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, 14 DECEMBER 2021
Horticulture Award 2020 – application to vary an award – Pieceworker rates –minimum
hourly rate – provisional view.
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 sought to vary clause 15.2 of the Horticulture Award, which deals with
pieceworker rates.
[2] On 3 November 2021 we issued a decision2 (the November decision) in relation to the
Application. In our decision we expressed the provisional view that it is necessary to vary the
Horticulture Award in the terms set out in the draft determination at Attachment D to the
November decision (Attachment A to this Statement). We made 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
1 Fair Work Commission, Horticulture Award 2020, MA000028.
2 [2021] FWCFB 5554.
[2021] FWCFB 6067
STATEMENT
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/awardmod/variations/2020/am2020104-application-awu-151220.pdf
[2021] FWCFB 6067
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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.
[3] In response to the directions, we received the following submissions:
Agribit Software
Australian Catholic Migrant and Refugee Office
Australian Catholic Religious Against Trafficking in Humans
Australian Fresh Produce Alliance
Australian Industry Group (Ai Group)
Australian Workers’ Union (AWU)
Blueberry Fields
Citrus Australia
Citrus SA
Dermark Pty Ltd
F Battistel
Fruit Growers Tasmania
Fruit Growers Victoria
Grandview Orchards
Greater Shepparton City Council
Growcom
Gunnible Pastoral Company
H.W.Pogue & Co.
Industrial Committee of FGV (Fruit Growers Victoria) and CDFGA (Cobram and
District Fruit Growers Association)
Luscious Citrus Pty Ltd
National Farmers Federation (NFF)
Northern Victorian Fresh Tomato Growers Association
NSW Cherry Growers Association
NSW Farmers (Industrial) Association
PFT Agriculture
Roths Citrus
Sunny Ridge
Sutton Farms
United Workers' Union (UWU)
[4] We also received the following submissions in reply:
88 Days and Counting
Ai Group
AWU
UWU
Fruit Growers Tasmania
mailto:amod@fwc.gov.au
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-np-261121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-acmro-261121.pdf
https://www.fwc.gov.au/documents/awardmod/variations/2020/am2020104-sub-acrath-181121.pdf
https://www.fwc.gov.au/documents/awardmod/variations/2020/am2020104-sub-afpa-261121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-aig-261121.pdf
https://www.fwc.gov.au/documents/awardmod/variations/2020/am2020104-sub-awu-261121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-blueberryfields-261121.pdf
https://www.fwc.gov.au/documents/awardmod/variations/2020/am2020104-sub-ca-261121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-citrussa-251121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-dermark-251121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-fb-261121.pdf
https://www.fwc.gov.au/documents/awardmod/variations/2020/am2020104-sub-fgt-261121.pdf
https://www.fwc.gov.au/documents/awardmod/variations/2020/am2020104-sub-fgv-261121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-gvo-251121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-gscc-261121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-growcom-261121.pdf
https://www.fwc.gov.au/documents/awardmod/variations/2020/am2020104-sub-gunnible-221121.pdf
https://www.fwc.gov.au/documents/awardmod/variations/2020/am2020104-sub-hwpc-241121.pdf
https://www.fwc.gov.au/documents/awardmod/variations/2020/am2020104-sub-icfgv-261121.pdf
https://www.fwc.gov.au/documents/awardmod/variations/2020/am2020104-sub-icfgv-261121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-lc-261121.pdf
https://www.fwc.gov.au/documents/awardmod/variations/2020/am2020104-sub-nff-261121.pdf
https://www.fwc.gov.au/documents/awardmod/variations/2020/am2020104-sub-nvftga-261121.pdf
https://www.fwc.gov.au/documents/awardmod/variations/2020/am2020104-sub-nswcga-261121.pdf
https://www.fwc.gov.au/documents/awardmod/variations/2020/am2020104-sub-nswfa-261121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-ptfa-271121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-rc-251121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-sr-261121.pdf
https://www.fwc.gov.au/documents/awardmod/variations/2020/am2020104-sub-sf-261121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-uwu-261121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-88dc-091221.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-aig-101221.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-awu-101221.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-uwu-101221.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-fgt-101221.pdf
[2021] FWCFB 6067
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NFF
NSW Farmers (Industrial) Association
[5] No requests for an oral hearing were received. Accordingly, we will proceed to
determine this matter on the papers.
[6] We will publish a summary of these submissions shortly. Interested parties will be
invited to comment on the accuracy of that summary.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR736745
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-nff-101221.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-nswfa-101221.pdf
[2021] FWCFB 6067
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ATTACHMENT A - 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);
(b) The following clauses of this award do not apply to a pieceworker:
MA000119 PRXXXXXX
DRAFT DETERMINATION
AUSTRALIA FairWork Commission
[2021] FWCFB 6067
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(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
(v) state the hourly rate for the pieceworker.
[2021] FWCFB 6067
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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 6067
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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___
