is to be worked out—the relevant period is the 12 months 
before the rate is to be worked out.  If the pieceworker was 
continuously employed by the employer for a period of less than 
12 months immediately before the rate of pay is to be worked 
out—the relevant period is that period.

[563] A proposed Schedule I – Piecework Record is set out at Attachment E.

[564] Draft clause 15.2(a) contains definitions, which include:

 The ‘hourly rate for a pieceworker’ is the minimum hourly rate under the Award for 
the pieceworker’s classification, plus the 25% casual loading prescribed in clause 
11.3 for a pieceworker engaged as a casual employee.

It is intended that this definition accord with the hourly rate used in the existing award 
clause 15.2(b) to set the piece rate (see existing clauses 15.2(b) and 15.2(c)).

This definition is used in prescribing the minimum level at which the piece rate must 
be set (draft clause 15.2(d)), the hourly rate to be paid to a pieceworker when 
performing non-piecework tasks (draft clause 15.2(e)) and the hourly rate that 
underpins the minimum payment to be made to a pieceworker (draft clause 15.2(f)).

 A pieceworker is ‘competent at the piecework task’ if the pieceworker has at least 2 
weeks’ experience performing the task.  Different piecework tasks might comprise, 
for example, picking apples, picking strawberries or pruning grape vines.  While 
picking different types of fruit may constitute different piecework tasks for this 
purpose, picking different varieties of the same type of fruit would not.

This definition is used in prescribing the minimum level at which the piece rate must 
be set under draft clause 15.2(d).

[565] Draft clause 15.2(b) identifies the clauses of the Award that do not apply to 
pieceworkers.  It is to the same effect as existing award clause 15.2(e).

[566] Draft clause 15.2(c) provides for an employer to pay a full-time, part-time or casual 
employee a piece rate for performing a task.  The term ‘piece rate’ (rather than ‘piecework rate’ 
as presently used in the Award) is used for consistency with the Act. It is proposed that 
‘Piecework rate’ in award clause 27.3 also be changed to ‘piece rate’ for consistency.

[567] The draft clause does not include provision equivalent to existing award clause 15.2(d) 
(to the effect that a piece rate is paid instead of minimum hourly rates under the Award), as this 
appears unnecessary and may cause confusion.

[568] Unlike existing award clause 15.2(a), draft clause 15.2(c) does not require the employer 
to conclude an agreement with an employee to pay a ‘piece rate’.  Similarly, draft clause 15.2(d) 
provides for the employer to fix the amount of the piece rate, rather than requiring the employer 








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to agree to the piece rate with the employee (as under existing award clause 15.2(b)).  This 
reflects the reality that payment of a piece rate and the setting of the piece rate is often not the 
product of agreement with an existing employee.

[569] The fixing of the piece rate under draft clause 15.2(d) is simpler than under existing 
award clause 15.2(b).  Existing clause 15.2(b) requires the piece rate to be fixed so as to enable 
the ‘average competent employee’ to earn at least 15% more than the applicable minimum 
hourly rate under the Horticulture Award.  As explained in Fair Work Ombudsman v Hu (No 
2)610 this requires the piece rate to be set by reference to the performance of the hypothetical 
average competent employee in the workforce available or potentially available to the 
employer.611  In contrast, draft clause 15.2(d) requires the employer to fix the piece rate at a 
level that enables a ‘pieceworker competent at the piecework task’ concerned to earn at least 
15% more than the applicable hourly rate.

[570] As mentioned above, for the purpose of setting the piece rate for a task under draft clause 
15.2(d), a ‘pieceworker is competent at the piecework task’ if they have at least 2 weeks’ 
experience performing the task.  

[571] A note under draft clause 15.2(d) draws attention to a pieceworker’s entitlement under 
award clause 27.3 to twice the usual piece rate for work on a public holiday.

