The Fair Work Commission (FWC) is currently finalising changes to the Horticulture Award with regard to overtime payments for casual workers, which will have a significant impact on Australian vegetable and potato growers.

The FWC has come to the provisional view, following an extensive negotiation with the National Farmers’ Federation (NFF), Voice of Horticulture (VoH), the Australian Workers Union (AWU) and the National Union of Workers (NUW), that overtime will be introduced for casual employees.

Under the FWC’s provisional view, growers will need to pay casual employees overtime (50 per cent of casual rate) for every hour worked over 304 hours in an eight-week period. Those hours being worked between 6am-6pm Monday to Friday, and Saturday by agreement. Work outside of these hours and on Sundays is deemed overtime.

AUSVEG believes that the provisional view would significantly increase growers’ costs to their business, as well as force growers to look at alternative employment arrangements.

AUSVEG believes the view does not address the seasonality of many businesses, or the location and climate situations which many growers face, such as picking through the night to avoid the heat of the day. AUSVEG believes the proposed changes would disadvantage both growers and its casual workers.

Through negotiations, the FWC did acknowledge that the horticulture industry has its own unique challenges and circumstances regarding staffing requirements and work times, but it remains committed to bringing the Award into line with the Fair Work Act regarding casuals.

It should also be noted that the proposed changes do not impact piece rates.

At this stage there is no expected date for when the FWC will make a ruling but the NFF has requested a transition period for the horticulture industry.

Background

A detailed timeline of negotiation from the NFF:

2010: The terms of the current Award were introduced during Award Modernisation.

2014: Four-yearly review commenced with the purpose of reviewing all of the modern awards.

Early 2015: The Fair Work Ombudsman raised concerns about confusion as to whether casuals in horticulture are entitled to overtime. The AWU, with support from the NUW, made a claim to clarify that casuals are entitled to overtime.

Mid 2015: NFF jointly with Voice of Horticulture engaged a barrister to oppose the AWU claim and filed over 100 pages of submissions and 27 witness statements, including experts. Evidence from an academic who conducted a survey of Voice of Horticulture members on the potential impacts of this proposed change on the industry was filed.

Mid 2016: Approximately three days of hearing contesting the AWU claim.

Mid 2017: A decision was handed down that stated that some form of overtime would be introduced for casuals. The decision recognised that casuals are seasonal employees working long hours over short periods and that onerous overtime requirements would result in employers taking measures to avoid overtime. The Full Bench set out a provisional view that overtime would be paid at a rate of time and a half with ordinary hours limited to: 12 hours per day, 6am to 6pm, 304 hours over eight weeks.

Late 2017: NFF filed further submissions and witness statements seeking no time span of hours and an expanded averaging period of 988 hours over 26 weeks.

Early 2018: A short hearing led to a conciliation process between employer and employee parties which the Fair Work Commission is reviewing.

Current status

The NFF, on behalf of the horticulture industry, has responded to the FWC’s provisional decision with a revised proposal of average hours be over a period of 26 weeks (six months). It also considers an ordinary day to be 12 hours worked at any time during the day, not limited to 6am-6pm, and an overtime rate of 50 per cent of casual rate to be applied when the daily or weekly period is exceeded (plus casual loading). The proposal also presented a push for no spread of daily hours, providing flexibility for work on all days of the week to the benefit of growers and casual staff.

AUSVEG, through the NFF Horticulture Council, fully supports the NFF proposal and appreciates the work the organisation has done to this point on behalf of the horticulture industry.

AUSVEG is working on…

AUSVEG recognises the significant impact this is going to have on its members and is working to ensure the FWC and relevant politicians understand the level of impact it will have on the industry.

AUSVEG, through the NFF Horticulture Council, has written to the Minister for Small and Family Business, the Workplace and Deregulation the Hon Craig Laundy MP, as well as Minister for Jobs and Innovation Senator the Hon Michaelia Cash, and will follow up with meetings to ensure that the government fully understands the impact on the horticultural industry.

AUSVEG is also working with the NFF in investigating other options to help mitigate the impact the decision will have on growers moving forward, such as employee share arrangements, Enterprise Bargaining Agreements and others.

AUSVEG will continue to keep growers updated on any changes.

If you have any further questions, please contact AUSVEG National Manager – Public Affairs Tyson Cattle at tyson.cattle@ausveg.com.au.

This post appeared in the AUSVEG Weekly Update published 29 May 2018. Subscribe to the Update using our online form to receive the latest industry news in your inbox every week!