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, 16 DECEMBER 2021
Horticulture Award 2020 – application to vary an award – Pieceworker rates –minimum
hourly rate – provisional view –summary of submissions.
1. Background
[1] On 15 December 2020, the Australian Workers’ Union (AWU) made an application to
vary the Horticulture Award 2020 (the Horticulture 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. We invited interested parties to comment on the proposed draft variation
determination and our provisional view.
[3] In a Statement dated 14 December 2021,3 we said that we would publish a summary of
the submissions received from interested parties. A summary of submissions prepared by
Commission staff is attached to this Statement.
[4] Interested parties are invited to comment on the accuracy of the summary of
submissions. Any comments should be submitted to amod@fwc.gov.au by 4 pm on Thursday
20 January 2022.
1 Fair Work Commission, Horticulture Award 2020, MA000028.
2 [2021] FWCFB 5554.
3 [2021] FWCFB 6067
[2021] FWCFB 6070
STATEMENT
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/awardmod/variations/2020/am2020104-application-awu-151220.pdf
mailto:amod@fwc.gov.au
[2021] FWCFB 6070
2
[5] As noted in our Statement of 14 December 2021, we will then proceed to finalise this
matter on the papers.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR736844
3
SUMMARY OF SUBMISSIONS
Note: This summary of submissions document has been prepared by staff of the Fair Work
Commission. It does not represent the concluded view of the Commission on any issue.
[1] On 3 November 2021 the Full Bench issued a decision4 (the November decision) in
relation to the AWU’s application to vary the Horticulture Award. In the November decision
the Full Bench 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). The Full Bench made the following directions to provide
interested parties with an opportunity to comment on the proposed draft variation determination
and the 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.’
[2] In response to the directions, the following submissions were received:
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
4 [2021] FWCFB 5554.
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
[2021] FWCFB 6070
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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)
[3] The following submissions in reply were also received:
88 Days and Counting
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
[2021] FWCFB 6070
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Ai Group
AWU
UWU
Fruit Growers Tasmania
NFF
NSW Farmers (Industrial) Association
[4] A number of the submissions received, particularly from individual enterprises,
generally oppose the decision to insert a minimum wage floor in the Horticulture Award, citing
various reasons for their opposition.5 Those submissions are not summarised in detail in this
document but those parties generally submitted that the insertion of a minimum wage floor will
cause:
increased administrative and managerial burden and increased costs;
labour shortages, loss of productive workers due to lack of incentive and a need to
lay off underperforming workers;
disadvantage or discrimination towards underperforming workers; and/or
loss of global competitiveness in export markets.
[5] The submissions of the major parties to this matter are set out below. Submissions in
relation to the proposed operative date of the draft determination are summarised from
paragraph [81].
Australian Fresh Produce Alliance
[6] In relation to clause 15.2(a) the AFPA submits that the period of time necessary to attain
deemed competence should be expressed in hours rather than weeks, to accommodate part-time
workers and irregular rosters.6 AFPA proposes that the definition of ‘pieceworker competent at
the piecework task’ should be amended as follows:
5 Blueberry Fields submission, 26 November 2021; Citrus Australia submission, 26 November 2021; Citrus SA submission,
26 November 2021; Dermark Pty Ltd submission, 26 November 2021; F Battistel submission, 26 November 2021; Fruit
Growers Victoria submission, 26 November 2021; Grandview Orchards submission, 25 November 2021; Greater Shepparton
City Council submission, 26 November 2021; Growcom submission, 26 November 2021; Gunnible Pastoral Company
submission, 22 November 2021; H.W.Pogue & Co. submission, 24 November 2021; Industrial Committee of FGV (Fruit
Growers Victoria) and CDFGA (Cobram and District Fruit Growers Association) submission, 26 November 2021; Luscious
Citrus Pty Ltd submission, 26 November 2021; Northern Victorian Fresh Tomato Growers Association submission, 26
November 2021; NSW Cherry Growers Association submission, 26 November 2021; PFT Agriculture submission, 29
November 2021; Roths Citrus submission, 25 November 2021; Sunny Ridge submission, 26 November 2021; Sutton Farms
submission, 26 November 2021.
6 AFPA submission, 26 November 2021 at 12.
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
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
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-blueberryfields-261121.pdf
https://www.fwc.gov.au/documents/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/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/documents/awardmod/variations/2020/am2020104-sub-gunnible-221121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-hwpc-241121.pdf
https://www.fwc.gov.au/documents/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/documents/awardmod/variations/2020/am2020104-sub-nvftga-261121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-nswcga-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/documents/awardmod/variations/2020/am2020104-sub-sf-261121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-afpa-261121.pdf
[2021] FWCFB 6070
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‘pieceworker competent at the piecework task means a pieceworker who has at least
76 hours’2 weeks’ experience performing the task (for example, picking apples, picking
strawberries or pruning grape vines);’
[7] The AFPA submits that draft clause 15.2(d) addresses some of the issues identified in
the November decision. However it submits that draft clause 15.2(d) effectively requires piece
rates to be set by reference to the slowest deemed-competent pieceworker and that manifestly,
this shift of the reference point from average competent to slowest competent would
significantly increase piece rates and make the new hourly rate floor superfluous.7 It submits
that the reference point for setting piece rates under draft cl 15.2(d) should be average
productivity, but without reintroducing the subjective concept of an average competent
pieceworker.8
[8] It also submits that clause 15.2(d) contains no express machinery provisions for how to
calculate a compliant piece rate. It states that the clause should be amended to prescribe a
procedure for determining the minimum piece rate.9
[9] The AFPA submits that to fix a piece rate that complies with the uplifted hourly rate
target, there is an inherent requirement to use a productivity reference point against which the
uplifts to be assessed. The AFPA submits that this reference point should be10:
a) determinate and objectively ascertainable, with express provision for regular review and
adjustment; and
b) linked to mathematically average productivity rather than the productivity of the slowest
competent employee.
[10] The AFPA submits that the new requirement for the employer to keep time records in
draft clause 15.2(j) means that employers will now have the productivity data that can provide
an objective mathematical reference point for calculating average productivity without re-
introducing the existing subjective concept of an ‘average competent employee’.
[11] AFPA submits that draft clause 15.2(d) should be amended to provide this objective
reference point linked to average productivity while preserving the existing wording of the
headline obligation as follows:
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. To do so:
(i) The employer must determine whether the piece rate enables a pieceworker competent
at the piecework task to earn the minimum amount required by this clause by reference
to the average productivity of its pieceworkers competent at the piecework task during
the previous pay period.