[572] Existing award clause 15.2(b) provides that the piece rate is to be paid for ‘all work 
performed in accordance with the piecework agreement’.  Under draft clause 15.2(d), the piece 
rate is paid for performance of a particular piecework task.  That task must be described in the 
‘piecework record’ the employer is required to make under draft clause 15.2(h).

[573] Draft clause 15.2(e) has no counterpart in existing award clause 15.2.  It provides that 
if a pieceworker does any work in addition to a task for which they are being paid a piece rate 
then they must be paid for that additional work at the applicable hourly rate.  Such additional 
work might include, for example, cleaning up a work area at the end of a day’s work.

[574] Draft clause 15.2(f) also has no counterpart in existing award clause 15.2.  It requires 
that a pieceworker be paid ‘no less than the amount they would have received if paid for each 
hour worked at the applicable hourly rate’.  If a pieceworker would receive less in total in piece 
rates for any hour’s work than the applicable hourly rate, then draft clause 15.2(f) requires that 
the pieceworker be paid the amount of the applicable hourly rate for that hour’s work.  The 
employer’s record-keeping obligations under draft clause 15.2(j) include keeping a record of 
all hours worked by the pieceworker.  In effect, draft clause 15.2(f) is the guarantee of minimum 
earnings that is disavowed by existing award clause 15.2(i). Draft clauses 15.2(f) and (j) give 
effect to our decision to vary the Horticulture Award to insert a minimum wage floor with 
consequential time recording provisions.

[575] As mentioned above, draft clause 15.2(g) is intended to make clear that the prescription 
of rates in draft clauses 15.2(d), 15.2(e) and 15.2(f) does not exclude additional entitlements to 
allowances.  

610 [2018] FCA 1034.
611 Ibid at [30]–[34].








[2021] FWCFB 5554

159

[576] Draft clause 15.2(h) requires the employer to make a ‘piecework record’.  Similarly to 
a ‘piecework agreement’ under existing award clauses 15.2(g) and 15.2(h), a piecework record 
must be in writing and signed by the employer, a copy must be given to the pieceworker before 
they start the piecework task, and a copy must be kept by the employer as an employee record 
(draft clauses 15.2(h) and 15.2(j)).

[577] Draft clause 15.2(h) requires the piecework record to state: the date and time the 
piecework is to commence; the task for which the piece rate will be paid, and the amount of the 
piece rate.  The piecework record includes the time the piecework is to commence in case the 
employer proposes to change the piece rate after the pieceworker has commenced work.  

[578] Draft clause 15.2(i) requires that if the employer proposes to change the piece rate for a 
task, or change the piecework task, then the employer must first give the pieceworker a further 
piecework record including the new rate or task.  This would correspond to making a new 
piecework agreement, or a written variation of a piecework agreement, for the purposes of 
existing award clause 15.2.

[579] As a measure to promote compliance, draft clause 15.2(h) also requires that the 
piecework record include a statement in prescribed terms as to the pieceworker’s minimum 
payment entitlement pursuant to draft clause 15.2(f) and the pieceworker’s hourly rate for the 
purposes of that minimum payment entitlement.  The prescribed statement is:

‘Under the Horticulture Award 2020 a pieceworker must be paid no less than the amount they 
would have received if paid for each hour worked at their hourly rate under the Award (including 
the 25% casual loading for a casual pieceworker).’

[580] A note under draft clause 15.2(h) draws attention to the example piecework record that 
would be set out in a new Schedule I to the Award.  As with the example agreements in 
Schedules E–G612, an employer would not be obliged use the form of record in the new 
Schedule.

[581] Draft clause 15.2(j) requires the employer to keep as employee records a copy of each 
piecework record given to the pieceworker, and a record of all hours worked by the pieceworker 
and the applicable piece rate at the time those hours were worked.  The requirement to keep a 
record of hours worked has no counterpart in existing award clause 15.2.  The further new 
requirement to record the applicable piece rate at the time the hours were worked, is intended 
to promote compliance and compliance verification in circumstances where a piece rate may 
change during a working day or otherwise in the course of a pieceworker’s employment.

