The horticulture industry breathes a sigh of relief as the Fair Work Commission makes it clear that packing sheds are covered by the Horticulture Award.
The National Farmers' Federation (NFF) welcomes the Fair Work Commission’s decision of 16 November to make changes to the Horticulture Award 2010 in accordance with the application made by the NFF and other employer parties.
The changes address a problem with the Award which resulted from a 2015 decision: Mitolo Group Pty Ltd v National Union of Workers. That decision set an alarming precedent.
It found that Horticulture Award applied to work inside the “farm gate” and that the “farm gate” was a physical barrier. Therefore if crops passed through that physical barrier — e.g. were transported to an ‘off-site’ pack shed — then the employees washing sorting, grading, and packing those crops should not be covered by the Horticulture Award. Instead, those employees had to be paid penalty rates and received other benefits in accordance with the Storage Services Award, which was not designed for work in the sector and did not account for the unique pressures that growers face.
As a consequence, employees working in packing sheds were to be paid at different rates depending on whether or not crops were grown on the same land as the shed.
The NFF sought changes to the Award to ensure that all packing sheds were subject to the Horticulture Award regardless of their location.
In the decision of 16 November 2017, the Commission decided that:
- The Horticulture Award applies to work inside the “farm gate”;
- The “farm gate” is a concept and not a physical location; it refers to all activities in the production process up to the first point of sale;
- The Award should be varied in accordance with the application made by the NFF to ensure that it operates correctly; and
- The variation should be retrospective from the date that the Horticulture Award first commenced in January 2010.
The effect of this decision is that all activities of horticultural enterprises from sowing, planting, growing and harvesting, including washing, grading and packing are covered by the horticulture award regardless of the location where this work is carried out, up until the first point of sale.
This applies from 1 January 2010 and therefore, there cannot be any claims for back pay on the basis that the Storage Services Award applied up until the decision of 16 November.
A copy of the decision can be located here.
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