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Fair Work Act 2009                                       1057841






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Horticulture Award 2010


By Telephone AEST


12.10 PM, TUESDAY, 26 MAY 2020


THE DEPUTY PRESIDENT:  Good afternoon, it's Deputy President Clancy.  Could I confirm I have on the line Mr Crawford?  Do I have on the line Mr Crawford?


MR S CRAWFORD:  Yes, sorry, your Honour.


THE DEPUTY PRESIDENT:  Thank you.  Ms Bhatt?


MS R BHATT:  Yes, Deputy President.


THE DEPUTY PRESIDENT:  Thank you.  Mr Kingston?


MR R KINGSTON:  Yes, Deputy President.


THE DEPUTY PRESIDENT:  Thank you.  And Mr Rogers?


MR B ROGERS:  Yes, thank you, Deputy President.


THE DEPUTY PRESIDENT:  Thank you.  The Full Bench, in its decision dated 27 April 2020, dealt with what is classified as being Tranche 3 awards, the Horticulture Award being amongst them, and it specifically dealt with the Horticultural Award in the decision from paragraphs 175 through to 198.


There were a number of matters that were outlined in those paragraphs, some of which have been finalised through processes adopted by the Commission, but there was one issue dealing with clause 10.2 that it was indicated in the decision would be the subject of a conference.  This conference has been scheduled for the purposes of dealing with the matters relating to clause 10.2.


In that regard, the Commission has noted there are submissions before it, written submissions from the Ai Group dated 6 March, ABI dated 7 April and the AWU dated 7 April.  There is a difference of opinion as to what may or may not be required with clause 10.2, so we will have a discussion about that now and I will ask Ms Bhatt, perhaps, to commence the discussion and then we will work our way through with the other representatives.  I will hand over to you now, Ms Bhatt.


MS BHATT:  Thank you, Deputy President.  In reviewing the exposure draft, there were two issues in respect of clause 10.2 that we identified and we have suggested be addressed.


The first issue is that clause 10.2 requires that part-time employees be paid the ordinary hourly rate specified in clause 15, but clause 15 doesn't specify the ordinary hourly rate, which is defined as the base rate of pay plus any all-purpose allowances.  Clause 15, by and large, prescribes only the minimum hourly rate but not inclusive of all-purpose allowances, and clause 15 also deals with the piece worker rate.  We just think that that reference to clause 15 in the context of the ordinary hourly rate is confusing and should be removed, that the reference to clause 15 should be removed.


The second issue is about how this provision interacts with clause 15.2, which I mentioned earlier, it deals with piece worker rates, and I think that's where the real difference of opinion between us and the AWU arises.  It just seems to us that clause 10.2 creates an obligation to pay all part‑time employees a minimum hourly rate for every ordinary hour worked, but that that would not be the case if a piece worker arrangement was in place pursuant to clause 15.2 because it's a different form of remuneration that is put in place where such an agreement is reached or is put in place, and so we suggested that the words "Subject to clause 15.2" be inserted at the beginning of clause 10.2, which is just to carve out part-time employees who are being paid a piece worker rate.


I have read the AWU's submission in reply and I'm not sure that I fully understand the basis for the difference in opinion, but we might be assisted by a further discussion about the issue today with Mr Crawford.


THE DEPUTY PRESIDENT:  All right.  You have identified an issue with clause 10.2 and the ordinary hourly rate in clause 15 and you have pointed out there is no use of ordinary hourly rate in clause 15.  Is there a suggestion - because your suggested amendment still leaves that phrase in clause 10.2.  I note in clause 15, there is a note, or at least a footnote, in the table under 15.1.  Does that assist at all in terms of that point?  You see the table has got "minimum hourly rate" with a footnote [1] and it says, "Consistent with the definition of ordinary hourly rate."




THE DEPUTY PRESIDENT:  That might explain why you're not suggesting a further amendment to clause 10.2, I don't know.


MS BHATT:  The footnote might go some way in alleviating any confusion that might arise by referring someone reading clause 10.2 to clause 15, so I understand what the Deputy President is saying is you would read clause 15 and then the footnote explains how you derive the ordinarily hourly rate.  Look, it's not something we are going to die in a ditch over and ultimately we might be able to reach agreement about how to resolve it today.


THE DEPUTY PRESIDENT:  Yes.  Putting that aside, though, your concern is that clause 10.2 could be read or that someone could read that and get confused that it could cover a part-time piece worker, notwithstanding what is in clause 15?


MS BHATT:  Well, yes, and it doesn't make the interaction between clause 10.2 and clause 15.2 at all clear.




MS BHATT:  Potentially there is a lack of clarity and, secondly, yes, it might be argued that, in fact, 10.2 applies even to a piece worker.