[582] Draft clause 15.2(k) provides for determination of a pieceworker’s ‘base rate of pay’ 
and ‘full rate of pay’ for the purposes of the NES, as required by Act s.148. The wording of the 
draft clause is based on Fair Work Regulations 2009 regulation 1.09, which provides for 
determination of the base rate of pay for an award/agreement free pieceworker.  The ‘full rate 
of pay’ under draft clauses 15.2(k)(ii) and (iii) accords with the ‘base rate of pay’ under 
regulation 1.09.

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








[2021] FWCFB 5554

160

[583] It is our provisional view that it is necessary to vary the Horticulture Award in the terms 
set out above. A draft variation determination is set out at Attachment D. We will provide the 
parties with an opportunity to comment on the proposed variation and our provisional view.








[2021] FWCFB 5554

161

7. CONCLUSION AND NEXT STEPS

[584] We are satisfied that the insertion of a minimum wage floor in clause 15.2 is ‘justified 
by work value reasons’ and is necessary to achieve the modern awards objective. Accordingly, 
we have decided to vary the Horticulture Award to insert a minimum wage floor with 
consequential time recording provisions in clause 15.2.

[585] Further, as mentioned above, it is our provisional view that it is necessary to vary the 
Horticulture Award in the terms set out at Attachment D.

[586] We make the following directions to provide interested parties with an opportunity to 
comment on the proposed draft variation determination and our provisional view:

1. Submissions in response to the proposed draft variation determination and our 
provisional view should be filed by no later than 4.00pm on Friday 26 
November 2021.

2. Submissions in reply are to be filed by no later than 4.00pm on Friday 10 
December 2021.

3. Any request for an oral hearing is to be made by no later than 4.00pm on 
Monday 13 December 2021.  Absent a specific request for an oral hearing, the 
matter will be determined on the papers. If a hearing is required, it will be held 
at 9:30am on Thursday 16 December 2021.

4. If no submissions are filed opposing our provisional view, we will issue a 
variation determination in the same terms as the draft determination at 
Attachment D. 

5. All submissions to be sent to amod@fwc.gov.au.

[587] The submissions to be filed in accordance with the above directions are not an 
opportunity to seek to reagitate a matter which has been determined; in particular, we have 
decided to vary the piecework clause in the Horticulture Award to insert a minimum wage floor, 
with consequent time recording obligations, and do not seek further submissions in respect of 
these issues. Rather, it is an opportunity to comment on the balance of the draft determination 
and our provisional view in respect of it.

PRESIDENT

Appearances:
M Gibian SC for the Australian Workers’ Union with T Howell and S Crawford.
K Burke for the United Workers Union with B Redford, L Ablett and G Robertson.






mailto:amod@fwc.gov.au


[2021] FWCFB 5554

162

R Dalton SC for the Australian Fresh Produce Alliance with D Ternovski and L Crossman.
T Donaghey for the National Farmers Federation with B Rogers.
A Bretherton for 88 Days and Counting with C Stenseth and A Sabaratnam.

Hearing details: 
2021.
Melbourne, Sydney (via video):
July 13, 15, 16 and 20.

Appearances:
M Gibian SC for the Australian Workers’ Union with T Howell and S Crawford.
K Burke for the United Workers Union with B Redford, L Ablett and G Robertson.
R Dalton SC for the Australian Fresh Produce Alliance with D Ternovski and L Crossman.
T Donaghey for the National Farmers Federation with B Rogers.
A Bretherton for 88 Days and Counting with C Stenseth and A Sabaratnam.
H Harrington for Ai Group.

Hearing details: 
2021.
Melbourne, Sydney (via video):
July 30.