7 AFPA submission, 26 November 2021 at 2(a)(i) and 13(a).
8 AFPA submission, 26 November 2021 at 2(a)(i).
9 AFPA submission, 26 November 2021 at 2(a)(ii).
10 AFPA submission, 26 November 2021 at 14.
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-afpa-261121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-afpa-261121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-afpa-261121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-afpa-261121.pdf
[2021] FWCFB 6070
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(ii) If the piecework task was not performed during the previous pay period or if no
pieceworkers competent at the piecework task performed the task during the previous
pay period, the employer must determine whether the piece rate enables a pieceworker
competent at the piecework task to earn the minimum amount required by this clause
by reference to a reasonable pre-estimate of the average productivity of pieceworkers
competent at the piecework task.
(iii) The employer must review its piece rates at the end of every pay period and adjust them
if necessary to achieve the minimum piece rate required by this clause.
[12] With respect to draft clauses 15.2(a)(i) and 15.2(f), the AFPA submits that these
provisions give rise to 3 potential ambiguities, as follows11:
‘First, the definition of hourly rate could be construed as requiring the 25% casual loading
to be included in the hourly rate for all pieceworkers. In other words, the words “for a
casual pieceworker” at the end of the definition could be read as being part of the
description of the 25% loading, rather than qualifying the application of the loading to
only casual pieceworkers.
AFPA submits that this should be clarified by amending the definition of hourly rate as
follows:
hourly rate for the pieceworker means the minimum hourly rate for the
pieceworker’s classification level plus, in the case of a casual pieceworker, the
25% casual loading under clause 11.3 for a casual pieceworker;
Secondly, draft clause 15.2(f) requires a comparison between the amount paid to the
pieceworker and the amount that the pieceworker “would have received if paid for each
hour worked at the hourly rate for the pieceworker”. But it does not specify over what
period the comparison is to be performed.
AFPA submits that draft clause 15.2(f) should be amended to make it clear that the
relevant comparison is to be done over a pay period and not for individual hours within
the pay period.’
Thirdly, draft clause 15.2(f) could be construed as requiring penalties and loadings to
be included when calculating “the amount [the pieceworker] would have received if
paid for each hour worked at the hourly rate for the pieceworker”. Put differently, the
words “if paid for each hour worked at the hourly rate for the pieceworker” could be
construed as meaning “if engaged as a timeworker at the base rate of the hourly rate for
the pieceworker”.
AFPA submits that draft clause 15.2(f) should be amended to make clear that the hourly
rate for the pieceworker is intended to be a flat hourly rate floor.
AFPA proposes the following amendment to give effect to the last two submissions:
11 AFPA submission, 26 November 2021 at 18-27.
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-afpa-261121.pdf
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Despite any other provision of clause 15.2, in each pay period a pieceworker
must be paid no less than the number of hours worked during the pay period
multiplied by the amount they would have received if paid for each hour worked
at the hourly rate for the pieceworker.’
[13] With respect to draft clause 15.2(i), AFPA submits that the words ‘must first’ suggest
that the obligation to provide the piecework record must be discharged before a change in the
piece rate takes effect and contends that this may not be reasonably practicable in all cases.12
AFPA submits that these problems can be avoided without eroding the protections that the
piecework record is designed to provide and proposes that clause 15.2(i) be replaced with the
following:
(i) If an employer proposes to engage the pieceworker to perform a new piecework task
not covered by an existing piecework record, the employer must give the pieceworker
a further piecework record including the new task before commencement of the new
task.
(ii) If an employer proposes to change the piece rate of a pieceworker, the employer must
inform the pieceworker of the new rate before commencement of work under the new
rate and must give the pieceworker a further piecework record including the new rate
as soon as reasonably practicable.
[14] AFPA submits that draft clause 15.2(h) seems to contemplate that a piecework record
can only cover one task, such that if an employee is engaged to perform multiple piecework
tasks, they will need to be provided with a separate piecework record for each task. AFPA
submits that this creates unnecessary paperwork and submits that draft clause 15.2(h) should be
amended as follows to permit a single paperwork record to cover multiple piecework tasks13:
‘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(s) for which the piece rate will be paid;
(iii) state the amount of the piece rate for each piecework task;
(iv) include the following statement: […]’
[15] AFPA further submits that the statement included with the piecework record under draft
clause 15.2(h) should be amended as follows to reflect the other amendments it proposed14:
‘Under the Horticulture Award 2020 in each pay period a pieceworker must be paid no
less than the number of hours worked during the pay period multiplied by amount they
would have received if paid for each hour worked at their hourly rate under the Award
(including the 25% casual loading in the case of for a casual pieceworker).’
12 AFPA submission, 26 November 2021 at 29.
13 AFPA submission, 26 November 2021 at 30.
14 AFPA submission, 26 November 2021 at 31.
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-afpa-261121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-afpa-261121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-afpa-261121.pdf
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Australian Industry Group
[16] The Australian Industry Group (Ai Group) raises 2 issues in relation to the draft
determination. Firstly, Ai Group submits that the definition of ‘hourly rate for the pieceworker’
in the draft cl.15.2(a)(i) should confirm that it only pertains to the minimum hourly rates under
the Horticulture Award and does not incorporate over-award rates paid pursuant to an
employment contract.15 It proposed the following variation accordingly:
‘hourly rate for the pieceworker means the minimum hourly rate for the pieceworker’s
classification level under this Award plus the 25% casual loading under clause 11.3 for
a casual pieceworker’
[17] The second issue raised by Ai Group relates to draft clause 15.2(e). It is submitted that
the draft clause should clarify that it applies only to work performed at the request of the
employer.16 Ai Group proposes a variation to the draft clause as follows:
‘If a pieceworker does an employer requests a pieceworker to perform 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.’
Australian Workers’ Union
[18] The Australian Workers’ Union (AWU) supports the provisional view and the terms of
the draft determination set out at Attachment D of the November Decision. AWU submits that
in addition to the minimum wage floor and time recording provisions, the changes proposed in
the draft determination significantly improve the existing piecework clause in a number of
important respects and are necessary and appropriate essentially for the reasons given in the
November Decision.17
[19] AWU submits that the insertion of a definition of a ‘pieceworker competent at the
piecework task’ at draft clause 15.2(a)(iii) is a useful and necessary measure to address the
uncertainty and ambiguity of the existing provision as interpreted in Fair Work Ombudsman v
Hu (No 2).18 It submits that the period of 2 weeks’ experience to become a competent
pieceworker represents a conservative provision. For the reasons set out in the AWU’s final
submissions, the evidence suggested that workers are generally able to become competent
within a few days or a week of commencing.19
[20] AWU submits that the removal of the requirement that the piece rate be agreed between
the employer and employee is necessary given the findings of the Full Bench that piece rates
are not generally the product of any genuine negotiation and agreement.20
15 Ai Group submission, 26 November 2021 at 2 and 5.
16 Ai Group submission, 26 November 2021 at 2 and 8.
17 AWU submission, 26 November 2021 at 4.
18 [2018] FCA 1034
19 AWU submission, 26 November 2021 at 5.
20 AWU submission, 26 November 2021 at 6.
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-aig-261121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-aig-261121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-awu-261121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020104-sub-awu-261121.pdf
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[21] AWU submits that the draft clause 15.2(f) gives effect to the decision of the Full Bench
to insert a minimum wage floor and is supported by the record keeping requirement in clause
15.2(j)(ii), and is consistent with its application.21
[22] AWU submits that the record keeping requirements in draft clauses 15.2(h) and
15.2(j)(i) are consistent with the existing requirement to have a written piecework agreement,
and that the additional record keeping requirements are also beneficial. 22
Fruit Growers Tasmania
[23] Fruit Growers Tasmania (FGT) filed a submission on 26 November 2021, and thereafter
filed a submission in reply on 10 December 2021 whereby it made various amendments to its
initial submission. The following provides a summary of FGT’s position as it currently stands
in light of its submission and submission in reply. FGT’s response to submissions made by
other parties is set out further below at [65]-[66].