THE DEPUTY PRESIDENT:  All right, yes, so if their piece rates didn't equate to the hourly rate, is that how the submission goes, is it?


MS BHATT:  That's right, and that would be inconsistent with 15.2(i).




MS BHATT:  Which expressly says that if you are paid a piece work, there's no guarantee that you will be paid or you will be entitled to the hourly rate that is paid by - - -


THE DEPUTY PRESIDENT:  Yes, I see that.  All right.  The other point made by ABI - I note, Mr Kingston, for ABI, supports the Ai Group position and suggests some further words, which starts making 10.2 rather wordy, but, in any event, you also make the suggestion that something similar would be needed in clause 11.3 dealing with casual employees.  Ms Bhatt, do you have a view on that?


MS BHATT:  I don't, but if I can have a moment to consider it while you turn to the other parties?


THE DEPUTY PRESIDENT:  Yes.  It stands to reason the same issue could arise, perhaps.


MS BHATT:  I think so.


THE DEPUTY PRESIDENT:  Mr Kingston, do you want to say anything further to what you have put in your submissions?


MR KINGSTON:  Not at this stage, Deputy President.  We agree with everything the Ai Group has submitted.  We believe that the reference to clause 15 is a little confusing given that it does prescribe minimum rates and not ordinary hourly rates.  Ordinary hourly rate is a defined term in the award, so there is perhaps no need to have a reference to a particular clause and it may be fine just to remove that, which I believe is in line with the original submission of the Ai Group.




MR KINGSTON:  And our suggestion that perhaps the additional words be inserted was purely to, I guess, aid the reader of the award in alluding to what clause 15.2 referred to, to save them having to flick through the award to realise that it was referring to people who were paid in accordance with a piece rate agreement.


THE DEPUTY PRESIDENT:  All right.  Mr Crawford, dealing with it in two parts, the proposal to insert "Subject to clause 15.2" at the start of clause 10.2 seems, on its face, a rather benign one.  It's got you excited, so what is the issue with that?


MR CRAWFORD:  Not necessarily on a personal level, your Honour, but there's no substantive dispute that an employee paid a piece work rate is entitled to a rate calculated using the relevant formula in clause 15.  They are not entitled to be paid at the minimum hourly rate or anything like that, so there's no dispute at our end on that issue.




MR CRAWFORD:  And we tend to agree there's no great harm caused by inserting "Subject to clause 15.2" if that resolves the issue.  I think we can live with that.


THE DEPUTY PRESIDENT:  All right.  The second element of it, though, is that something of more concern to you?


MR CRAWFORD:  Probably, because my understanding from being involved in the award review extensively is that generally if there is an award with all-purpose allowances in it, the term "ordinary hourly rate" is used pretty consistently throughout the award and, in contrast, if there are no all-purpose allowances, the term "minimum hourly rate" is used.  We accept that the actual rates payable in clause 15 is identifying minimum hourly rates, but not actually - it doesn't actually contain ordinary hourly rates.  I think that's because - well, that's just the approach that has been adopted across all awards, but, nevertheless, we don't see any harm caused by leaving the words "ordinary hourly rate" in clause 10.2, we don't really think a change is necessary.




MS BHATT:  I think I might have been - sorry, Deputy President - I think I might have been unclear because we seem to be at cross purposes.  10.2, we are not suggesting that "ordinary hourly rate" be amended or removed; the suggestion is the reference at the end of that clause to clause 15, it be deleted, so the clause would say:


A part-time employee will be paid no less than the ordinary hourly rate for the relevant classification.


Full stop.




MS BHATT:  I am not suggesting, Mr Crawford, that we remove the reference to "ordinary hourly rate" and I accept that that is the approach that has been taken across the board.


MR CRAWFORD:  Yes, I mean, I think that's probably all right.  I guess all the reference to clause 15 is doing is highlighting where you find the sort of minimum rates for the classifications.  Again, I think we could leave it with a full stop after "classification".


THE DEPUTY PRESIDENT:  Yes, all right.  Mr Rogers, sorry, I didn't mean to leave you out of the discussion.  Have you got anything you want to say on these two matters?


MR ROGERS:  Not in detail, your Honour, we tend to agree with the submissions that have been put by Ai Group and ABI.  I would say I think there are two points that I would make, that I don't think the current draft is vastly different to the proposed draft or the exposure draft and I'm not aware of any problems being caused under the current draft, so that might be suitable.


The other issue I would make is that if there is a change to 10.2, then I would generally agree with ABI that it would need to be made to 11.3 as well, otherwise I think it's going to create confusion or be inconsistent there.


THE DEPUTY PRESIDENT:  All right.  Look, it seems we are on the cusp of having sort of an agreed position.  Let's leave the casual clause to one side for the moment, but we might have an agreed position that the form of wording for clause 10.2 in the exposure draft could read:


Subject to clause 15.2, for each ordinary hour worked, a part-time employee will be paid no less than the ordinary hourly rate for the classification.


Full stop.  That's what I think I am detecting from the discussion.  Am I right in that?


MS BHATT:  Deputy President, just with one minor amendment.  I think it would read "for the relevant classification", which is in the most recent version of the exposure draft, just the word "relevant" before "classification".


THE DEPUTY PRESIDENT:  All right, yes, though that wasn't in your submission of 6 March.


MS BHATT:  No, it wasn't.


THE DEPUTY PRESIDENT:  I am happy to add that in.  Okay, "relevant", yes.


MS BHATT:  Thank you.


THE DEPUTY PRESIDENT:  Are you happy with that, Mr Crawford?


MR CRAWFORD:  Yes, your Honour.


THE DEPUTY PRESIDENT:  Thank you.  All right.  Now, should we attend to clause 11.3, casual loading.  Structured slightly differently to clause 10.  So, if we were to attempt to replicate what is intended for clause 10.2, where would the "Subject to clause 15.2" - is it 15.2, would it be, or would it be another - no, "piece workers" covers everyone, yes, it's not a piece worker part-time rate.  All right.  Where might that be best placed?


MS BHATT:  I think at the very commencement of (a):


Subject to clause 15.2, for each hour worked, a casual employee must be paid -


and then the rest goes on.


THE DEPUTY PRESIDENT:  Yes, I see, it talks about ordinary hourly rate, the loading and the classification.  All right.  What do we think of that:


Subject to clause 15.2, for each hour worked, a casual must be paid -


et cetera?  Are we comfortable with that?


MR KINGSTON:  There may be one problem, Deputy President, which I have just noticed, which is clause 15.2(c) refers to the calculation of piece worker rates for casual employees and refers to the casual loading prescribed in 11.3(a).  So, if we're essentially carving out piece workers from 11.3(a), then there may be an issue with that reference in the calculation of the piece rate itself.


Now, I suspect that issue could be resolved with a consequential amendment to clause 15.2(c) and perhaps it could read:


The calculation of piece work rates in clause 15.2(b) for casual employees will include a 25 per cent casual loading.


THE DEPUTY PRESIDENT:  Oh, boy, now it's starting to get a bit unwieldly.


MS BHATT:  I am not sure that that issue necessarily arises.  I understand the point that Mr Kingston is alluding to, but isn't it the case that 15.2(b) deals with how the piece work rate must be calculated and the essence of it is that it must enable the average competent employee to earn at least 15 per cent more than a minimum hourly rate and then (c) says that in the case of a casual employee, when you are making that calculation that is required by (b), you need to take into account the casual loading.




MS BHATT:  So even if we exclude 15.2 from the casual employment clause we were just looking at, I think that 15.2(c) would still continue to do the same work.


MR CRAWFORD:  But I don't think we're excluding clause 15.2.


THE DEPUTY PRESIDENT:  No, you're saying "Subject to".  I don't think it's excluding it.


MR CRAWFORD:  I don't think any change is necessary.  I think it's picked up.


MR KINGSTON:  Yes, I agree now, Ms Bhatt is correct, it is referring to the calculation of the piece rate based upon the rate that will be payable to a non-piece worker, so I'm in agreement, there's no further changes needed.


THE DEPUTY PRESIDENT:  All right, so can I confirm everyone is happy to proceed on the basis that the suggestion to the Full Bench will be for clause 11.3(a) the words "Subject to clause 15.2" be inserted at the start there?  There is silence.  Can I take silence as being consent?




MR ROGERS:  The NFF consents.


MS BHATT:  Yes, from our perspective.


THE DEPUTY PRESIDENT:  All right, I will proceed on that basis and prepare a report to the Full Bench.


Now, having read back through the decision of 27 April, I don't see any other matters that needed any attention.


The parties will have noted that there was recently published by the Commission the latest version of the exposure draft on 8 May and a draft award variation determination.  If any matters arise out of that, I am happy to discuss them now, but the decision certainly indicated that the interested parties would have an opportunity to review the rates in the variation determination.  Are there any matters that have arisen thus far since the publishing?


MR ROGERS:  Your Honour, sorry, it's Rogers from the NFF.




MR ROGERS:  There is one issue that I thought I needed to raise and that is changes to clause 21.4 and that's adopting the language of "ordinary hourly rates" rather than "minimum hourly rates", which would have the consequential effect of meaning that overtime payments are calculated on a rate which is inclusive of the all-purpose allowance.


I don't think that that was raised in any of the submissions and I think the Commission took the view that it followed on from some changes or some submissions which were made by the AWU, but I have got to stress that's a very significant change to the industry and I would like an opportunity to make some submissions.