Printed by authority of the Commonwealth Government Printer

PR733596








[2021] FWCFB 5554

163

ATTACHMENT A – LIST OF EXHIBITS

AWU Exhibits
 

EXHIBIT 
NO.

DATE 
TENDERED

TENDERED 
BY

DESCRIPTION COURT 
BOOK 
REF.

TRANSCRIPT 
REFERENCE

AWU 1 13 July 
2021

AWU Witness Statement of Ms Chee 
Sing Ee

CB7 PN150

AWU 2 13 July 
2021

AWU Witness Statement of Mr 
Xueliang Wang

CB12 PN185

AWU 3 13 July 
2021

AWU Witness Statement of Ms Hsu CB10 PN210

AWU4 13 July 
2021

AWU Witness Statement of Anthony 
Beven 

CB17 PN232

AWU  5 13 July 
2021

AWU Reply Witness Statement of 
Anthony Beven

CB14 PN235

AWU 6 13 July 
2021

AWU Witness Statement of Darren 
Cameron

CB40 PN275

AWU 7 13 July 
2021

AWU Witness Statement of Philip 
Gourlay 

CB43 PN305

AWU 8 13 July 
2021

AWU Witness Statement of Ronald 
Cowdrey 

CB49 PN338

AWU 9 13 July 
2021

AWU Witness Statement of Shane 
Roulstone 

CB53 PN368

AWU 10 13 July 
2021

AWU Witness Statement of Steven 
Carter

CB124 PN399

AWU 11 13 July 
2021

AWU Reply Witness Statement of 
Steven Carter

CB121 PN407

AWU 12 13 July 
2021

AWU Witness Statement of Suliman Ali CB167 PN439

AWU 13 13 July 
2021

AWU Wage Theft: The Shadow 
Market: Part Two: The 
Horticultural Industry

CB216 PN577

AWU 14 13 July 
2021

AWU No Worker Left Behind: Support 
equal access to welfare for 
temporary migrants: Survey 
Results

CB241 PN585








[2021] FWCFB 5554

164

AWU 15 13 July 
2021

AWU Working for $9 a day: Wage 
Theft and Human Rights Abuses 
on Australian Farms

CB290 PN588

AWU 16 15 July 
2021

AWU Report of Dr Elsa Underhill CB475 PN1112

AWU 17 15 July 
2021

AWU Reply Report of Dr Elsa 
Underhill

CB321 PN1117

AWU 18 15 July 
2021

AWU Email from Alison Cooper to 
Tony Kelly and others dated 17 
March 2021 (being page 1 of the 
bundle of documents produced by 
Anthony Kelly in response to an 
Order to Produce)

- PN1787

AWU 19 15 July 
2021

AWU NFF Media Release, ‘Growers 
and farm workers asked to help 
protect piece rates’

- PN1875

AWU 20 15 July 
2021

AWU Survey Monkey: List of questions - PN1967

AWU 21 15 July 
2021

AWU Bundle of documents submitted 
by Brent McClintock in response 
to an Order to Produce

- PN2135

AWU 22 15 July 
2021

AWU Bundle of documents submitted 
by Catherine Silverstein in 
response to an Order to Produce

- PN2278

AWU 23 15 July 
2021

AWU Payslips from Bulmer Farms Pty 
Ltd (being pages 1 – 5 of the 
bundle of documents produced by 
Glenn Trewin in response to an 
Order to Produce)

- PN2413

AWU 24 16 July 
2021

AWU Bundle of documents submitted 
by Gaetano Gaeta in response to 
an Order to Produce

- PN2616

AWU 25 16 July 
2021

AWU Bundle of documents submitted 
by Han Shiong Siah in response 
to an Order to Produce

- PN2727

AWU 26 16 July 
2021

AWU Pages 1-7 of bundle of documents 
submitted by Matthew Benham in 
response to an Order to Produce

- PN2933








[2021] FWCFB 5554

165

AWU 27 16 July 
2021

AWU 3 pages of bundle of documents 
submitted by Richard Eckersley 
in response to Order to Produce

- PN3138

AWU 28 16 July 
2021

AWU Bundle of documents submitted 
by Nicholas King in response to 
an Order to Produce

- PN3616

AWU 29 20 July 
2021

AWU Dr Underhill document, 
‘Distribution of Average Hourly 
Earnings, Horticulture Workers’

- PN3641

UWU Exhibits
 

EXHIBIT 
NO.