[24] Fruit Growers Tasmania (FGT) submits that draft clause 15.2(a)(iii) raises issues of how
employees can be reliably expected to demonstrate evidence of prior experience in previous
workplaces, whether that experience is in “performing the task”, and how employers are to
determine the veracity of these claims.23 It submits that an amendment to draft clause
15.2(a)(iii) is required by inserting the words “with their current employer” after the word
“experience”.24 FGT further submit that the words ‘2 weeks experience’ should be replaced by
’76 hours’ experience’. FGT’s proposed amendments to clause 15.2(a)(iii) are set out below:
‘pieceworker competent at the piecework task means a pieceworker who has at least 76
hours’ 2 weeks’ experience with their current employer performing the task (for
example, picking apples, picking strawberries or pruning grape vines)’
[25] FGT further submits that to assist in providing clarity of the intent and application of
the minimum wage floor, a definition of ‘average hourly rate of a pieceworker’ should be added
at draft clause 15.2(a)(iv) as follows25:
‘(iv) The average hourly rate of a pieceworker for the period of payment means the
calculated value of adding all piece work payments made to the pieceworker during the
period of payment, and dividing this by the total hours worked by the pieceworker during
the period of payment in pieceworker tasks.’
[26] FGT also proposes that draft clause 15.2(f) be amended to include a reference to the
definition proposed for clause 15.2(a)(iv) as follows26:
21 AWU submission, 26 November 2021 at 7.
22 AWU submission, 26 November 2021 at 8.
23 FGT submission, 26 November 2021 at 6.
24 FGT submission, 26 November 2021 at 7, and submission in reply, 10 December 2021 at 12.
25 FGT submission, 26 November 2021 at 21.
26 FGT submission, 26 November 2021 at 22, and submission in reply, 10 December 2021 at 15.
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‘Despite any other provision of clause 15.2 the average hourly rate of a pieceworker for
the period of payment must be no less than if paid for each hour worked at the hourly
rate for the pieceworker.’
[27] FGT submits that these proposals incorporate the term ‘period of payment’ already
defined in clause 16.1 of the Horticulture Award.27
[28] In relation to draft clause 15.2(d), FGT states that the draft clause is not simple and is
open to multiple interpretations based on whether the intent is that piecework rates are to be set
individually or collectively across all pieceworkers competent at the piecework task, the process
by which a piecework rate is to be determined to “enable” a pieceworker to attain the ‘Uplift’
and the nature of worker selection to test whether a particular piecework rate is compliant with
this clause for the basis of adjustment or enforcement.28
[29] FGT submits that new definitions be inserted into draft clause 15.2(a) to provide clarity
as to the intent and application of the ‘Uplift Term’. It proposes these definitions read as
follows29:
‘(v) The average hourly rate of an individual pieceworker competent at the piecework
task for the period of payment means the calculated value of adding all payments made
to the pieceworker during the period of payment using piece rates, and dividing this by
the total hours worked by the pieceworker during the period of payment in pieceworker
tasks.
(vi) The average hourly rate of all pieceworkers competent at the piecework task for the
period of payment means the calculated value of either:
adding the average hourly rates of all individual pieceworkers competent at the
piecework task for the period of payment; and
dividing this by the number of pieceworkers competent at the piecework task
for the period of payment;
or
adding all payments made to all competent pieceworkers during the period of
payment using piece rates, and dividing this by the total hours worked by all
competent pieceworkers during the period of payment in pieceworker tasks.
NOTE: For the purposes of the above calculation, the average hourly earnings of any
pieceworker competent at the piecework task can be no less than the hourly rate for the
pieceworker as defined in clause 15.2(a)(i), as the employer is required to pay a
pieceworker no less than this rate under clause 15.2(f).’
27 FGT submission in reply, 10 December 2021, at 9-15.
28 FGT submission, 26 November 2021 at 29.
29 FGT submission in reply, 10 December 2021, at 23.
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[30] FGT states that both definitions of average should be specifically included to promote
the application and compliance of employers.30
[31] In addition, FGT proposes draft clause 15.2(d) be amended as follows31:
‘The employer must fix the piece rate at a level which ensures that the average hourly rate
of all pieceworkers competent at the piecework task for the period of payment is enables
a pieceworker competent at the piecework task to earn at least 15% more per hour than
the hourly rate for the pieceworker.32
National Farmers’ Federation
[32] The National Farmers’ Federation (NFF) submits that the apparent effect of provisional
clause 15.2(f) is to require an employer to compare the earnings (piece rate to hourly rate) on
an hourly basis and, if in any given hour, the piece rate earnings is less than the hourly rate then
the grower must make up the difference for that given hour.33 It submits that this comparison
process will require the employer to engage in an audit and reconciliation for each hour for each
employee’s work.34 It further submits that for any growers this is a process which they will need
to perform only occasionally and this will have the greatest impact on small growers who do
not have a dedicated personnel/HR resource.
[33] The NFF submits that a more manageable approach would be to require growers to
engage in this comparison over a longer period. It submits that the unit of ‘comparison’ should
be each pay period – provided that a pay period is no more than 2 weeks – rather than each
hour.35 It submits that this will ensure that the employee ultimately receives at least the
minimum wage for the period, while making the system simpler for the growers to implement.
The NFF submits that draft clause 15.2(f) should be varied as follows36:
‘Despite any other provision of clause 15.2, over the course of a full pay period 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.’
