DECISION

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – Horticulture Award 2010
(AM2016/25)

4 yearly review of modern awards – Horticulture Award 2010 – substantive issues.

[1] On 16 November 2017, we issued a Decision 1 in relation to the Horticulture Award 2010 (Horticulture Award) pursuant to ss.156 and 160 of the Fair Work Act 2009 (Cth) (FW Act).

[2] Having regard to the submissions and evidence of the parties; the coverage of the Horticulture Award; developments of the Horticulture Award and the Storage Award; and our inspections, amongst other things, we formed the view that term ‘farm gate’ is a reference to a virtual concept, not a physical area or geographical location. Further, that the relevant employer parties should be covered by the Horticulture Award and not the Storage Services and Wholesale Award 2010 (Storage Services and Wholesale Award).

[3] Having regard to the facts, matters and circumstances set out above, including the matters in s.134(1)(a)-(h) of the FW Act, we held that the Horticulture Award would, if varied in the manner sought by the employer parties, together with the NES, provide a fair and relevant minimum safety net of terms and conditions. We were also satisfied that making the variation sought would result in the Horticulture Award including terms only to the extent necessary to achieve the objective of a fair and relevant minimum safety net.

[4] Pursuant to s.160 of the FW Act, we found that it was appropriate to exercise our discretion to vary the Horticulture Award in the manner sought by the employer parties to resolve the ambiguity and uncertainty in the coverage clause of the Award.

[5] We were also satisfied that there are ‘exceptional circumstances’ that warrant the proposed variation to operate retrospectively from the date of commencement of the Horticulture Award, namely, 1 January 2010.

[6] Draft determinations giving effect to our Decision in relation to the Horticulture Award were set out at paragraphs [172]-[174] and interested parties were given 21 days to comment on the draft determination variations.

[7] We received submissions from the following parties:

•  Australian Industry Group (Ai Group) dated 7 December 2017;

•  The National Union of Workers (NUW) dated 7 December 2017;

•  Mitolo Group Pty Ltd and Maranello Trading Pty Ltd are part of the Mitolo Group of Companies (Mitolo) dated 7 December 2017; and

•  The Australian Workers’ Union (AWU) dated 7 December 2017.

[8] Mitolo subsequently sent correspondence to the Fair Work Commission (FWC) on 8 December 2017 seeking leave for any interested parties to file submissions in reply to the submissions filed on behalf of the AWU and the NUW by Monday, 18 December 2017. We acceded to this request and the following parties made submissions in reply:

•  Ai Group dated 11 December 2017;

•  Mitolo dated 18 December 2017; and

•  The National Farmers’ Federation dated 18 December 2017.

[9] We have fully considered the additional submissions, as well as all prior submissions and evidence filed with the FWC. At [173] of our Decision, in addition to the other proposed variations, we proposed to vary clause 4.3 of the Horticulture Award retrospectively. In its submissions dated 7 December 2017, the AWU contended that the proposed variation of clause 4.3 ‘does not arise from an application pursuant to s 160 of the FW Act and hence it does not appear capable of retrospective application as foreshadowed in the Decision.’ 2 We agree with this submission, noting that the proposed variation to clause 4.3 stems from agreement between the parties and did not arise from an application pursuant to s.160 of the FW Act. Accordingly, we are not satisfied that clause 4.3 of the Horticulture Award can be varied retrospectively.

[10] In any event, having regard to the various submissions of the parties, we are satisfied that the employer parties have made out their application under s.156 of the FW Act and to remove any ambiguity or uncertainty pursuant to s.160 of the FW Act.

[11] Therefore, we will issue a Determination giving effect to this Decision.

VICE PRESIDENT

Final submissions:

Mitolo submissions dated 18 December 2017.

National Farmers’ Federation submissions dated 18 December 2017.

Ai Group submissions dated 11 December 2017.

AWU submissions dated 7 December 2017.

NUW submissions dated 7 December 2017.

 1   [2017] FWCFB 6037.

 2   AWU submissions dated 7 December 2017, [32].

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