DATE 
TENDERED

TENDERED 
BY

DESCRIPTION COURT 
BOOK REF.

TRANSCRIPT 
REFERENCE

UWU 1 13 July 
2021

UWU Witness Statement of George 
Robertson

CB2327 PN473

UWU 2 13 July 
2021

UWU Witness Statement of Rodney 
McDonald

CB2669 PN514

UWU 3 13 July 
2021

UWU Reply Witness Statement of 
Rodney McDonald

CB2666 PN520

UWU 4 13 July 
2021

UWU Witness Statement of Lachlan 
Wakefield

CB2410 PN551

UWU 5 13 July 
2021

UWU Witness Statement of Nicholas 
Karhu

CB2659 PN597

UWU 6 13 July 
2021

UWU Witness Statement of Witness 1 
attaching email from Lyndal 
Ablett dated 13 July 2021 setting 
out instructions from Witness 1

CB2647613 PN626

UWU 7 13 July 
2021

UWU Witness Statement of Dr Joanna 
Howe 

CB2449 PN642

UWU 8 13 July 
2021

UWU Reply Witness Statement of Dr 
Joanna Howe with correction

CB2413 PN653

UWU 9 26 July 
2021

UWU Witness Statement of Lyndal 
Catherine Ablett

- -

AFPA Exhibits

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








[2021] FWCFB 5554

166

 
EXHIBIT 
NO.

DATE 
TENDERED

TENDERED 
BY

DESCRIPTION COURT 
BOOK REF.

TRANSCRIPT 
REFERENCE

AFPA 1 15 July 
2021

AFPA Bundle of material used in 
cross-examination of Dr 
Howe

- PN3623

AFPA 2 16 July 
2021

AFPA Witness Statement of 
Nicholas King

CB3102 PN3166

AFPA 3 16 July 
2021

AFPA Second Witness Statement of 
Nicholas King

- PN3208

AFPA 4 15 July 
2021

AFPA Bundle of material used in 
cross-examination of Dr 
Underhill614

- PN3625

AFPA 5 20 July 
2021

AFPA Witness Statement of 
Elizabeth Tan

- PN3677

AFPA 6 20 July 
2021

AFPA Expert Report of Greg 
Houston

CB3118 PN3693

AFPA 7 20 July 
2021

AFPA Expert Report in Reply of 
Greg Houston

PN3700

NFF Exhibits
 

EXHIBIT 
NO.

DATE 
TENDERED

TENDERED 
BY

DESCRIPTION COURT 
BOOK 
REF.

TRANSCRIPT 
REFERENCE

NFF 1 15 July 
2021

NFF Witness Statement of Anne Reardon CB2773 PN1608

NFF 2 15 July 
2021

NFF Witness Statement of Anthony 
Kelly

CB2779 PN1692

NFF 3 15 July 
2021

NFF Witness Statement of Ben Rogers 
with correction 

CB2787 PN1808

NFF 4 15 July 
2021

NFF Witness Statement of Brent 
McClintock with corrections

CB2956 PN2005

NFF 5 15 July 
2021 

NFF Witness Statement of Catherine 
Silverstein

CB2961 PN2147

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).