[34] In relation to draft clause 25.2(d) and 15.2(a), the NFF submits that in combination these
new provisions require the piece rate to be fixed at an amount which would enable a worker
with at least 2 weeks’ experience to earn 15% more than they would otherwise earn on hourly
rates but does not provide enough guidance to employers as to the type of employee or the
picking rate at which the piece rate should be set.37 It submits that the redraft does not identify
where the worker should have acquired their experience and that the draft clause 15.2(d) leaves
30 FGT submission in reply, 10 December 2021, at 22.
31 FGT submission in reply, 10 December 2021, at 24.
32 FGT submission, 26 November 2021 at 33.
33 NFF submission, 26 November 2021 at 4.
34 NFF submission, 26 November 2021 at 5.
35 NFF submission, 26 November 2021 at 11.
36 NFF submission, 26 November 2021 at 13.
37 NFF submission, 26 November 2021 at 17 and 18.
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some ambiguity as to the ‘type’ of employee or employees who must be able to earn 15% more
than the relevant minimum hourly rate.38
[35] It submits that clause 15.2(a) should be varied to define ‘pieceworker competent at the
piecework task’ to be:
‘A pieceworker who has at least 2 weeks’ experience performing the task (for
example, picking apples, picking strawberries or pruning grape vines) with the
employer’s enterprise.’39
[36] It submits that draft clause 15.2(d) may be read to mean that the piece rate has to be set
so that40:
a) Each individual employee (with more than 2 weeks experience) is able to earn 15%
more than the applicable hourly rate, so that each employee should have their own piece
rate;
b) Any employee (with more than 2 weeks experience) is able to earn 15% more than
the applicable hourly rate, so that the entire workforce has a piece rate set to the pick
rate of just one (e.g. the fastest and most productive) worker; or
c) Every employee (with more than 2 weeks’ experience) is able to earn 15% more than
the applicable hourly rate, so that the entire workforce has a piece rate set to the picking
rate of the slowest and least productive worker.
[37] The NFF submits that the revised provision should retain the approach of pegging the
rate to the performance of the average competent employee, so that draft clause 15.2(d) should
be varied as follows41:
The employer must fix the piece rate at a level which enables an average pieceworker
who is performing the piece rate task and who is a pieceworker competent at the
piecework task to earn at least 15% more per hour than the hourly rate for the
pieceworker.
[38] The NFF submits that an alternative may be to require employers to set the piece rate
based on the mean picking rate of all competent pieceworkers.42
NSW Farmers (Industrial) Association
[39] NSW Farmers (Industrial) Association (NSWFA) proposes that for the purposes of
clarity, an explanatory note should be inserted following the draft clause 15.2(a)(i) indicating
that clause 15.3 should be taken into account when determining the hourly rate for junior
pieceworkers. NSWFA submits that this approach is consistent with that taken by the Full
38 NFF submission, 26 November 2021 at 19 and 21.
39 NFF submission, 26 November 2021 at 20.
40 NFF submission, 26 November 2021 at 22.
41 NFF submission, 26 November 2021 at 23.
42 NFF submission, 26 November 2021 at 24.
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Bench to incorporate other clauses relevant to pieceworkers into the draft clause 15.2, such as
the inclusion of the note following clause 15.2(d).43
[40] NSWFA submits that the consequence of draft clause 15.2(f), when read together with
the explanation provided by the Full Bench at paragraph [574] of the November Decision, is
that an employer is required to undertake a comparison between an employee’s earnings by
piece rate and the hourly rate and make up any shortfall for each hour. NSWFA submits that
the additional resources required for employers to meet this requirement is cost prohibitive, and
requires 8 checks per employee per 8-hour day. NSWFA submits that the comparison should
instead be conducted per pay period and proposes the clause 15.2(f) be amended as follows:44
(f) Despite any other provision of clause 15.2, over the course of a full pay period
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.
[41] NSWFA submits that the draft clause 15.2(a)(iii) raises questions on the information
that employees can be reasonably expected to provide concerning their experience and the
method available for employers to verify that information. To simplify this, NSWFA proposes
that draft clause 15.2(a)(iii) be amended as follows:
(iii) a 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) with the employer’s enterprise.
United Workers Union
[42] The United Workers’ Union (UWU) expresses support for the draft determination.45
The UWU also makes submissions in relation to the operative date of the determination and
this submission is discussed further in section 4 below.
Other submissions
[43] Of the remaining submissions received, which are predominantly from horticulture
industry employers, a number contended that the draft determination should make provision for
a training period or training rates for new workers.46
[44] Four parties sought a review or clarification of the time period of over which a
pieceworker’s earnings are to be compared for the purposed of meeting the minimum payment
entitlement under draft clause 15.2(f). Citrus Australia submits that a period of assessment
43 NSW Farmers (Industrial) Association submission, 26 November 2021, at 7.
44 NSW Farmers (Industrial) Association submission, 26 November 2021, at 8-13.
45 UWU submission, 26 November 2021.
46 Citrus Australia submission, 26 November 2021; Fruit Growers Victoria submission, 26 November 2021; Greater
Shepparton City Council submission, 26 November 2021; Gunnible Pastoral Company submission, 22 November 2021;
Industrial Committee of FGV (Fruit Growers Victoria) and CDFGA (Cobram and District Fruit Growers Association)
submission, 26 November 2021.
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‘more than hourly’ should be inserted in clause 15.2(f).47 Growcom and Fruit Growers Victoria
submit that a review should be conducted over a full pay period.48
[45] Comments were also received from horticulture employers in relation to the benchmarks
set by the draft determination. Sunny Ridge submits that the draft determination fails to define
the ‘average competent worker’ or provide a formula for easily and clearly identifying the
same.49 Growcom submits that there needs to be greater guidance in the final determination as
to how piecework rates are calculated and set and states that the employee or cohort of
employees to be used as a reasonable benchmark of productivity requires clarification.50
Submissions in reply
Australian Workers’ Union
[46] The AWU submits the proposal from Citrus Australia that a trainee wage rate be inserted
into the Horticulture Award is beyond the scope of the submissions sought by the Full Bench
in relation to the draft determination and could not reasonably occur as part of the current
proceedings given it would need to be justified by evidence and work value reasons.51
[47] In relation to the NSWFA proposal of inserting a note alerting users to the junior rates
in clause 15.3 of the Horticulture Award below the definition of ‘hourly rate for the
pieceworker’ in draft clause 15.2(a)(i), the AWU submits it does not dispute that the wage floor
for a junior employee is determined by reference to the percentages in clause 15.3 and does not
oppose the addition of a note in the following terms at the end of draft clause 15.2(a)(i)52:
‘NOTE: Clause 15.3 contains percentages used to calculate the minimum hourly rate for
junior employees.’
[48] The AWU does not oppose AFPA’s proposed amendment to clause 15.2(a)(iii).
