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Fair Work Act 2009                                       1055040






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Horticulture Award 2010


(ODN AM2008/14)

[MA000028 Print PR986369]]




9.06 AM, FRIDAY, 4 AUGUST 2017


Continued from 3/08/2017





MR BAKRI:  Thank you, your Honour.  Your Honour, the NUW relies on the written outline of closing submissions that have been filed.  Given the indication that was given yesterday that the materials have been read, I don't intend to go through that in detail.  What I intend to do instead, is firstly, very quickly, step through the relevant key principles, understanding that the Full Bench is well appraised of those principles, so it won't take very long.


I then want to address the terms of the employer parties' proposed variation and after that, I want to respond to the submissions that have been made by the employer parties that warrant a response.  I anticipate it will take in the vicinity of 30 or 40 minutes.




MR BAKRI:  Thank you, your Honour.  Firstly, I'd like to commence with the key passages in the preliminary jurisdictional decision.  I'll just turn that up, your Honour.  In my submission, at paragraph 23 is key and simply summarises the task that is before the Commission.  At paragraph 23 the Full Bench observed that the need for a stable modern award system suggested that parties seeking to vary a modern award, in the context of the review, must advance a merit argument in support of the proposed variation.


The extent of such an argument, would depend on the circumstances.  It goes on to say:


Where a significant change is proposed, it must be supported by a submission which addresses the relevant legislative provisions and (what we say is very significant in this case) be accompanied by probative evidence properly directed to demonstrating the facts supporting the proposed variation.


At 24 the Full Bench went on to find that when conducting a four yearly review the Commission will proceed on the basis that prima facie, the modern award being reviewed achieved the modern award's objective at the time it was created.  Then at paragraph 25 through to 27, the Full Bench observed that according to normal principles, orthodox principles, that four yearly reviews are conducted in the context of previous Full Bench decisions.


Previous Full Bench decisions should be followed unless there are cogent reasons for not doing so.  So, it's not done in the circumstances which are devoid from prior history.  Regard must be had to prior decision, unless of course, there are cogent reasons to depart from prior decision.  These key principles were affirmed recently by the Full Bench in the penalty rates decision.


VICE PRESIDENT CATANZARITI:  You can assume I'm totally familiar with that Mr Bakri.  You can assume I'm totally familiar with these points, given that I was on the penalty rates decision.


MR BAKRI:  Yes.  If I can turn your Honour to the terms of the proposed variation which is AIG3.  In the NUW's submission, the terms of the proposed variation should be rejected.  The proposed clause is a fatal deficiency in the application.  It proposes an arrangement whereby the coverage of the award as its proposed to be amended would be totally uncertain and complex.  It's not in dispute, it cannot be in dispute that it falls on the moving parties to convince the Commission that the clause would be workable.


Pursuant to section 134(1)(g) - - -


VICE PRESIDENT CATANZARITI:  It doesn't stop a Full Bench forming its own views as to what is the right clause.


MR BAKRI:  Of course it doesn't.


VICE PRESIDENT CATANZARITI:  The Full Bench could vary - the fact that one party puts up a clause and your side puts up nothing, doesn't mean that it's all or nothing.


MR BAKRI:  I do not cavil with that proposition.  The Commission is able to determine the application as it sees fit and can replace the clause with something else.  In my submission, it cannot be remedied, and I want to explain why that's the case.  And I should say if the Full Bench was of the mind to grant the application but had a clause in different terms, we would naturally seek to be heard on that clause.


VICE PRESIDENT CATANZARITI:  Yes, and consistent with penalty rates and other decisions, that's what would happen.




VICE PRESIDENT CATANZARITI:  If the Full Bench was minded to grant a variation different to that which has been put, then it would normally be an opportunity after the decision to issue a draft for comment.


MR BAKRI:  Thank you, your Honour.  Pursuant to section 134(1)(g), the terms of the clause are very significant because the Commission is obliged to ensure that in conducting these reviews that the award safety net is simply and easy to understand.  It's significant, not only that the clause is workable and certain, but that it is simply and easy to understand.  The concerns of the NUW in relation to the proposed variation are outlined in our outline of closing submissions at 61(a).


In my submission, Mr Bourke yesterday offered an inadequate response to the serious concerns that have been raised.  Mr Bourke complained that the NUW was raising issues providing no solution.  Well, what can be said about this?  The NUW opposes the proposed variation.  My client opposes the proposed variation for various reasons, including the impact it will have on employees, but also the legitimate reason that it will create great uncertainty in relation to award coverage - the very advice the proposed variation purports to remedy.


It is not incumbent on my client to come up with - to fix the proposed variation that is deficient.  It is incumbent on the moving parties to persuade the Commission to make the variation.  It's not the job of the contradictor.


VICE PRESIDENT CATANZARITI:  There's no such thing in a modern award review and what you're putting is not correct, Mr Bakri.  That has been well travelled.  A modern award review is not one party putting up a submission and another party putting another submission, right?  We're entitled to look at all the material in review and we don't have parties in a modern award review.  That is a bit of a problem if you're putting that proposition.


If you look at all the modern award reviews, the Bench has made it clear, it's not about parties putting up as parties, right?


MR BAKRI:  Yes, your Honour.


VICE PRESIDENT CATANZARITI:  If you choose to run your argument saying that they haven't made their case, that's one thing, but it's not their case ultimately; it's the case of the Bench looking at the evidence holistically.


MR BAKRI:  Yes, your Honour, the NUW accepts this is not inter partes litigation and we're conducting a statutory task of reviewing the award.




MR BAKRI:  Nevertheless, we're not the moving party; we haven't made the application.  We oppose it.


VICE PRESIDENT CATANZARITI:  Yes, you oppose and put nothing else saying but the status quo should remain.  That's your proposition; if that's where you wish to rest it fine.


MR BAKRI:  Yes.  If I could now address the significant concerns and just make a quick submission about that.  The employer parties have failed to deal with the concern raised about the definition of a horticultural enterprise.  Under the proposed variation, a horticultural enterprise is referred to as an enterprise which, as an important part of its enterprise, engages in the raising of horticultural crops.  The issue we raise is what is an important part?


It's entirely unclear and your Honour, you've been given no answer.  It my submission, it's too hard for the employer parties to deal with, so they've opted not to deal with it.  The reason for this, is there is no answer to this.  We'll see whether there's an answer is proffered in reply submissions, but as matters stand, it is entirely unclear what the proposed variation - what an important part would mean.


The next matter is that in my submission, the employer parties have failed to deal with the concerns about the definition of an enterprise which is a very broad definition which refers to those engaged in a joint venture or common enterprise or related body corporate or associated entities.  I want to be very clear that it's not as simple as someone conducting a company search to work out what the coverage of the award would be.


Even if it was that simply, that's very problematic for a working person.  To determine award coverage, they'd need to go and pay a fee and conduct some form of investigation.  But it's much more than that here.  We note the following problems arise.


Firstly, it will not always be apparent that whether an entity is participating in a joint venture or not.  Private companies would not ordinarily disclose this information, are not required to disclose this information.  Secondly, a common enterprise is undefined - the term a common enterprise and inherently ambiguous.


Next, related bodies corporate.  It's defined in section 50 of the Corporations Act and includes subsidiaries and holding companies.  Insofar as a subsidiary or holding company is concerned, that can be determined by a company search, which is publicly available information if the requisite is fee is paid.  But, it can also require complex enquiries into the relevant entities including whether one entity has the capacity to control the other entity's board, holds more than half the issued share capital in a company, or can control more than half the votes at a general meeting.  It can require not only a company search, but it could require multiple searches and a review of the constitution of the company - a complex enquiry.


Associated entities are even more complicated.  This is defined in section 50AAA of the Corporations Act.  The definition of associated entities, getting to the bottom of whether entities are associated entities within the meaning of that provision, can require insight into the business, including knowledge of whether entities exercise practical control over other entities, practices and patterns or behaviour which affect the entity's financial or operating policies and whether there are qualifying investments that are material to the entity.  Very complicated concept of associated entities.


We maintain the submission that for an employee - for anyone other than the employer, so for an employee, for a registered organisation or for the regulator, for the Ombudsman to come to a view as to whether the Horticultural Award would apply, as is proposed to be amended, would involve, in many cases, involve having access to information that those persons would simply not be privy to.


I don't want to take up time unnecessarily reading through the Corporations Act, but what I will do is just refer to the provisions that we say are relevant so they can be considered in due course.  Regard should be had to the definitions in section 9 of related body corporates, subsidiary and holding company.  Section 46 which defines a subsidiary.  47 which talks about control.  Section 48 is also relevant.  49, 50, naturally 50AAA and finally 50AA.


In my submission, what the employer parties are asking for is for a coverage clause that would be a radical departure from the orthodox manner in which the coverage of an award is usually determined, which is by location.  It's noted that the employer parties have not put forward a single example of another clause in similar terms.  They're asking for something significantly different here.  In my submission, they have not - the Commission should not be satisfied that this clause is appropriate.


I'll now remove on to responding to the submissions of the employer parties.  Mr Bourke, in his submissions made numerous references to the view that we all attended in South Australia, I want to address this.  It is our submission that the Commission needs to approach you very cautiously.  It must be noted that this is an award review and an award review in which the employer parties, including Mitolo, are not seeking to vary the award just in respect of Mitolo - this couldn't be done anyway.  They're seeking to amend the coverage clause of an award that applies nationally to many different work places and in many different subsectors of the industry.


Mr Bryan Robertson, a witness that was called by the AiGroup, gave evidence about the significant differences between the work that's performed in the packing sheds, depending on the type of produce that they are working with.  We rely on that evidence given by Mr Robertson, and it's located at paragraphs 989 to 994.  Mr Robertson, in short, he explained the significant differences in the work done when handling one type of crop as opposed to another.


In these circumstances, where that's the evidence that's been given before the Commission, the view has little utility.  What has been seen in Virginia, cannot justify in any way, a variation that would have an impact on an apple farm in Victoria, or a Blueberry farm in New South Wales.  In short, the Commission must approach it's view very cautiously and be mindful that it has heard very little evidence of operations in other types of workplaces.


Turning to the Mitolo Full Bench decision.  My learned friend submitted that the Full Bench in that case did not say that the coverage clause in the Horticulture Award has a clear meaning.  In my submission, the Full Bench plainly considered the clause in detail and arrived at the view that it did have a clear meaning.  The Full Bench didn't need to expressly say the words "it does not have an ambiguity" or "it has a plain meaning".  Reading the reasons fairly, it is apparent that that Full Bench had the view that the clause had a plain meaning.


Mr Bourke also submitted that the fact that the Full Bench in that case looked outside of the words "shows an ambiguity".  This does not withstand scrutiny.  It's well established principle that when interpreting an award, regard can be had to extrinsic material in considering whether an award has a plain meaning of an ambiguity exists.  Just because they looked at the decision that created the award, does not indicate, in and of itself, that the Full Bench had the view that there was no plain meaning.  There's no such thing at all.


In support of this proposition that the regard that can be had to the extrinsic material, we rely on the very recent Full Bench decision in the AMWU v Berry (2017) FWCFB 3005 @ 114 which updated the Golden Cockrel principles.  In summary, it just doesn't flow that because they looked at the award modern decision that this establishes an ambiguity.


My learned friend also referred to the words in clause 4.2(a) of the Award.  Mr Bourke read some of the words from the clause, but in my submission, significantly, he did not read the following words, which are "upon farm orchards and/or plantations."  In my submission, these are the key words in the clause which make the meaning of the clause clear.  This is what the Full Bench found in the Mitolo appeal.


At paragraph 3 of the written outline, the Mitolo parties submit that the dividing line between the Horticulture Award and the Storage Services and Wholesale Award, as the physical farm gate, has emerged, and I quote - "Apparently at the urging of the NUW".  This submission that the current dividing line was created by the NUW, is entirely divorced from reality.  It fails to acknowledge and accept that the Full Bench which created the Horticulture Award set the dividing line as the farm gate.


In support of this, we rely on the award modernisation decision itself, at paragraph 53.  The Full Bench's decision in the Mitolo appeal at 46 in which the Full Bench concluded that work location was intended to be a critical element in the coverage of the award and the words, the plain meaning of the words in clause 4.2(a) themselves "Upon farms, orchards and/or plantations".


In light of the guidance provided by the preliminary jurisdictional decision, and affirmed in the penalty rates case, the Commission should adopt the interpretation that has been previously given by these previous Full Benches about the coverage of the Horticulture Award, unless there are cogent reasons for not doing so.  We submit that there are no such reasons apparent here.


At paragraph 6, the Mitolo parties submit that unless the award variation is granted, a ripe area of disputation will remain.  In our submission, this should be rejected.  The Full Bench in the Mitolo appeal determined the issue of coverage.  If employers have chosen to not act consistently with that determination, that simply does not favour - it's not a fact that favours granting the variation.


Employers have engaged in conduct at the risk of facing litigation.  Surely they cannot support - - -


VICE PRESIDENT CATANZARITI:  The Full Bench in Mitolo at paragraph 59 clearly has invited the four yearly review to revisit the issue of coverage.


MR BAKRI:  Yes, not in a retrospective sense, in a prospective sense.




If any party considers that the coverage or other provisions of the two awards are such that the modern awards objective in section 134 of the Fair Work Act has not been met, the current view provides an opportunity.


That's what we're doing here.  One party is asserting that the issue of coverage is a live issue and the award objectives are not being met.  That's the argument that we're going to be determining and that's consistent - we're not being inconsistent with the Full Bench decision Mr Bakri.


MR BAKRI:  That's right, but what's submitted, your Honour, is that - - -


VICE PRESIDENT CATANZARITI:  Your argument appears to be that there is nothing to do, right?


MR BAKRI:  That's not my submission, at all, your Honour.  My submission is that the clause has a clear meaning that there is no area of disputation as to - no real disputation as to what the clause means.  We say that the ambiguity - - -


VICE PRESIDENT CATANZARITI:  That's not the way this is put.  This is put that if any party considers the coverage or other provisions of the two awards, as such, that the modern award's objective - that's the argument in front of us.  That if the modern award's objective is not being met, then the review of this Full Bench can then deal with the matter.  That's the way the case is being run before us.  It's not inconsistent with that point.


MR BAKRI:  There are two applications before you.


VICE PRESIDENT CATANZARITI:  Yes, but I'm talking about one of the points is that point.


MR BAKRI:  Yes, and perhaps my point relates more to the other application, arguing that there is an ambiguity and an uncertainty.  In my submission, there simply is not.  A Full Bench has determined the meaning of the clause and it's put that there's this area of disputation and it's unclear and it's even ambitiously submitted that because employers have decided not to heed the Full Bench's ruling that that militates in favour of finding an uncertainty and also finding that any variation should be granted retrospectively.


I accept, your Honour, that with the four yearly review application, that there is a job to do here to consider whether the award is currently meeting the objective.  I'll move on to the next submission.


VICE PRESIDENT CATANZARITI:  How do you explain the Zerella situation, when there's meeting the current award modern objective?


MR BAKRI:  The Zerella?




MR BAKRI:  If I can address the question in this way, it's put against us that there is no industrial logic or merit in the current coverage clause.  We submit that that submission should be rejected.


VICE PRESIDENT CATANZARITI:  On one view the NUW should be arguing that what happened in Zerella should be covered by the NUW.


MR BAKRI:  Well that application is not before you.


VICE PRESIDENT CATANZARITI:  No, but we live in the real world, and the Bench had had the opportunity of a view of seeing the two sites, Mr Bakri.  I'm trying to understand why the NUW would say that Zerella is different.


MR BAKRI:  Zerella is different because the award as it currently stands, provides that if there are potatoes planted on that property, then that's where the dividing line is; they're within the Horticulture Award.  But we say that there is industrial merit in the coverage clause as it presently stands, and we make the following submissions in support of this.


Firstly, as a matter of principles to be applied here, it needs to be accepted that the prima facie position is that the award in its current terms meets the modern award's objective.  This is clear from the preliminary jurisdiction decision.  If it meets the modern awards objective, that means that it's currently fair and relevant. It falls to the employer parties to convince you otherwise.


In our submission they have not - - -


VICE PRESIDENT CATANZARITI:  Sorry, that's submission is not correct.  It falls to any party.  I have seven other award modernisation Mr Bakri, and I can tell you that unions have raised the modern award doesn't meet the modern objective.  It's not actually inter partes matter.  Anybody can raise the points; it's not an employer argument.  That's not what the Full Bench is saying in those principles.


MR BAKRI:  Well, your Honour, putting that to one side, the Commission needs to form the view that it doesn't meet the modern awards objective.


VICE PRESIDENT CATANZARITI:  But that's the right test, Mr Bakri.


MR BAKRI:  Yes, and there is, in my submission, insufficient evidence to persuade the Commission to grant the change as it's sought.  Again, we rely on the evidence of Mr Bryan Robertson, which I referred to earlier, which makes it abundantly clear that the work performed in different enterprises varies greatly.


Aside from this, it's contended that the existing coverage arrangement has industrial merit for the following reasons.  Firstly, if the packing and processing work is performed on a farm, it is more likely that those who work on - who perform this work, may also work in the fields.  This is supported by the evidence and we refer to paragraph 851 where Mr White, the Manager from Zerella, explained the situation at the other enterprise further north, in a more remote location at Parilla.


He explained in that location it was more common for those workers to work both in the fields and in the sheds, to use that expression.  There is obvious logic, that in situations where workers work in the fields and in the farms, the same instrument should apply because otherwise it would create all sorts of - it could create some difficulties and complexity.


DEPUTY PRESIDENT SAMS:  But isn't that what happens at Zerella?


MR BAKRI:  Well, my submission is - - -


DEPUTY PRESIDENT SAMS:  I thought we were told that's exactly what happens.


MR BAKRI:  The evidence was that it happens occasionally, and it was in relation to a discrete number of people in limited circumstances.  Mr White's evidence was that it's common place at the Zerella workplace.  My submission is that that is part of the logic here, that you need to have the dividing line somewhere, and having it at the physical farm gate, is logical because at times, if the shed is located on - - -


VICE PRESIDENT CATANZARITI:  Mr White's evidence was that the Zerella site is different is because it's too far away to actually have the central packing at the current Zerella site.  He explained that had the sites been approximate, they wouldn't be having a separate packing facility.


MR BAKRI:  Yes, but the fact of the matter is that there you have a packing shed on a farm where the workers are working in both locations and my submission is that that is the explanation here.


VICE PRESIDENT CATANZARITI:  You've got Gayndah packers' evidence that talks about the fact that these cooperatives have been operating a particular way.  They grow the product and it's more efficient to then take the product to one place, but they're all still farmers and it's pre the work before it actually goes to the retailers.  How do you deal with the Gayndah packers' situation?


MR BAKRI:  In relation to the Gayndah packers, it's not apparent how Gayndah packers - the terms of the variation would even come within that frame.


VICE PRESIDENT CATANZARITI:  They'd certainly come within, on one view, the first part of the definition of enterprise.


MR BAKRI:  Your Honour, the next thing we wish to submit.


VICE PRESIDENT CATANZARITI:  Look, are you going answer my question Mr Bakri?  How are you going to deal with Gayndah packers' evidence?


MR BAKRI:  I'll come back to Gayndah packers if that's okay, your Honour.


The next submission we wish to put forward is that if the packing and processing work is performed a distance from the farm, it's more likely to be different from the work that's performed on the farm in the fields, and more akin to work that's performed at other facilities that perform packing and processing work in relation to things other than horticultural produce.  In support of this, we rely on the following.


Firstly, the evidence of Ms Colquhoun in, I believe, her third statement, the statement dated 3 July which establishes that the packing and processing work that's performed at the facility that's located in the western suburbs of Sydney, at Eastern Creek, is very different to the work performed in Virginia.  Ms Colquhoun, in that statement, explains that generally the produce that goes to Eastern Creek, firstly goes to another site for preliminary work and then is sent to Eastern Creek.  That work, we say, is much more akin to other packing and processing work done under the Storage Services Award.


We also rely on the evidence given by Ms Dunne in relation to Costa Logistics.  Ms Dunne's statement at paragraphs 18 to 20, in my submission, establishes that that employer deals primarily with fresh produce and is conducting a warehousing and distribution enterprise.


The submission we seek to make is that the dividing line, being at the farm gate means that enterprises such as Costa Logistics in Eastern Creek, are appropriately covered by the Storage Services Award.  There might be extreme examples such as Zerella and the Angle Vale Road facility which are relied on to suggest the arbitrary nature of the dividing line.  But there is a real solid basis to there being this dividing line to ensure that enterprises such as Costa Logistics and others are not covered by the Horticulture Award.


COMMISSIONER SAUNDERS:  Mr Bakri, the Horticulture Award covers the horticultural industry and so what we're really focussed on in many ways in this case, what is the horticultural industry and how should it be defined.  Clearly a packing shed on a farm is in the horticultural industry, everybody accepts that.  Why is a packing shed across the road from the farm not in the same industry?


MR BAKRI:  Because, as I submitted, the dividing line between those two awards needs to be drawn somewhere and the physical farm gate is the most logical and - - -


COMMISSIONER SAUNDERS:  In a modern economy when you've got - you just don't have mum and dad farms, you have farms of all different sizes and larger operators within the industry with different plots of land.  It's obviously completely inefficient to have a packing shed on every farm.  In a modern economy of that kind, why isn't a packing shed across the road from a farm, part of the horticultural industry?


MR BAKRI:  In that scenario, where it's across the road, even though it's just across the road, within proximity, the primary purpose of the work done at that site is different to what's done on the farm.  That site, that has the packing facility is preparing, packing, sometimes storing for different amounts of time and distributing produce, not growing it.


COMMISSIONER SAUNDERS:  In my hypothetical example, the produce or the packing facility across the road from the farm, is exactly the same as the packing facility on the farm, and so the work and the purpose for the work is the same, isn't it?


MR BAKRI:  Yes, if you're comparing the two packing sheds, that is so, that is so.  But as I submitted previously, if a packing shed is on a farm, there would be more likelihood that those workers would also work in the field, so that is part of the rationale as well.


The next submission that we make in support of - - -


DEPUTY PRESIDENT SAMS:  Mr Bakri, you're talking about a physical farm gate, well, I didn't see any physical farm gate that was seen to be the barrier or the cross-over point.


MR BAKRI:  Yes, Deputy President, the reference to physical farm gate is a reference to the property.


DEPUTY PRESIDENT SAMS:  Well, it's a concept, isn't it?


MR BAKRI:  That is not the way - that is the subjective evidence of many of the witnesses.  The evidence is the subjective views of many of the employer's witnesses.  What is important here, is what the Full Bench that created the award, what they meant by referring to the term farm gate.  We've got the Full Bench in the Mitolo appeal who have clearly understood the farm gate to be referring to a physical concept; not necessarily a gate as such.


DEPUTY PRESIDENT SAMS:  There could be dozens of gates on a farm, letting trucks in, cars in, taking produce out.  Which one is it?


MR BAKRI:  It's not referring to a gate per se; it's referring to a property.


DEPUTY PRESIDENT SAMS:  I think it only demonstrates that it must be a concept.


MR BAKRI:  Your Honour, in my submission, the meaning that was ascribed to the term farm gate, by the Full Bench is clear.  The Mitolo appeal Full Bench got that right when they considered that.


The next submission we make is that there is industrial merit in packing and processing facilities located away from the farm, being covered by the Storage Services Award for the reason that being located away from the farm, can often provide various benefits to the employer which justify higher wages being paid.  In support of this, we rely on the evidence of Mr Bryan Robertson at paragraph 983.


Mr Bourke referred to the use of the dividing line being determined by the farm gate and the physical location as a blunt instrument.  I don't stand here and say that it's a perfect way to determine coverage.  Nothing is perfect in the industrial world.  But in my submission, it's the only practical and workable way to draw the dividing line; that is by location.  The coverage provisions sought by the employer parties would create a whole host of other problems with uncertainty and they're totally unworkable for the reasons I've already outlined.


It must be noted that if the proposed variation is granted, that it's going to have an impact much broader than the properties that we saw in Virginia.  It's going to effect, packing, storage and distribution facilities outside of agricultural areas.  Again, we refer to Eastern Creek and Select Harvest, which is referred to in the statement of Ms Dunne.  That's a real concern that those rates that are applicable on farms will suddenly be applicable in the western suburbs of Sydney or in the northern suburbs of Melbourne.


In paragraph 31, the Mitolo parties refer to various scenarios in trying to establish that the current coverage regime is problematic.  On the evidence, these various scenarios are entirely hypothetical and not issues which the Commission should accept arise.  Accordingly, little regard should be had to these scenarios.  In our submission, an assessment of the nature of the work location is a much simpler exercise than determining the nature of the enterprise that performs the work via an assessment of complex ideas such as related body corporate associated entities, joint ventures and common enterprises.


Currently, award coverage can be determined, based on a simple assessment of whether the work location is an agricultural holding farm, orchard and/or plantation, based on the meaning of those terms.  It's a much more workable scenario, than what is proposed.  In support of this, we again refer to the Mitolo Full Bench decision which sets out the ordinary meaning of agricultural holding and farms at paragraphs 51 and 54.  I won't necessarily go to those parts of the decision, but we say they persuasively set out what those terms are intended to mean.


VICE PRESIDENT CATANZARITI:  You've certainly elevated the Full Bench decision as being something that did a deep dive into all of these factual matters which, on my reading of the decision and also noting how long the case took, was not done in that sort of deep dive fashion, Mr Bakri.  Here, we've got the opportunity of a deep dive, which is what a modern award review is.


MR BAKRI:  Yes, your Honour, in my submission, regard - - -


VICE PRESIDENT CATANZARITI:  And of course, there (indistinct) does not apply to us on a modern award review or in any other decision of the Full Bench.


MR BAKRI:  Well, it doesn't apply per se, but the principles provide that regard needs to be had to these decisions whilst - - -


VICE PRESIDENT CATANZARITI:  As I said to you a number of times, we're having regard to the decision, the Full Bench has actually invited us to do a modern award review, and that's what we're doing.  But if your proposition is that we're bound and can't do our own job on the modern award review, I find that difficult.


MR BAKRI:  I haven't made that submission, your Honour, to be clear.  My submission is that adequate regard needs to be had to that decision, and you should follow it.  You should act consistently with that as to the current award coverage, in determining current award coverage, unless there are cogent reasons for you to depart from that view.


A difficulty here is that because there are two applications, the submissions that have been made deal with both applications at the same time in some instances, and that creates some difficulties.  But in my submission, in determining - discussing now solely the award review application, the preliminary step to determine the application is coming to a view, this Full Bench coming to a view as to the coverage of the award.


You can't properly decide whether variations are warranted to meet the modern award's objective, unless you first come to a view of well, what is the current coverage.  In relation to that question, it's our submission that the Full Bench in the Mitolo appeal dealt with that question; dealt with it correctly.  There is no basis, no cogent reasons to come to a different view.


At paragraph 77 the Mitolo parties seek to distinguish between quality control and grading.  Our submission is that this distinction should not be accepted and we rely on the evidence of Bryan Robertson at paragraph number 1003.  I turn to the criteria, or the factors rather, in section 134(1).  At paragraph 97, the Mitolo parties address section 134(1)(a) and that is that the relative living standards and the needs of the low paid.


The Mitolo parties submit that the rates in the Storage Services and Wholesale Award are in some respects, higher than the base rates under the Horticulture Award and that this can't give any rise to any suggestion that the rates set by the Horticulture Award do not meet the objective.


We join issue with this submission for two reasons.  Firstly, the submission does not fairly characterise the difference in rates between the two awards.  The wages and conditions in the Storage Services and Wholesale Award are vastly superior.  That is the only view that's open.  I'm not going to waste time going through figures, but I ask the Full Bench to look at Schedule 1 to our submissions in due course.


Secondly, the question that the Commission must consider is not whether the rates in the Horticulture Award meet the modern award's objective in relation to the living standards and needs of the low paid in the abstract.  What the Commission needs to do is consider whether the proposed varied award, or the award as it's proposed to be varied, would meet the modern award's objective in relation to the living standards and the needs of the low paid, specifically in relation to those employees that will be impacted by the change.


That is, those employees that are currently covered by the Storage Services and Wholesale Award, but will face a drastic wage cut should the coverage clause of the Horticulture Award be changed.  That is the question that needs to be determined when considering section 134(1)(a).  In my submission, the employer parties don't appropriately deal with this factor.  That's because they don't have an adequate answer to the fact that there's going to be a significant reduction in wages to these employees.


The fact of the matter is, that the NUW's submission is sound.  Granting the variation will result in the reduction of the award safety net for the group of relevant workers.  Given that this is so, for the employer parties to succeed, they will need to establish a compelling case in favour of the proposed variation, and we say they have not done this.


At paragraph 98, the Mitolo parties address the factor in section 134(1)(b), which is the need to encourage collective bargaining.  They submit that there is currently in the horticulture industry a stand-off.  In my submission, the evidence establishes no such thing.  In relation to Mitolo, we accept the evidence does establish that bargaining is at an impasse of sorts.  The evidence establishes that Mitolo, a single employer doesn't want to bargain with the Storage Services and Wholesale Award as the relevant safety net.  Its preference is to bargain with a lower safety net being the Horticulture Award.


This falls well short of establishing that across the industry, there's an impasse, or a stand-off, is the term used.  Aside from Mitolo, there's evidence of other workplaces in the sector in which enterprise agreements have been struck which have the Storage Services and Wholesale Award as a safety net.  I just want to refer to these quickly.  They are the Geoffrey Thompson Enterprise Agreement.  You'll see this referred to in the witness statement of Mr George Robertson, the (indistinct) organiser dated 21 April at paragraph 18.


There's also the Costa Logistics Enterprise Agreement, which is referred to in the witness statement of Ms Dunne dated 1 August.  We note that it's apparent on the fact of this agreement that the Storage Services and Wholesale Award is the underpinning award and we say this, based on the approval decision which refers to the storage services industry as being the applicable award.


Finally, we refer to the Select Harvest 2015 agreement which is also referred to in the statement of Ms Dunne.  The agreement at clause 7, states that the parent award is the Storage Services and Wholesale Award.


On the basis of these agreements, the NUW submits that if the change is granted, it will discourage bargaining in relation to these particular enterprises.  We don't accept that there's a stand-off and the evidence is much more equivocal.


At paragraph 115 the Mitolo parties submit that section 134(1)(e) which is the principle of equal remuneration for work of equal or compatible value, supports the variation sought.  This is totally misguided and it's not a submission that's open.  Section 134(1)(e) has no relevant whatsoever to the application they made.  Equal remuneration for work of equal or compatible value, is a defined term.  Section 12 refers to section 3022 and section 3022 provides that equal remuneration for work of equal or comparable value, means equal remuneration for men and women workers for work of equal or comparable value.  It's got no relevance whatsoever, so it's a neutral consideration in this matter.


The next submission we make is that there is no basis to conclude that - no, I'll withdraw that.  In relation to the question of flexibility and whether these changes are required due to the need for increased flexibility, we make the following point.  There is no evidence that the employer parties are unable to currently do anything in their workplaces that they need to do.  The evidence is that under the Storage Services and Wholesale Award, having certain shifts would cost more money.  But what the employers have failed to do, is to adduce sufficient evidence to show that there is a need in their businesses to reduce cost or that it's having an impact on the viability of those enterprises.  There is no such evidence.


The final submission I want to make is in relation to the contention that if the ambiguity application is accepted, that the variation should be retrospective.  We oppose such an order; we oppose the application in its entirety, but in the event that the Commission is with the employer parties and accepts there is an ambiguity and it warrants a variation, it should not be made retrospective.


We have here a fairly unique situation in which the Full Bench in the Mitolo appeal, clearly determined the coverage of the Horticulture Award.  The key employer organisations, including the AiGroup were involved in the proceedings.  If employers chose to ignore that decision, and not pay according to the Storage Services and Wholesale Award, then that's a very good reason not to grant a retrospective variation in the circumstances of this case.


Unless there's anything that I can assist.


DEPUTY PRESIDENT SAMS:  Well, putting aside the Mitolo decision about your argument about retrospectivity, I know you cannot give undertakings on behalf of everybody employed, but are the NUW prepared to give an undertaking that they will neither support or encourage historic under-payment claims of their members?


MR BAKRI:  I'd need to take instructions on that.


DEPUTY PRESIDENT SAMS:  Because it was Mr Bourke's submission that there would be businesses closing down if they were faced with millions of dollars' worth of claims.


MR BAKRI:  I can take instructions on that, if it would assist the Commission, but my submission is that there is insufficient evidence to accept such a proposition.


DEPUTY PRESIDENT SAMS:  In any event, why haven't you been doing it over the last number of years?  That is, making under-payment claims.  You've done one, or attempted to do one.


MR BAKRI:  There is evidence about - submission has been made about one.  The Commission does not know, does not have the information before it, about whether other - particularly, I do not have instructions that there are other claims, that have been made asserting that the Storage Services and Wholesale Award applies by the NUW.


DEPUTY PRESIDENT SAMS:  I assume you would have researched that.


MR BAKRI:  The Commission does not know whether there have been other proceedings that have been run by employees.  It does not know whether the Fair Work Ombudsman has been enforcing the Storage Services and Wholesale Award, either through court proceedings or through more informal means.


COMMISSIONER SAUNDERS:  We've got the National Farmers Federation here and the AiGroup.  Surely, we would have heard about it had those cases been on foot.


MR BAKRI:  Perhaps, if the employers are members of these organisations.  The point I make is that just because the Commission doesn't have evidence before it of a lot of under-payment claims, doesn't mean that there have not been under-payment claims.


DEPUTY PRESIDENT SAMS:  That's not what I asked you.  I asked you whether your organisation, the organisation you represent would give a guarantee not to pursue historic under-payment claims.


MR BAKRI:  I can seek instructions.  Deputy President, I can't give an undertaking without instructions.  I'm more than happy to speak - - -


DEPUTY PRESIDENT SAMS:  I understand that entirely Mr Bakri and I'm not asking you to give such an undertaking now.


MR BAKRI:  Thank you.


VICE PRESIDENT CATANZARITI:  But you'll seek instructions on it and correspond with the Bench.


MR BAKRI:  Thank you, your Honour.




MR BOURKE:  Thank you.  We said at the outset in our closings that the unions have been on denial, they've been refusing to recognise there's a problem and that it needs fixing, and that's been confirmed in the closings.  We saw clear as day in relation to the AWU, they were asked two key questions from the Bench and they did not answer them.


The first was, the issue of coverage if the physical farm gate applies in relation to Zerella.  The question was not answered.  The only response was, that's an extreme example; of course it was not.  It wasn't something we looked all over Australia for, it was next door, one kilometre down the road.  It's not an extreme example.  It can be the exact situation that can be replicated by planting a couple of potatoes.


But at the moment the sector is not playing that game.  They are considering that the virtual farm gate is the appropriate test and that's how the unions have done nothing in relation to that.


The second point that makes it import that Zerella, and why it's not an extreme example, is that it resulted in an enterprise agreement of the NUW where they confirmed that but for the boot test, it was the Horticulture Award, it was approved by the Commission and guess what, the NUW put their name to that agreement where they set out the classifications in the enterprise agreement, virtually word for word out of the Horticulture Award.


Exact work done in the that plant, the unions considered that the classifications in the Horticulture Award were the best fit, not the Storage and Warehouse Award, but somehow we do that exact same work across the road and apparently, it's the Storage and Warehouse Award.


What flows from that is the inability of the AWU, and we say also the NUW, to answer that question, demonstrates ambiguity.  If they can with a straight face say the current coverage is not ambiguous, why can't they ask what was a simple question?  Let alone, we set out various other scenarios in paragraph 31 of our closing, how the physical farm gate is virtually impossible to apply in practice and neither union chose to respond to that in their closing.


Can I say something, particularly the NUW, they hang their hat on the Mitolo appeal?  In in our respectful submission, where the Mitolo appeal was grappling with which should be the applicable award for Mitolo, they made a fundamental mistake, which they failed to recognise, the Storage and Warehouse Award was the default award.  By failing to recognise that, and saying the best step was the storage and warehouse, your analysis is flawed.


I'll say one other thing, one other thing about the Mitolo appeal, it's been suggested by the NUW, well when we read out clause 4.2, we dodged a particular part.  The AWU also emphasised the expression of "upon farms".  At tab 11 of our exhibit one, the opening folder where you have the clause, 4.2 talks about agricultural holdings which we say we fit in, whether you're across the road or not across the road, in connection with various activities and that says, "including fruit and vegetables upon farms".


The Mitolo appeal, with respect, the Full Bench used that "including fruit and vegetables upon farms", we used the expression you're intending generally to expand or make clear that that second part of the sentence will apply to the first part.  But what Mitolo appeal did, they used that part where it said 'including' to read down the broader aspect of agricultural holdings in connection with.  No explanation how they got there with that type of analysis.  That is contrary to principles of drafting and the use of that word.


The second question avoided by the AWU was the question on 134(1)(e), remuneration of equal work for equal value.  They dodged the question, they never answered it and we've got a fundamental problem at the moment because on the union's construction exactly the same work at Zerella and Mitolo, different award regimes.  In fact, AWU have never addressed 134 ever.  One objective is breathtaking.  We heard an answer for the first time from the NUW, saying that that provision is all about fair rates between men and women and you can't read those words and get to that solution.


We then had an attempt by the NUW to deal with the dichotomy of treatment of Zerella and Mitolo, and what we did we get?  Some type of answer that maybe it's more likely that at Zerella, people will do other type of work like on the land, harvesting or I assume sowing of crops.  There's no basis to say that.


But two, if the whole purpose behind the Horticulture Award, is you had to do sowing or harvesting type work, not just grading or washing type work, the award would have said so - it doesn't.  It doesn't say that if you do grading you have to do some other type of work where you're actually handling the soil by way of harvesting or sowing.  That whole submission completely falls to the ground.


Then we had the NUW also dodging question.  My learned friend was asked about what's your answer to Gayndah packers - I'll come back to that.  Never came back.  They've never come to grips, this is a review.  They've come here just saying, just leave it.  We can't explain how it works; we can't explain why the physical gate - no industrial logic has been brought forward, but just leave it.  I know it's a review, but don't do anything.


Then my learned friend - the NUW is asked why the different treatment if the packing shed is across the road.  Again, no answer.  Then asked a basic question by Sams DP, where is the gate?  We find out that it's not a gate and we find out it's not a gate, it's a property.  So it is a concept.  They can't even tell us with confidence what the physical gate is, but apparently the Mitolo appeal has clarified everything.  You read the Mitolo appeal, you can't - it doesn't give you an answer to all the problems we identified in paragraph 31 of our closing.


The AWU then made a submission - location.  Why not have location as the dividing line, because that's been done in the past.  Has that got anything to do with modern award regimes and the objectives that you just look what's been done in the past.  Some awards, you do focus on location, possibly for their own historical reasons, for example, building and construction sites where it's clear.  But this is meant to be an industry award, not a location driven award.


We've heard no justification why it should be driven by whatever the physical farm gate means, but they say because it's been done in other awards, you know that's the way you deal with it.  Then it reminds me, sometimes if you go bush walking you'll see a track and it might be because some cattle have followed along that track and it makes a little bit of a track, you can see it.  But does that mean you follow it if that's not exactly where you want to go?  They haven't asked, where do you want to go?  You want to go to 134 objectives.  Well, how do they meet it?  We're not told.


One word we still haven't heard of is flexibility.  There doesn't seem to be any dispute that that was a fundamental objective to generate flexibility within the horticulture sector, but we've heard no explanation why you get an outcome consistent with flexibility, if coverage operates with the inflexible concept of the physical farm gate.  How does that intersect with the objectives?  We're not told.


We're then told, look some facilities, because they generate efficiencies because of their location, they've got the capacity to pay higher wages.  How does that fit in with the objectives?  Is that the way this is meant to play out, that if you choose a more efficient way to do business, you should have to pay the higher rates of a particular award?  You don't get that from 134.


Then there's this submission, we have to prove that someone's going to go out of business before there's a change.  Again, you won't find that in 134. But of course, the agricultural sector is a dynamic sector.  It might be going okay at the moment, but it's going to be affected by international pressures, domestic pressures.  There will be times where people are under the pump and they'll need to choose the most effective way to do business, to be competitive, but if they pay the price in terms of having to meet higher rates, greater inflexibility, in terms of the way they can structure their business, they will put at risk their business.  That is not the test, but the end result of that is that if you want to choose the most efficient way to do business, you should have to pay the cost of that.


There's then a criticism of our variation and we made this point, but it stands out in particularly a review process.  My learned friend said it's fatal, our case is fatally flawed because the variation doesn't work.  If it was so fatal, why didn't they make the criticisms in their opening submissions.  Neither the AWU or the NUW said boo in relation to our drafting because it's rock solid, rock solid.  They couldn't fault it.  They now realise well we haven't really made out our case, and so they start making criticisms in closing.


If there were so many things that were fatally flawed, those things could also be tested in the evidence, they could be tested with the witnesses.  We haven't seen that because they haven't played it out.  If it's going to make it so difficult to do a company search whatever, they could lead evidence on that, but they haven't.  The AWU, their main criticism, is we have the use of the expression 'important path'.  They say it's novel; it's not.  As we've set out, and my learned friend says they've got no answer to that.  We've set it out in 167 to 182 of our opening.


Where that expression has been used in the Fair Work Act, section 424, legislature considers it's a workable term.  It's being used in the Workplace Relations Act section 170(mw).  You've got the jurisprudence around that.  What's wrong with using the exact term that's been used for decades in industrial legislation?  That's not to mean questions of characterisation sometimes aren't easy; sometimes they aren't easy.  But that doesn't mean that you don't seek to ensure that the sector is properly covered by the correct award and at the end of the day, in assessing whether an entity sits within the correct sector or not, well the Commission uses a practical approach, a common sense approach and that's across the board with all awards.


Also, the complaint is, we had used the expression 'enterprise'.  We had, we've talked about the enterprise being a business activity, project or undertaking.  Surprise, surprise, that's straight out of section 12.  The Fair Work Act uses the expression enterprise, and why does it do that?  Because in modern industrial setting, sometimes where someone sits in a business, you don't simply look at the actual employer, you look at where they sit within an enterprise and the Fair Work Act is comfortable with using the expression 'enterprise'.


We've lifted the definition out of section 12 and that's because in a modern agricultural sector you just don't have the mum and dad farm any longer.  One person, partnership and even a mum and dad farm, you're now going to have trusts et cetera.  We have used that so you have a reality picture of where the employer sits within the enterprise, in making an assessment where they sit within the horticulture industry or not.  No difficulty.


But can we say this, my learned friend for the NUW is going, we shouldn't - and gives the example of a worker.  That a worker has got to work out where they're under one award or not.  But how does a worker work out whether they're under the horticulture or the storage and wholesale award right now, if the physical farm gate is the test?  Is a worker able to work out while they're working at Zerella they're under the Horticulture Award?  They decide to go up to Mitolo because they have a falling out with Paul White.  They think Frank Mitolo is a good guy and they have to work out that they're now under the Storage and Warehouse Award.  No, they're not.


When my learned friend says it's not even a farm gate, it's a property, so they're going to have to do a property search.  What happens if they find Zerella, the land is not owned by Zerella, but some related corporate entity.  The facilities are run by another corporate entity.  Do they have to work that out in working out the physical farm gate?  These issues don't go away.  We've tried to grapple with them; they haven't.  We've used the term recognised within the Act, enterprise, as the best guiding line.  Consistent with denial, they've said the physical farm gate is discussed in the Mitolo appeal answers everything, and it doesn't.


We then had this submission relative living standards being met of the low paid, as part of our criteria.  This another example.  Although there is a review, it doesn't come to the party and try and assist any of these questions.  They say you have to prove all this.  We have to somehow prove - although you don't get it from the - that every person that may, as a result, possibly shift from storage and warehouse over to horticulture, their needs are dealt with.  Well, the objectives are approached in a broad common sense way, we'd be here all year trying to prove that every single person would be covered.  But that's not what the provision is about.


The truth of the matter is, there's been no suggestion that anyone that might be under the Storage and Warehouse Award has some type of special needs that people in the horticulture sector don't have.  There's been no suggestion that people at Zerella have greater needs in terms of their living standards than people at Mitolo.  They don't; they don't.  Or vice versa.  It's a complete false ploy to suggest somehow we've got to prove all this.  We come back to the principle, yes you start the prima facie position that the first modern award of horticulture sector met that requirement and there's no reason to say it doesn't continue to meet that requirement.


There's no submission that the rates in the Horticulture Award are completely out of step with other awards.  They've only compared it with the storage award and said they're better.  We had a submission from the AWU - don't do anything.  Don't make any change because there could be unintended consequences.  Try to put the frighteners on the Bench.  Can you help, this is a review, what did they identify?  Nothing.  Nothing.  We won't tell you what they are, no unknowns - not even known unknowns.  Unknown unknowns. That was the whole point of why we had evidence, why we had submissions, that there are some consequences that should be known to the Bench.  They can be told, they can be tested, but instead we just get that assertion in closing.  That demonstrates itself.  They have not been able to demonstrate any meaningful down side why these clarifications should not be made so people who are truly in the horticulture sector are covered by the Horticulture Award and not the Storage and Warehouse Award.


We then had the retrospectivity point raised by the NUW and they say look, if you haven't followed the Mitolo appeal - your fault.  Is this how this is all going to play out?  Where let's assume we do get the variation and then the NUW or somebody else launches all these back pay claims and people are thinking, I thought this was all sorted out.  We got the variation we required.  No, it hasn't been made retrospective and we're in the Full Federal Court and the litigation is going to go on; it's going to be devastating for the sector and as we said, even if they don't launch something, there's always going to be the threat whether an undertaking has come from the NUW or not or AWU or somebody else.


The fact of the matter is, there has been a status quo.  It might be a tense stand-off, but the sector has operated on the basis there is a virtual farm gate to the extent Mitolo appeal has said physical farm gate, they've not spelt it out and it's not binding on the way of construction.  The union, the NUW, the AWU doesn't seem to have ever said anything.  NUW has said no, it's a physical farm gate but won't explain what it means, and it's just been left at that.  That's gone on for seven and a half years on a DMZ zone and now they say well we can declare the war breaks out even if we lose this application because if it's not made retrospective.  The risk is there will be a war.  That should be put to bed for the sake of the sector.


This is not just about well it serves you right, you know, if we successfully prove you owe people money, ha ha ha.  Some of those workers may get more money in their pocket, but what about the workers that lose their jobs because businesses go broke, either defending a case and litigation is not cheap.  Or if they are successful, six years given the statute of limitations, of back pay.  It will kill businesses and kill people's jobs, in circumstances where everyone has lived with that regime.  The only moment we've seen anything different was the Rout application and my learned friend says, you should have followed the Mitolo appeal.


They didn't back the Mitolo appeal.  When we said we're taking this to the Federal Court, we're going to seek a declaration under the Horticulture Award.  If they backed the Mitolo appeal as rock solid, they could have gone to the Federal Court, we've got the Mitolo appeal.  No, they backed out within two days.  That's the reality.  They made that bed.  The sectors operate on that basis, that's why retrospectivity is critical or this will not go away.


We are the wise, adopt the written and oral closings of AiG, NFF and Gayndah packers.  If the Commission please.


MR SMITH:  If I could just make a couple of brief points.  In response to the union's submissions about the issues of ambiguity and uncertainty, I'd just like to focus briefly on the words of 4.2(a) and these submissions might make more sense if the Bench has those words in front of you.  Because the point I want to make is that even in the union's own submissions, they point out a number of different competing constructions of the very same paragraph.


Clause 4.2(a) of the Horticulture Award is the one that we've spent most of our time talking about.  But if you look at the words, clearly there are different concepts there.  There is the first bit of the paragraph and a copy of this was in the Mitolo materials in the folder that was handed up for the opening submissions.


The first bit of the paragraph has the words "agricultural holdings, flower or vegetable market garden".  That is one concept if you like.  There is a second part of that wording in connection with the "sowing, planting, raising, cultivating" et cetera or treating of horticultural crops.  There's the second concept, if you like.  There's then wording at the end that talks about "including fruit and vegetables upon farms, orchards and/or plantations".  There's at least three different sets of words in there.


If you look at the AWU's submissions, as an example, the first construction of that, or one of the constructions they refer to is Hamberger SDP's interpretation.  Paragraph 24 of the AWU's submission, his Honour says:


The reference to upon farms, orchards and plantations should be regarded as qualifying all of the activities listed in the preceding paragraph.


In our submission, that interpretation really strains the wording, because that would mean that, for example, a flower garden would need to be an orchard a plantation or a form.  It's certainly not an orchard or a plantation and it would require a broad interpretation of a farm which is what we argued on behalf of Mitolo in the appeal, that a farm is a broad concept.  The Bench rejected our arguments on that, which I'll come to in a moment.  Hamberger SDP's construction is one construction of the paragraph.


We then go to the AWU's submission at paragraph 9 where they point out a completely inconsistent interpretation of the same words.  This is the wording in paragraph 45 of the Full Bench Mitolo decision.  The relevant words there are:


We accept Mitolo's submission that 'including' is a word of extension, so to the extent that a relevant location cannot be characterised as an agricultural holding or a flower or vegetable market garden, the location will nonetheless fall within the industry definition if it is a farm, orchard or plantation.


That's completely inconsistent with Hamberger SDP's interpretation.  The Full Bench in Mitolo accepted that all those activities in the middle part of the clause, the growing, the packing et cetera, would be covered if they were an agricultural holding, a vegetable market garden, a flower market garden, a farm, an orchard or a plantation.  We've got six concepts, unlike Hamberger SDP that had the last three of those only if they fell within the first three.


But the problem with the Mitolo Full Bench interpretation is it doesn't give any effect to the words 'including' or sufficient effect, because including is not an exhaustive term.  It means of course, including, and if it is interpreted in that exhaustive way, that it only means farm, orchard or plantation, in our submission, that can't possible correct.


What we argued in the case on behalf of Mitolo, was that that facility at Virginia was an agricultural holding, that was the focus of the case, but we argued that it was also a farm.  In the decision, there was focus on this, in fact, we made submissions after the hearing on the history of the term agricultural holding, the various parties did.  The Bench rejected that the facility was an agricultural holding but they said that the term 'agricultural holding' meant a farm, and that's in paragraph 49.  If an agricultural holding and a farm are the same thing, then why are the two terms used in the award.


In the case, the whole focus of the case was about that paragraph and all the interplay with the different awards.  There was little focus on the concept of the farm gate because the farm gate is not even referred to in clause 4.2(a).  Whatever the current Bench's view is of that paragraph, in our submission, it's patently obvious that that paragraph is as clear as mud and there are so many different competing interpretations that the issue needs to be resolved and no doubt, that is why the Mitolo Full Bench invited the parties to have the issue contested in the four yearly review.


Just a couple of other brief issues, Mr de Carne made the very unusual statement that AiGroup wasn't present at the consultation before Lewin C, in late 2008.  I believe he made that statement.  I've checked the transcript.  We were represented at that consultation by Mr Craig Taylor who was our food and horticulture person at the time before he moved on to work for one our members at Nestle.  But we were deeply involved in all of those consultations as I pointed out.  I'm not sure what that submission was about.


Just one final point.  Both the AWU and NUW have argued that the notion of an important part is somehow novel, unclear and unworkable.  I make the same point that Mr Bourke made that is a very strange submission, where not only is that phrase used in section 424, but of course, in probably the most important High Court case in the industrial relations field - certainly one of them, in the last 20 years, is the Coal and Allied case and that case was all about the phrase 'significant damage and important part'.  We have a whole High Court case and all the Full Federal Court case and the various cases below that, about the phrase 'important part'.  So, the idea that it's somehow novel, is completely bizarre.  We say it is appropriate, it's practical, it's workable and the Bench should adopt it.


On all the other issues, I think our position is very clear from what we've put in our submissions and we'd urge the Bench to accept the wording that we have proposed and reinforce the points that Mr Bourke has made about the importance of the retrospective operative date.  If the Bench does have any concern about that, the form of order that Lawler VP made would address any issues.  If the Commission pleases.




MR DE CARNE:  Just a brief point.  The Commission expressed some interest as to whether or not there's been any action by the Fair Work Ombudsman in response to the decision in the Mitolo case and I can say this for what it's worth.  I don't know if it's of any assistance to you.  The Ombudsman has been issuing letters as part of its harvest trail campaign to growers who operate offsite packing sheds, letting them know that in light of the Mitolo decision, the Storage Services Award should apply.


We've been in some discussions with the Ombudsman and have been informed that they're putting it out there, letting the growers know that this is their view, but they're not actually taking enforcement action until the outcome of this decision is known.  That's the position as I understanding it, for what it's worth.




MS MACDOUGALL:  Thank you, your Honour.  Three points to make in fact, actually.  The first pivotal point, during the proceedings, certainly in the opening statements the question was put from Gayndah's perspective in relation to other enquiries by the union or employees regarding coverage and certainly no discussions and that issue had not been agitated.  But obviously, there's been a lot of discussion in relation to enquiries with the Ombudsman.  I have got instructions that in relation to the Fair Work Ombudsman with respect to Gayndah had expressed some time ago, and I can come back to the Bench with some more detailed information in relation to it, the potential coverage of Gayndah in respect of storage services, but consistent with their comments with respect to the NFF, there's been no further movement in relation to that.


If we can assist the Bench in that regard in terms of providing some further information, we're happy to do that.


VICE PRESIDENT CATANZARITI:  If you wish to provide some further material, I'll make a timetable at the end of this for further material, in a moment.


MS MACDOUGALL:  The other two points that I do wish to make and Mr Bourke kindly pointed out that the NUW did not respond to the question put by the Bench in relation to Gayndah packers and I would seek for that to be noted.  The concept of enterprise is actually not fine with respect to the Horticulture Award.  It is in fact referred to in the public holidays clause and also in the description of level one.  Whilst the award doesn't sort of discuss enterprise comprehensively, it's certainly a term that is not foreign to the award.


That's all I have to say, thank you.


VICE PRESIDENT CATANZARITI:  All right, thank you.  We'll give the parties two weeks to put on any material they wish to put in answer to the Deputy President's question involving the undertaking, and also any material in relation to whatever it is the Fair Work Ombudsman is doing.  Although, in my view, it seems clear the Fair Work Ombudsman is waiting for this decision.


Anything further from the parties?  The decision is reserved, the Commission is adjourned.

ADJOURNED INDEFINITELY                                                        [10.42 AM]