[2021] FWCFB 5554

167

NFF 6 15 July 
2021

NFF Witness Statement of Glenn Trewin CB2966 PN2290

NFF 7 16 July 
2021

NFF Witness Statement of Gaetano 
Gaeta

CB2970 PN2501

NNF 8 16 July 
2021

NFF Witness Statement of Han Shiong 
Siah615

CB2978 PN2630

NNF 9 16 July 
2021

NFF Witness Statement of Jonathan 
Moss

CB2996 PN2740

NNF 10 16 July 
2021

NFF Witness Statement of Leleiga Fetui CB3018 PN2778

NNF 11 16 July 
2021

NFF Witness Statement of Reginald John 
Brown

CB3049 PN2781

NNF 12 16 July 
2021

NFF Witness Statement of Matthew 
Benham with corrections

CB3022 PN2812

NFF 13 16 July 
2021

NFF Witness Statement of Michelle 
Distill with corrections

CB3026 PN2954

NFF 14 16 July 
2021

NFF Witness Statement of Richard 
Eckersley

CB3054 PN3051

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.’








[2021] FWCFB 5554

168

ATTACHMENT B – LIST OF WITNESSES
 

# DATE PARTY WITNESS TRANSCRIPT REFERENCE

1. 13 July 2021 AWU Ms Chee Sing Ee XN: PN132-150

XXN: PN151-168

RXN: PN169-176

2. 13 July 2021 AWU Mr Xueliang Wang XN: PN183-185

XXN: PN186-193

3. 13 July 2021 AWU Ms Hsu XN: PN203-210

XXN: PN211-222

4. 13 July 2021 AWU Mr Anthony Beven XN: PN228-236

XXN: PN238-263

5. 13 July 2021 AWU Mr Darren Cameron XN: PN270-274

XXN: PN276-288

RXN: PN290-293

6. 13 July 2021 AWU Mr Philip Gourlay XN: PN300-304

XXN: PN306-321

RXN: PN324-326

7. 13 July 2021 AWU Mr Ronald Cowdrey XN: PN333-337

XXN: PN339-353

RXN: PN355-357

8. 13 July 2021 AWU Mr Shane Roulstone XN: PN363-367

XXN: PN369-380

RXN: PN383-388

9. 13 July 2021 AWU Mr Steven Carter XN: PN393-406

XXN: PN408-421

RXN: PN423-424

10. 13 July 2021 AWU Mr Suliman Ali XN: PN435-439








[2021] FWCFB 5554

169

XXN: PN440-447

11. 13 July 2021 UWU Mr George Robertson XN: PN466-474

XXN: PN476-488

Question from the Bench: 
PN491-496

12. 13 July 2021 UWU Mr Rodney McDonald XN: PN504-521

XXN: PN523-531

13. 13 July 2021 UWU Mr Lachlan Wakefield XN: PN543-550

XXN: PN552-565

14. 13 July 2021 UWU Dr Joanna Howe XN: PN633-653

XXN: PN657-990

RXN: PN1002-1011

15. 15 July 2021 AWU Dr Elsa Underhill XN: PN1103-1129

XXN: PN1130-1503

RN: PN1507-1542

16. 15 July 2021 NFF Ms Anne Reardon XN: PN1601-1610

XXN: PN1611-1672

RXN: PN1673-1679

17. 15 July 2021 NFF Mr Anthony Kelly XN: PN1684-1693

XXN: PN1695-1779

18. 15 July 2021 NFF Mr Ben Rogers XN: PN1796-1809

XXN: PN1818-1966

19. 15 July 2021 NFF Mr Brent McClintock XN: PN1977-2006

XXN: PN2007-2120

20. 15 July 2021 NFF Ms Catherine Silverstein XN: PN2139-2148

XXN: PN2150-2264

RXN: PN2269-2272








[2021] FWCFB 5554

170

21. 15 July 2021 NFF Ms Glenn Trewin XN: PN2283-2291

XXN: PN2292-2405

22. 16 July 2021 NFF Mr Gaetano Gaeta XN: PN2491-2502

XXN: PN2503-2592

23. 16 July 2021 NFF Mr Han Shiong Siah XN: PN2620-2644

XXN: PN2645-2717

24. 16 July 2021 NFF Mr Jonathan Moss XN: PN2731-2741

XXN: PN2743-2770

25. 16 July 2021 NFF Mr Matthew Benham XN: PN2788-2811

XXN: PN2813-2923

26. 16 July 2021 NFF Ms Michelle Distill XN: PN2938-2955

XXN: PN2957-3034

27. 16 July 2021 NFF Mr Richard Eckersley XN: PN3043-3052