[49] The AWU states that the submissions of the NFF, NSWFA and AFPA are all consistent
in proposing that the appropriate period for the comparison of piecework earnings and hourly
rates is the pay period albeit the NFF suggests an outer limit of 2 weeks. The AWU submits
that if the Full Bench considers there is merit to the employers’ concerns about draft clause
15.2(f) of the draft determination, the AWU submits that a per day or shift reconciliation would
be appropriate rather than per pay period.53
[50] The AWU submits that in circumstances in which the overwhelming majority of
employees are engaged as casual employees and there is a high level of itinerant and transient
47 Citrus Australia submission, 26 November 2021 at 3.
48 Growcom submission, 26 November 2021 at p.7; Fruit Growers Victoria submission, 26 November 2021 at 1.
49 Sunny Ridge submission, 26 November 2021.
50 Growcom submission, 26 November 2021 at p.7.
51 AWU submission in reply, 10 December 2021 at 6.
52 AWU submission in reply, 10 December 2021 at 9 and 10.
53 AWU submission in reply, 10 December 2021 at 17 and 18.
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work, calculation of the minimum hourly payment should occur on a daily or shift basis54. It
further submits that a calculation on an, at most, daily or shift basis will provide individual
employees with a straightforward capacity to consistently monitor whether the piece rate is
sufficient to ensure that their earnings are exceeding the minimum hourly rate.
[51] The AWU submits that a per day or per shift reconciliation would resolve the double
payment concern expressed by FGT and is consistent with the manner in which the Greater
Shepparton City Council has assumed the wage floor will operate.55
[52] The AWU submits that a per day or shift reconciliation could be included in the draft
determination by amending draft clause 15.2(f) to read as follows:
‘Despite any other provision of clause 15.2, for each day or shift worked a pieceworker
must be no less than the amount they would have received if paid for each hour worked
at the hourly rate for the pieceworker.’
[53] In relation to the calculation of the piecework rate, the AWU opposes the AFPA and
NFF’s proposed amendments to draft clause 15.2(d) stating that the changes would potentially
result in around half of the employees who meet the definition of a ‘pieceworker competent at
the piecework task’ not receiving the 15% uplift.
[54] The AWU submits that the draft determination effectively requires an employer to set
the piece rate at a level that would enable a worker with 2 weeks (or potentially 76 hours) of
experience at the relevant task to earn at least 15% more than the hourly rate for the
pieceworker. Provided the piece rate is set using this method, the earnings of each pieceworker
will fluctuate according to their productivity in accordance with the intent of the piecework
arrangements, subject to the hourly wages floor.56
[55] The AWU submits that the approach in the draft determination is much simpler than the
current provisions and that the employer parties are overstating the difficulties by failing to
adequately recognise that proposed clause 15.2(d) is not prescribing a minimum payment rate
for each employee, it is prescribing how the piece rate must be set by the employer.57
[56] The AWU submits that the alternative proposals advanced by the AFPA and the NFF
would reintroduce the subjective and uncertain features of the existing provision which the Full
Bench found unsatisfactory.58 The AWU accepts that an estimate from the employer would be
required if the task has not previously been performed by an employee for 2 weeks. However,
it is unnecessary for express provision to be made in this respect in the draft determination.59
54 AWU submission in reply, 10 December 2021 at 19.
55 AWU submission in reply, 10 December 2021 at 20.
56 AWU submission in reply, 10 December 2021 at 30.
57 AWU submission in reply, 10 December 2021 at 31.
58 AWU submission in reply, 10 December 2021 at 32.
59 AWU submission in reply, 10 December 2021 at 33.
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[57] The AWU does not consider that the proposed amendments to draft clause 15.2(a)(iii)
by the NFF and NSWFA are necessary.60 The AWU submits that an employer will logically
draw upon experience from their own farm to set a rate that would enable a pieceworker with
2 weeks (or 76 hours) of experience performing the task to earn the 15% uplift. If there is no
relevant experience, they will need to estimate the productivity of an employee with that level
of experience.
[58] The AWU opposes the AWU’s proposed amendments to draft clause 15.2(i), stating
that the draft determination appropriately requires a new piecework record to be provided to
the pieceworker before the relevant work commences. The AWU states that this ensures that
the employer and employee are both clearly informed in writing about the applicable piece rate
whenever the relevant work is being performed.61
[59] The AWU states that given the compliance issues faced by this industry and the
significant component of overseas workers, it is not appropriate for a record that sets the
piecework rate of pay to be provided by the employer by reference to a vague standard such as
‘as soon as reasonably practicable’.62
[60] The AWU contends that Ai Group’s amendment to draft clause 15.2(a)(i) is
unnecessary.63 It is accepted by the AWU that the wage floor is intended to protect the
minimum rates in the Horticulture Award and not higher contractual rates but submits that the
wording in the draft determination reflects this.
[61] The AWU also submits that AFPA’s variation to draft clause 15.2(a) is unnecessary,
stating that the wording in the draft determination is clear.64
[62] The AWU submits that Ai Group’s proposed amendment to draft clause 15.2(e) should
be rejected stating that the amendment proposed is likely to generate disputes about whether a
particular task was requested by the employer and whether a separate explicit request must be
made on each occasion a certain task, such as cleaning up, is undertaken.65 It submits that if an
employee is at work at the direction of the employer and is not taking an unpaid break, the
employee is entitled to be paid if the piecework task is not being performed. It is submitted that
Ai Group’s suggestion may permit an employer to argue that it is not required to pay wages to
an employee who stops performing piecework to do necessary associated work (such as
cleaning or retrieving equipment), unless directly requested to do so by a supervisor. It submits
that such an outcome is inconsistent with the wages-work bargain at the heart of the
employment relationship.
[63] In relation to proposed clause 15.2(f), the AWU opposes AFPA’s proposed insertion of
the words ‘in each pay period’.66 Further, it does not consider that the other changes proposed
60 AWU submission in reply, 10 December 2021 at 36.
61 AWU submission in reply, 10 December 2021 at 38.
62 AWU submission in reply, 10 December 2021 at 39.
63 AWU submission in reply, 10 December 2021 at 41.
64 AWU submission in reply, 10 December 2021 at 43.
65 AWU submission in reply, 10 December 2021 at 45.
66 AWU submission in reply, 10 December 2021 at 48.
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by AFPA are necessary.67 It states that the wage floor in clause 15.2(f) is linked to the definition
of ‘hourly rate for the pieceworker’ in clause 15.2(a)(i) and submits that definition is confined
to the minimum hourly rate plus the 25% casual loading if applicable. The AWU states that
penalties and loadings are not included in this definition and hence are not encompassed by the
wage floor in clause 15.2(f).
