More information on the Horticulture Award and changes to overtime for casuals
Changes must now be implemented
With the changes to the Horticulture Award coming into effect on Monday 15 April 2019, employers are urged to read the below information and use the Fair Work Ombudsman (FWO) PACT Calculator to help. If for any reason there is confusion, or an employer would like to check their rates are correct, please contact the Fair Work Ombudsman (FWO) on 13 13 94.
FWO has told AUSVEG they will be there to assist employers during what is a significant change to the award and their business.
*Please ensure when using the PACT Calculator – the date is set on or after 15 April 2019.
1. Summary of FWC Decision
The Fair Work Commission has issued a decision to vary the Horticulture Award to provide overtime rates, ordinary hours and public holiday rates for casuals. A final determination has been issued, and changes will operate from the first ppc on or after 15 April 2019.
The decision reflects the following changes:
Ordinary hours for casuals
The ordinary hours of work for casual employees other than shiftworkers will not exceed 304 ordinary hours over an eight week period provided that:
a) Ordinary hours of work for casual employees can be worked at any time;
b) Each ordinary hour of work worked by a casual employee on any day of the week (excluding public holidays) between 5.00 am and 8.30 pm will be paid at the employee’s minimum hourly wage for his or her classification plus a casual loading of 25%;
c) In a State or Territory that does not observe daylight saving time, by agreement between the employer and a majority of affected casual employees, the 5.00 am to 8.30 pm daily spread of hours can be moved forward one hour (4.00 am to 7.30 pm) for the period of daylight saving time in other States and Territories;
d) Each ordinary hour worked by a casual employee on any day of the week (excluding public holidays) between 8.31 pm and 4.59 am (or 7.31 pm and 3.59 am in accordance with clause 22.2(c)) will attract a loading of 15% of the employee’s minimum hourly wage for his or her classification (in addition to the casual loading of 25%);
e) The maximum number of ordinary hours which a casual employee may work per engagement, or on any day, is 12 ordinary hours;
f) All time worked in excess of 12 hours per engagement, 12 hours in a single day or 304 ordinary hours over an eight week period will be deemed overtime.
Payment for overtime – casual employees
Each hour worked in excess of 12 hours per engagement, 12 hours in a single day or 304 ordinary hours over an eight week period will be paid at a rate of 175% of the employee’s minimum hourly wage for his or her classification (inclusive of the casual loading).
Public holiday rates of pay – casual employees
All hours worked by a casual employee on a public holiday (both ordinary hours and any overtime) will be paid at a rate of 225% of the employee’s minimum hourly wage for his or her classification (inclusive of the casual loading).
NFF Horticulture Council’s request for a transitional period
Please note that FWC made the following comments in response to the NFF’s suggestion of a transitional period for the above changes:
 With regard to the NFF’s suggestion that the determination provide for a transitional period for implementation of the likelihood of the introduction of over for casual employees, we note that the industry has been on notice of the intention to introduce over payments for employees covered by the Horticulture Award since mid-2017. This was first stated in our principal decision which was issued on 5 July 2017, was reiterated in our August 2018 decision, and was reflected in the draft determination issued on 30 August 2018. For this reason we consider that a transitional period is unnecessary. The determination to give effect to our decision will operate from the first full pay period on or after 15 April 2019.
2. What is the FWO doing?
In accord with our statutory functions to promote harmonious, productive and cooperative workplace relations as well as ensure compliance with the Fair Work Act 2009 (the FW Act), the Fair Work Ombudsman provides education, assistance and advice to employees and employers (section 682 of the FW Act).
With respect to the FWC’s Modern Award Review process, the FWO has a team of officers dedicated to monitoring all variations and developments decided by the FWC to ensure our customers have the most up to date information regarding the obligations and rights that flow from all and any FWC decisions.
With respect to the FWC’s most recent decision concerning the Horticulture Award, the FWO has been aware of the likelihood of this decision since the FWC advised in 2017 that it would be likely to implement these new provisions.
Given the timing of this decision the FWO will provide as much education as FWO can to employers and employees throughout the industry.
To that end, FWO advises that its publicly available Pay Calculator (PACT) will be updated with the applicable changes by Friday 12 April 2019, along with a republished Horticulture Award pay guide.
The FWO will also be issuing information and advice regarding the changes to the public via Twitter and Facebook, as well as emails to its subscribers that are interested in or covered by the Horticulture Award.
In addition, its customer service officers and inspectors are able to provide advice and assistance to any of growers and employees via phone or email.
The Fair Work Ombudsman is bound to apply the law, but in doing so FWO will take a reasonable and proportionate approach to its compliance and enforcement activities. Its approach to all compliance matters is set out in its Compliance and Enforcement Policy that is publically available via www.fairwork.gov.au.
With respect to the FWC’s decision, where FWO come across instances of non-compliance with the new provisions, FWO will seek to work with the parties towards a sensible and reasonable outcome. In so doing, FWO will expect employers to cooperate and work towards compliance.
FWO have instructed its inspectors and front line staff to inform Steve Ronson, Executive Director – Proactive Compliance, of any businesses found to be non-compliant with the new provisions through the course of the year so that FWO can work with any relevant employer organisation in ensuring compliance.
The FWO is currently updating PACT to align with the final determination issued by the Fair Work Commission (FWC) regarding the introduction of a night loading for casuals. This type of work is performed on a regular basis in PACT, and made based on the FWO’s interpretation of the final determination
In PACT, the night loading is referenced as ‘Outside span of hours.’ The night loading will be calculated cumulatively. This means that the night loading will be calculated on the hourly rate, and added to the hourly rate inclusive of the casual loading.
For example, the hourly rate for a casual Level 1 employee will be calculated as follows:
(15% (night loading) x $18.93 (minimum hourly rate)) + (25% (casual loading) x $18.93 (minimum hourly rate) + $18.93 (minimum hourly rate) = $2.84 + $4.73 + $18.93 = $26.50
Customers can access the calculation steps from the pay summary screen for each calculated rate.
To access the new night loading (once it has been updated) in advance of the effective date, customers will need to ensure they update the effective date to 15 April 2019 in the pay calculator.
Other changes in PACT will include:
- Text to assist customers to identify when the new entitlements may apply to them.
- New eligibility questions for customers to determine which overtime for casual employees rate (i.e. either outside the time span worked between Monday and Sunday, or overtime worked between Monday and Sunday) applies to their circumstances.
- the new outside the span of hours penalty – 15%
- the new overtime – Monday to Sunday penalty – 50%
AUSVEG again urges any employers who are concerned or have any questions to please contact the Fair Work Ombudsman (FWO) on 13 13 94.
*This determination comes into operation from 15 April 2019. In accordance with s.165(3) of the Fair Work Act 2009 this determination does not take effect until the start of the first full pay period that starts on or after the date of the operation.