XXN: PN3054-3129

28. 16 July 2021 AFPA Mr Nicholas King XN: PN3158-3172

XXN: PN3122-3543 (AWU)

XXN: PN3548-3581 (88 Days)

RXN: PN3584-3613

29. 20 July 2021 AFPA Mr Greg Houston XN: PN3684-3701

XXN: PN3704-4042 (AWU)

XXN: PN4051-4116 (UWU)

RXN: PN4119-4131








[2021] FWCFB 5554

171

ATTACHMENT C – LIST OF PIECE RATE CASES
 
1. Australian Workers' Union v Hans Irvine & Ors (1920) 14 CAR 204

2. AWU v The Pastoralists Federal Council of Australia (1922) 16 CAR 375

3. Australian Saddlery, Leather, Sail, Canvas, Tannery, Leather Dressing, and Allied Workers 
Trades Employees Federation and Davis Gelatine (Australia) Limited (1926) 23 CAR 58

4. Graziers Association of New South Wales v Australian Workers’ Union (1927) 25 CAR 626

5. Federated Felt Hatting Employees Union of Australasia v United Felt Hats Pty Ltd (1928) 27 
CAR 52  

6. Amalgamated Engineering Union v Metal Trades Employers Association (1930) 28 CAR 923

7. AWU v Young and District Producers Co-Operative Society (1939) 41 CAR 285

8. AWU v The Angaston Fruit-growers Co-Operative Society Ltd (1945) 55 CAR 704

9. Variation – Food Preservers Award [1958] 91 CAR 3

10. AWU v Abbott (Fruit Growing Industry Award, 1965) (1965) 109 CAR 679

11. Fruit Growing Industry (Consolidated) Award 1976 (1977) 186 CAR 801

12. Re Horticulture Award 2010 (2009) 193 IR 163








[2021] FWCFB 5554

172

ATTACHMENT D - DRAFT DETERMINATION

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

Australian Workers’ Union
(AM2020/104)

HORTICULTURE AWARD 2020
[MA000119]

Agricultural industry

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT CATANZARITI
COMMISSIONER RIORDAN PLACE, XX MONTH 2021

Horticulture Award 2020 – Pieceworker rates – minimum hourly rate.

A. Further to the decision [[2021] FWCFB XXXX] issued by the Fair Work Commission 
on XX MONTH 2021, the above award is varied as follows:

1. By deleting clause 15.2 and inserting the following:

15.2 Pieceworker rates

(a) In clause 15.2:

(i) hourly rate for the pieceworker means the minimum hourly rate for 
the pieceworker’s classification level plus the 25% casual loading under 
clause 11.3 for a casual pieceworker;

(ii) pieceworker means an employee being paid a piece rate; and

(iii) pieceworker competent at the piecework task means a pieceworker 
who has at least 2 weeks’ experience performing the task (for example, 
picking apples, picking strawberries or pruning grape vines);

MA000119  PRXXXXXX

DRAFT DETERMINATION


AUSTRALIA FairWork Commission




 



[2021] FWCFB 5554

173

(b) The following clauses of this award do not apply to a pieceworker:

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

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

(iii) Clause 21—Overtime.

(c) An employer may pay a full-time, part-time or casual employee a piece rate for 
performing a task.

(d) The employer must fix the piece rate at a level which enables a pieceworker 
competent at the piecework task to earn at least 15% more per hour than the hourly 
rate for the pieceworker.