[64] In relation to clause 15.2(h) the AWU accepts that a single piecework record can cover
multiple piecework tasks and does not consider a variation to the draft determination as
proposed by the AFPA is necessary for this to be an option for employers.68
Fruit Growers Tasmania
[65] FGT supports the proposal by the AFPA to amend the definition of a “pieceworker
competent at the piecework task” in draft clause 15.2(a)(iii) to specify 76 hours’ experience
instead of 2 weeks’. Together with the proposal in its submission of 26 November to insert the
words “with their current employer”, FGT submits that draft clause 15.2(a)(iii) should be
amended as follows:
(iii) pieceworker competent at the piecework task means a pieceworker who has
at least 76 hours’ 2 weeks’ experience with their current employer performing
the task (for example, picking apples, picking strawberries or pruning grape
vines);69
[66] FGT also supports the AFPA’s submission that draft clause 15.2(a)(i) should be clarified
to remove potential ambiguity about the application of casual loading and supports the AFPA’s
suggested rewording of the clause. However, FGT submits that draft clause 15.2(a)(i) can be
further clarified by incorporating the wording already used in draft clause 15.2(h)(iv), as
follows:
(i) hourly rate for the pieceworker means the minimum hourly rate for the pieceworker’s
classification level under the Award (including the 25% casual loading for a casual
pieceworker) plus the 25% casual loading under clause 11.3 for a casual pieceworker
NSW Farmers (Industrial) Association
[67] In its reply submission70 The NSWFA supports the proposal to vary the definition of
‘pieceworker competent at the piecework task’ in draft clause 15.2(a)(iii) to specify experience
in work hours instead of weeks. The NSWFA submits that 76 work hours is a more accurate
expression of the experience required for a pieceworker to be considered competent than 2
weeks.71
67 AWU submission in reply, 10 December 2021 at 49.
68 AWU submission in reply, 10 December 2021 at 50.
69 FGT submission in reply, 10 December 2021, at 8.
70 NSW Farmers (Industrial) Association submission in reply, 10 December 2021.
71 NSW Farmers (Industrial) Association submission in reply, 10 December 2021, at 3.
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[68] The NSWFA opposes the adoption of FGT’s alternative method determining the
piecework rate to enable pieceworkers to attain ‘uplift’ and submit this method is even more
complex than the method proposed by AFPA, which itself was rejected in the November
Decision as too complex.72 The NSWFA submits that the FGT’s method is not compatible with
the principle that the piece rate must be set in advance, as specified in clause 15.2(h), would
require growers to review applicable piece rates retrospectively and excessively add to the
administrative burden already imposed with the introduction of a minimum hourly payment for
pieceworkers.73
[69] The NSWFA submits that the draft clause 15.2(d) could be interpreted to be saying that
all competent pieceworkers must earn at least 15% more per hour than the applicable hourly
rate, resulting in the productivity of the slowest piecework determining the piece rate. The
NSWFA submits that there is no justification for this in the November Decision.74
[70] The NSWFA submits that draft clauses 15.2(h) and 15.2(i) in combination imply that a
piecework record can only specify one piece rate and a further record must be issued whenever
the piece rate changes. The NSWFA submits this would create a significant administrative
burden for growers considering the piece rate may change frequently to account for different
crops and varieties of crops being picked concurrently or in close timeframe with each other on
the same farm.
[71] The NSWFA supports the AFPA’s proposal to amend draft clause 15.2(i), as it enables
several piece rates to be set in advance for the range of tasks workers would be assigned to,
while maintaining the obligation for employers to notify workers of the application piece rates
prior to the commencement of the piecework task.75
United Workers’ Union
[72] The UWU submits that contrary to the submissions of the employer parties, proposed
clause 15.2(d) does not require that the piece rate be set so that every employee who is a
‘pieceworker competent at the piecework task’ earns the 15% uplift.76 It states that, rather, the
clause requires that the rate be set so that a competent pieceworker is enabled to earn the 15%
uplift. The UWU submits that accordingly it does not consider necessary the proposed changes
by FGT, AFPA and NFF that would require the piece rate to be fixed in accordance with the
average pick rates of pieceworkers.77
[73] In relation to draft clause 15.2(f), the UWU does not agree that the wording of the draft
clause requires employers to conduct a separate and discrete comparison process, each and
every hour of the amount paid to employees through piece rates, against the applicable
minimum hourly rate of pay, or that each and every hour an employer is then required to
reconcile those 2 amounts to ensure that employees earn at least the minimum hourly rate of
72 [2021] FWCFB 5552 at [438].
73 NSW Farmers (Industrial) Association submission in reply, 10 December 2021, at 6-7.
74 NSW Farmers (Industrial) Association submission in reply, 10 December 2021, at 8.
75 NSW Farmers (Industrial) Association submission in reply, 10 December 2021, at 11.
76 UWU submission in reply, 10 December 2021 at 5.
77 UWU submission in reply, 10 December 2021 at 6.
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pay per hour.78 However the UWU would support an amendment requiring a comparison and
reconciliation of the amount paid in piece rates against the applicable minimum hourly rate of
pay on a per shift or per day basis.79
[74] The UWU does not agree to any proposed amendment regarding verbal changes to
piecework rates and submits that an employee has a right to certainty in respect of rates of pay
and therefore, a right to a written record of their rate of pay prior to commencing the piecework
task.80
88 Days and Counting
[75] 88 Days and Counting filed a submission in reply that expressed support for the
arguments presented by the AWU and the UWU.81
[76] In light of AWU’s submission that fruit pickers are able to ‘become competent within a
few days or a week of commencing’, 88 Days and Counting submits that the time required to
gain competency needs to be reduced to one week instead of 2 weeks.
[77] 88 Days and Counting agrees with AFPA’s definition of an ‘average competent
pieceworker’.
[78] However, it opposes the proposed amendment to draft clause 15.2 (a) put forward by
the NFF. It states that these proposed changes do not adequately set a time limit for developing
the competency of a piece worker and do not take into account their past experience picking
and pruning similar fruit and vegetables.82
[79] 88 Days and Counting opposes Ai Group’s amendment to draft clause 15.2(e) stating
that if this amendment is accepted, farming organisations will utilize labour hire companies as
a loophole to get around adequately paying piece workers for any additional work undertaken.83
[80] 88 Days and Counting supports AWU’s submission in relation to draft clauses 15.2(h)
and 15.2(j)(i) and UWU’s in relation to clause 15.2(j)(ii).84
Operative date of the determination
[81] Submissions from the AWU, UWU, FGT, NFF, AFPA and NSWFA in relation to the
operative date of the proposed changes are summarised below.
78 UWU submission in reply, 10 December 2021 at 8.
79 UWU submission in reply, 10 December 2021 at 8.
80 UWU submission in reply, 10 December 2021 at 9.
81 88 Days and Counting, submission in reply, 9 December 2021.
82 88 Days and Counting, submission in reply, 9 December 2021 at p.1.
83 88 Days and Counting, submission in reply, 9 December 2021 at p.4.
84 88 Days and Counting, submission in reply, 9 December 2021 at p.5.
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[82] The UWU and AWU contend that the operative date of the variation determination
should be 1 January 2022.85
[83] The UWU submits that the Horticulture Award as it stands does not prescribe award
minimum wages for pieceworkers, however workers doing the same work as pieceworkers, but
who are paid on a time basis are entitled to receive the minimum rate of pay that the
Commission has determined is appropriate for the work they are performing.86 The UWU
further submits that the Commission has determined that the introduction of the minimum
wages floor, and consequently the record of hours of work, is necessary to meet the modern
awards objective. The UWU submits that if the variation does not take effect until 1 July 2022,
it would result in a further seven months of employees being subject to a modern award that
does not meet the modern awards objective.87
[84] The AWU submits that s.166 of the Fair Work Act 2009 (the Act) must be applied and
cite the Full Bench’s consideration of appropriate transitional arrangements in the penalty rates
matter of the 4 yearly review.88 AWU submits that a discretionary matter, such as whether it is
appropriate to depart from the effective default operative date of 1 July in s.166 of the Act, will
turn on the facts of the particular case, rather than previous decisions or principles.
[85] The AWU submits that the findings in the November Decision of widespread
underpayment of pieceworkers in the industry and that a significant proportion of these
pieceworkers earn less than the National Minimum Wage are compelling reasons for the
Horticulture Award to be varied as soon as possible and that it would not be appropriate for the
variations to take effect on 1 July 2022.89 It further submits that given the widespread non-
compliance with the existing piecework clause, it is inappropriate for the current provisions to
continue to operate until 1 July 2022, and that the findings justify urgent action by the
Commission.
[86] The AWU submits that it agrees with the November Decision at [561] that the draft
determination will make the piecework term simpler, reduce the regulatory burden and promote
compliance and that employers and employees should not have to wait until 1 July 2022 for
these outcomes.90 AWU further submits that the findings in the November Decision at [368]
and [525] in relation to an expected increase in productivity from the introduction of the
changes indicate that negative impacts on employers from an earlier operative date will be
manageable and will not outweigh the positive factors identified.91
[87] The AWU submits that if the variation does not take effect until 1 July 2022, there may
be an influx of applications for approval of enterprise agreements prior to this date, as
employers may attempt to take advantage of the transitional period to ‘lock in’ existing
piecework rates. It points to what it submits as a previous example of this in relation to overtime
85 UWU submission, 26 November 2021 at 27; AWU submission, 26 November 2021 at 13.
86 UWU submission, 26 November 2021 at 23.
87 UWU submission, 26 November 2021 at 26.
88 [2017] FWCFB 3001 at [75].
89 AWU submission, 26 November 2021 at 15.
90 AWU submission, 26 November 2021 at 18.
91 AWU submission, 26 November 2021 at 19.
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entitlements for casual employees in the Horticulture Award in 2019 and similar cases prior.
AWU submits that these experiences provide another factor why it is appropriate for the
variation to take effect on 1 January 2022.92
[88] The AWU submits that an operative date of 1 January 2022 is not unreasonable given
that employers have been on notice about the nature and effect of the Application for almost 12
months, and the content of the draft determination since 3 November 2021.93
[89] FGT and AFPA submit that the proposed variations should come into effect on 1 July
2022, generally contending that time is needed for employers to be ready to comply with the
variations.94
[90] The AFPA submits that employers will need to make financial arrangements to cope
with increased labour costs, adjust their payroll systems to correctly calculate pieceworker pay,
cull unproductive employees and adjust recruitment to become more selective in hiring and put
in place additional management and supervision for pieceworkers. It submits that employers
need time to understand and implement the proposed changes to ensure compliance on
implementation.95
[91] FGT submits that the Decision will require employers to design, construct and
implement comprehensive and cost-effective ‘smart’ systems, employ new employees or at the
very least train current employees, to be able to ensure they comply with draft clause 15.2 and
to do so will take time.96
[92] The NFF submits that the variation should come into operation on 1 July in the next
financial year after the determination is made. It submits that it would not be appropriate for
the determination to take effect on another day per s.166(1)(a), noting that the November
Decision and the new provisions will significantly increase many farms’ wage bill which would
have already budgeted until the end of the 2021/22 financial year.97 The NFF submits further
that to adjust to and correctly implement the new provisions growers will have to adopt
significant changes to the administrative processes of farm businesses. This will be made more
difficult by the uncertainty surrounding COVID-19 and the fact that law and policy, particularly
as it relates to labour movement, are changing rapidly and very difficult to anticipate.
[93] NSWFA submits that a substantial transition time is required from the finalisation of the
amended piecework provisions to their operative date. NSWFA submits that remaining
compliant with the introduction of the minimum hourly rate will involve additional employment
costs and administrative requirements, changes necessary to maintain workforce efficiency to
justify the value for the minimum hourly rate and/or additional costs to pay underperforming
employees the minimum rate, costs which it submits are likely to be absorbed by growers.
NSWFA also cites factors such as the nature of tree crops inhibiting effective on-going
92 AWU submission, 26 November 2021 at 24.
93 AWU submission, 26 November 2021 at 25.
94 FGT submission, 26 November 2021 at 42-47; AFPA submission, 26 November 2021 at 32-37.
95 AFPA submission, 26 November 2021 at 32-36.
96 FGT submission, 26 November 2021 at 42.
97 NFF submission, 26 November 2021 at 31.
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supervision of pickers, time constraints during harvest season where large numbers of workers
are employed for short periods, the lack of dedicated human resources personnel in small and
medium growers, the need to develop pay software to adjust for the new piecework
arrangements as well as labour shortages currently affecting horticulture industry and the need
to engage with labour hire companies as other factors favouring a substantial transition period.98
[94] Submissions in relation to the operative date were also received from Citrus Australia,
Fruit Growers Victoria, the Greater Shepparton City Council, Growcom, H.W. Pogue & Co,
the Northern Victorian Fresh Tomato Growers Association and Sunny Ridge. These parties
favour a delayed operative date with several submissions citing various necessary changes to
business practices and time for the training and hiring of staff to accommodate the proposed
variations.
[95] Northern Victorian Fresh Tomato Growers Association and Greater Shepparton City
Council submit that an operative date 6 months after date of determination is appropriate.
Growcom and Fruit Growers Victoria support an operative date of 1 July 2022.
Submissions in reply regarding operative date
Ai Group
[96] Ai Group opposes the operative date of 1 January 2022, stating that the relevant
amendments should not be made before 1 July 2022. It submits that the amendments will have
a substantial impact on employers who will need to make significant changes to their payroll
and workplace arrangements and that the amendments could also result in the loss of
employment for many employees if employers are not given sufficient time to adjust to the new
arrangements.99
[97] Ai Group submits that the AWU’s submission should not dissuade the Commission
from considering past approaches to determining appropriate operational dates, particularly
when these pertain to award amendments which will lead to an increase in employment costs.100
It submits that the Commission routinely takes into consideration past decisions with respect to
discretionary matters.
[98] Ai Group contends that the AWU’s argument that Commission should determine an
operative date of January 2022 on the grounds of concerns that there will be an influx of
applications for the approval of enterprise agreements prior to the operative date in order to
avoid the impacts of the November Decision should be rejected.101 It contends that the AWU
has provided no evidence that such an influx has emerged or that numerous employers in the
horticulture industry have commenced bargaining in response to the decision.