MR CRAWFORD:  Written submissions on that issue.  I know there's been a lot of time and energy spent around that issue and we may not be able to move the Commission, but I feel like I needed to raise it as it is something of significant gravity for the sector.


THE DEPUTY PRESIDENT:  When you say clause 21.4, in the exposure draft or the draft for award variation determination?


MR ROGERS:  That's the exposure draft which was published on 8 May.


THE DEPUTY PRESIDENT:  Just a moment.  All right, was it dealt with in - I'm just going back now to the text of the decision of 27 April.


MR CRAWFORD:  I think it is, your Honour, for example, at paragraph 188.


THE DEPUTY PRESIDENT:  All right, thank you.  I will just go to the background paper.  The background paper was published, but wasn't that, though, in reference to clause 13.2?  Is the amendment to clause 21.4 consequential on the amendment to clause 13.2?  I am just looking at the - - -


THE ASSOCIATE:  Deputy President, it's Vivian here, Mr Rogers has just dropped off our call, so I'll need to patch him in again.


THE DEPUTY PRESIDENT:  All right, thanks.


MR ROGERS:  I apologise, your Honour, it's Rogers for the NFF, I dropped out.


THE DEPUTY PRESIDENT:  That's all right.  I am just trying to trace this back through, Mr Rogers.  The header page for the exposure draft records that there was an amendment made to clause 21.4.


MR ROGERS:  I think the change is recorded in the decision at paragraph 192 which says, "We also note the same issues may arise in clause 20.4", if that assists.


THE DEPUTY PRESIDENT:  20.4, okay, I might be wrong there.  Yes, okay.


MR ROGERS:  I missed that change until I had read the exposure draft yesterday and that's why I am late in making the submission.


THE DEPUTY PRESIDENT:  I see.  The issue there, if I look at paragraph 191, 191 talks about changing the reference to "minimum hourly rate" to "ordinary hourly rate" and then, what, your position is - and I will allow you to address me on this, Mr Crawford - your issue, you say, arises because there was a submission that the Full Bench said the same issue may arise in relation to clause 20.4, which was the payment for overtime clause, casual employees, which has become 21.4, yes, and then the decision then goes on and said, at 163 of the background paper, "We invite the parties to comment."


At that stage, the AWU's submission was raised in relation to the public holiday rates.  The Full Bench, "We note the same issue may arise."  There was an opportunity to comment, there was no opposition to the proposal, at least on the public holiday rates, from the ABI and Ai Group.  Okay.


All right, it looks like, Mr Rogers, you are taking up the invitation in 197 to review the rates and you have got a concern.


MR ROGERS:  Essentially, that's it, yes, your Honour.


THE DEPUTY PRESIDENT:  All right.  Well, it looks like you had better articulate that concern sooner rather than later and the Full Bench will consider what to do.


MR ROGERS:  Okay.  So it's just a matter of making some written submissions on that issue, I think.


THE DEPUTY PRESIDENT:  Well, yes, I am not going to be able to definitively say what the process would be, but that would probably be a good start, and that's going to be attention-grabbing, and the members of the Full Bench will consider this further.  Mr Crawford, you and other interested parties will obviously have an opportunity to state your piece, but, I think at this stage, Mr Rogers, what you had better to is outline your issues, flag your concerns and the Full Bench will consider what you have to say before deciding anything further.


MR ROGERS:  Thank you, your Honour.


THE DEPUTY PRESIDENT:  Is that all relatively clear to everybody else?


MS BHATT:  Yes, thank you.


MR KINGSTON:  Yes, thank you, Deputy President.




MR CRAWFORD:  Yes, your Honour.


THE DEPUTY PRESIDENT:  Thank you.  All right, is there anything further that any party wants to raise in relation to the award?


MR KINGSTON:  Not from ABI, Deputy President.


THE DEPUTY PRESIDENT:  All right, thank you.


MS BHATT:  No, thank you.


THE DEPUTY PRESIDENT:  Thank you, Ms Bhatt.


MR ROGERS:  Not from the NFF, your Honour.


THE DEPUTY PRESIDENT:  Thank you, Mr Rogers.


MR CRAWFORD:  No, your Honour.


THE DEPUTY PRESIDENT:  Thank you, Mr Crawford.  All right, thank you all for your attendance in the conference today.  I will prepare a report for the Full Bench and the Full Bench will make a final determination in relation to clauses 10.2 and I think it's 11.3, I think we discussed - just bear with me - yes, 11.3, for casuals - and we will await the correspondence from Mr Rogers and see where that takes things in relation to clause 21.4.


Thank you, everybody, I will bring the conference to a close.

ADJOURNED TO A DATE TO BE FIXED                                        [4.39 PM]