NOTE: A pieceworker is paid 200% of the piece rate for work on a public 
holiday (see clause 27.3).

(e) If a pieceworker does any work in addition to the task for which they are being 
paid a piece rate, the pieceworker must be paid for that additional work at the 
hourly rate for the pieceworker.

(f) Despite any other provision of clause 15.2 a pieceworker must be paid no less 
than the amount they would have received if paid for each hour worked at the 
hourly rate for the pieceworker. 

(g) Pieceworkers are paid allowances under clause 18 (other than meal allowance) in 
addition to the rates payable under clauses 15.2(d), (e) and (f).

(h) Before a pieceworker begins a piecework task for an employer, the employer must 
give the pieceworker a written record signed by the employer (a piecework 
record) that must:

(i) state the date and time the piecework is to commence;

(ii) describe the task for which the piece rate will be paid;

(iii) state the amount of the piece rate;

(iv) include the following statement:

‘Under the Horticulture Award 2020 a pieceworker must be paid no less 
than the amount they would have received if paid for each hour worked at 
their hourly rate under the Award (including the 25% casual loading for a 
casual pieceworker).’

and








[2021] FWCFB 5554

174

(v) state the hourly rate for the pieceworker.

NOTE: An example of the type of record required by clause 15.2(h) is at 
Schedule I—Piecework Record.  There is no requirement to use the form of 
record set out in Schedule I—Piecework Record.

(i) If an employer proposes to change the piece rate or piecework task of a 
pieceworker the employer must first give the pieceworker a further piecework 
record including the new rate or task.

(j) The employer must keep the following as employee records:

(i) a copy of each piecework record given to the pieceworker; and

(ii) a record of all hours worked by the pieceworker and the applicable piece 
rate at the time those hours were worked.

(k) For the purposes of the NES the base rate of pay and full rate of pay of a 
pieceworker are the same and are worked out as follows: 

(i) By dividing the total amount earned by the pieceworker during the relevant 
period by the total hours worked by the pieceworker during the relevant 
period.

(ii) If the pieceworker was continuously employed by the employer for a 
period of 12 months or more immediately before the rate of pay is to be 
worked out—the relevant period is the 12 months before the rate is to be 
worked out.  If the pieceworker was continuously employed by the 
employer for a period of less than 12 months immediately before the rate 
of pay is to be worked out—the relevant period is that period.

2. By replacing ‘piecework rate’ in clause 27.3 with ‘piece rate’.

3. By inserting a new Schedule I—Piecework record as set out in the attachment to this 
determination.

4. By updating the table of contents accordingly.

B. This determination comes into operation on XX MONTH 2021. In accordance with 
s.166(5) of the Fair Work Act 2009, this determination does not take effect in relation to a 
particular employee until the start of the employee’s first full pay period that starts on or after 
XX MONTH 2021.

PRESIDENT








[2021] FWCFB 5554

175

ATTACHMENT E

SCHEDULE I—Piecework record

Link to PDF copy of Piecework Record

Name of pieceworker: _____________________________________________

Name of employer: _____________________________________________

The piecework will commence on: ___/___/20___ at: _____ am/pm

The piecework task is: ___________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

The pieceworker will be paid for the piecework the amount of $_______ per ____________

Under the Horticulture Award 2020 a pieceworker must be paid no less than the 
amount they would have received if paid for each hour worked at their hourly rate 
under the Award (including the 25% casual loading for a casual pieceworker).

The pieceworker’s hourly rate under the Award is $_______ per hour.

Name of employer representative: ___________________________________________

Signature of employer representative: ________________________________________

Date signed: ___/___/20___








[2021] FWCFB 5554

176

ATTACHMENT F

AFPA Proposed Clause 15.2

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:

i. The base rate of pay for a pieceworker is the base rate of pay as defined 
in the NES.








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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).

Cases cited by this decision: