Farmers have intervened to stare down a legal challenge threatening to upturn longstanding arrangements for piecework rates in the horticulture industry.
The National Farmers’ Federation (NFF) has successfully applied to intervene in a court case to advocate for the correct interpretation of the piecework provisions of the Horticulture Award 2010.
In the matter Fair Work Ombudsman v Hu & Ors (Marland Mushrooms), being heard in the Brisbane Federal Court, the Fair Work Ombudsman (FWO) is applying to the court for orders that a farmer pay penalties for what she claims are breaches of the piecework provisions of the Award.
Piecework rates refer to a rate of pay for which a worker is paid for segments of work, for example for the number of apples picked, or broccolis harvested.
The outcome has the potential to set a precedent for how the award is applied across the horticulture sector. Because of this, the NFF has intervened, on behalf of farmers, in attempt to ensure the proper construction is given to the piecework provisions in the Horticulture Award 2010.
The NFF believes piecework rates are a fair mechanism for rewarding hard work. Under the Award, piecework rates are fixed by agreement between the employer and the employee – provided that the piecework rate can enable the average, competent worker to earn at least 15 per cent more than the minimum hourly rate.
The NFF believes that the FWO’s construction of the award does not give proper consideration to how hard or fast the worker actually worked. It appears that if the worker ended up earning less than 15% more than the minimum wage for each hour that he/she worked, then the FWO considers that the agreed rate must have been too low and the employer is therefore in breach of the award.
The effect of that interruption of the award could be that the worker would always receive at least 15% more than the award rate, regardless of how fast or hard they worked, removing the incentive for the employees to work hard and effectively rendering the piecework provisions pointless.
In addition, the FWO is contesting that if the agreed rate was too low then the worker should be paid at the minimum wage, rather than at a rate, which is consistent with the piecework provisions – for example a rate which would allow the average, competent worker to earn at least 15 per cent more than the minimum hourly rate. This approach would further undermine the utility of the piecework provisions of the Award.
Making the intervention possible, the NFF has successfully sought financial support from the Australian Farmers’ Fighting Fund (AFFF).
The AFFF enables the farm sector to ‘fight’ legal battles, the outcomes of which would place ‘unwarranted barriers to the development of sustainable farming practises and vibrant regional communities’. Essentially, the fund can be enacted when a case has the potential to set a precedent damaging to the interests of the farm sector.
Interestingly, the AFFF was a born as a result of a dispute over piecework rates in a 1985 case involving the Northern Territory Mudginberri Abattoir and the Australasian Meat Industry Employees Union. The dispute centred on the piecework rates paid to meat processing workers and brought meat processing in the Northern Territory to halt – and therefore, the business of the Northern Territory cattle producers. The dispute highlighted the power of unions and the ability of their actions to compromise the business of Australian agriculture and industry productivity.
As such, 45,000 farmers ‘put their hands’ in their pocket to establish a fund to support legal challenges in cases that have the potential to set ‘disturbing’ precedents for farmers, regional communities and Australia as a whole
Since 1985, the AFFF has financially backed more than 100 cases, resulting in significant wins for Australian farmers. Cases in which the AFFF has been enacted have related to land use, mining and exploration, bank conduct and, most recently, the Government’s shut of the live cattle export trade.
The AFFF operates separately from the National Farmers’ Federation by its own board of trustees
The Marland Mushrooms case is scheduled to be heard in October 2017.