Australian Workers’ Union
98 NSW Farmers (Industrial) Association submission, 26 November 2021, at 17-23.
99 Ai Group submission in reply, 10 December 2021 at 5.
100 Ai Group submission in reply, 10 December 2021 at 19.
101 Ai Group submission in reply, 10 December 2021 at 21.
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[99] The AWU relies on its submissions filed on 26 November 2021 which propose an
operative date of 1 January 2022.102 It submits that it would be contrary to the modern awards
objective to permit the current clause to continue operating until 1 July 2022 having regard to
the findings of the Full Bench that there is widespread non-compliance with the current
piecework conditions in the Horticulture Award. It further states that allowing the current clause
to continue operating until 1 July 2022 would continue the existing ‘compliance traps’
identified in the Full Bench’s findings.103
Fruit Growers Tasmania
[100] FGT submits that there is no support for the AWU’s assertion that negative impacts for
employers from an earlier operative date are likely to be manageable, and reiterates its previous
submission that an operative date of earlier than 1 July 2022 is not manageable for employers
and will not be conducive to compliance.104
[101] FGT submits that it is clear from its initial submissions on the draft determination and
those received from the AFPA and the NFF, that the draft determination without amendment is
not simpler and easier to understand, as the AWU submits, and as such will not promote
compliance. Accordingly, FGT submits that there is no realistic case to support an operative
date of 1 January 2022.
[102] In response to the AWU regarding concerns that an influx of enterprise agreements may
be made prior to 1 July 2022 to frustrate the effects of the amendments, FGT submits that it has
seen no evidence of this. FGT also submits that there is no merit to the AWU’s argument that
employers have been on notice about the nature and effect of the application since late 2020 as
the timing of an application is irrelevant. FGT submits that it is the timing of the decision and
resulting variation that is relevant and must be complied with, and the final decision is yet to
be made.105
[103] FGT submits that insufficient argument has been presented that would justify the
Commission being satisfied it is appropriate to specify a day other than 1 July 2022, as normally
required under s.166 of the Act, and that an earlier date is unworkable and would seriously
compromise the objective of improving compliance.
National Farmers Federation
[104] Noting the finding in the November Decision that there is widespread non-compliance
with clause 15.2 of the Horticulture Award, the NFF submits that a rapid introduction of the
new provisions may in the short-term result in greater levels of award non-compliance. The
NFF submits that growers need time to adapt their workplaces and administrative systems to
the significant changes to the management of labour on farms that the new provisions will
mandate.106
102 AWU submission in reply, 10 December 2021 at 52.
103 AWU submission in reply, 10 December 2021 at 53.
104 FGT submission in reply, 10 December 2021, at 31.
105 FGT submission in reply, 10 December 2021, at 37.
106 National Farmers’ Federation submission in reply, 10 December 2021, at 7.
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[105] The NFF submits that the AWU and UWU’s proposed start date of 1 January 2022
would see the changes introduced while growers are working long hours focused on harvest,
and with professional support services unable to assist them to implement change during the
Christmas and New Year’ period. The NFF submits that 1 January 2022 would be exceedingly
difficult for growers to achieve and in order to enable compliance and allow for a reasonable
transition period, the presumptive commencement date of 1 July 2021, established by
s.166(1)(a) of the Act, should be retained.
[106] The NFF submits the Full Bench’s finding, relied on in AWU’s submissions, that the
new provisions will increase productivity due to the introduction of an incentive to reduce the
current cohort of unproductive workers, is premised on the assumption that growers will be able
to replace these workers with productive ones. The NFF submits that this assumption is
problematic considering the well documented workforce shortages affecting the industry and
that even assuming this is true, it will take time to achieve.107 As a result, the NFF submits that
the AWU’s submissions in this respect militates against an early implementation and supports
the retention of the presumptive commencement date of 1 July 2022.
[107] In respect of the AWU’s submission that enterprise agreements applications sought to
nullify the effect of overtime for casual provisions introduced by the Commission in 2019, the
NFF submits these claims are speculative and made without supporting evidence. Even
accepting the AWU’s claims, NFF notes that the AWU acknowledge that a number of the
applications were ultimately dismissed as objectionable and submits there is no reason to
conclude this would not happen again.108
[108] The NFF submits that the fact that some growers have been on notice as to the AWU’s
application is irrelevant. The NFF submits that it is not open to the Commission to conclude
that growers should have started to prepare for the changes in December 2020, when AWU’s
Application was made, and it is unreasonable to expect growers to begin preparations until a
final decision is reached.109
NSW Farmers (Industrial) Association
[109] The NSWFA submits that adequate time should be afforded between the finalisation of
the piecework term and the operative date, to allow for industry to communicate to growers
about the changes in detail, and to enable growers to assess and implement the measures
required to comply. The NSWFA submit that there is no appropriate reason for an operative
date earlier that 1 July 2022.110
107 National Farmers’ Federation submission in reply, 10 December 2021, at 10-12.
108 National Farmers’ Federation submission in reply, 10 December 2021, at 14.
109 National Farmers’ Federation submission in reply, 10 December 2021, at 15.
110 NSW Farmers (Industrial) Association submission in reply, 10 December 2021, at 12-13.
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United Workers’ Union
[110] The UWU submits that the employer submissions which seek an operative date later
than 1 January 2022 are unpersuasive for the following reasons111:
(a) The operative date should be delayed for harvest periods: The horticulture industry
contains a variety of crops that have different harvest periods throughout the year. There
is no one time that the determination can come into force that will not affect the harvest
period of a particular crop or grower.
(b) The operative date should be delayed to allow time for training of supervisors:
Employers already employ supervisors and monitor the performance of pieceworkers
through employee pick rates. Any necessary performance management changes can be
implemented through existing practices.
(c) Employers require additional time to make the necessary administrative and record
keeping changes: The employer is simply required to extend their hours of work record
keeping to apply to pieceworkers. Additionally, as stated earlier in these submissions,
the UWU does not agree that employers are required to conduct a discrete comparison
and reconciliation process for each and every hour that piecework is performed. This
reduces the potential administrative burden outlined in employer submissions;
(d) Uncertainty regarding labour supply means the operative date should be delayed: It
is not evident that issues in labour supply impacts on an employer’s ability to implement
changes as a result of the draft determination.
(e) Renegotiation of contracts with labour hire providers: As the employer, it is the
responsibility of the labour hire company to ensure that it is paying the correct rates of
pay to its employees. Therefore, the use of labour hire contractors should not impact
upon the operative date of the determination.
88 Days and Counting
[111] 88 Days and Counting submits that the date should brought forward to 1 January 2022
from 1 July 2022 as per the Section 166(1) of the Act.112
111 UWU submission in reply, 10 December 2021 at 11.
112 88 Days and Counting, submission in reply, 9 December 2021 at p.6.
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