AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996 s.576E - Procedure for carrying out award modernisation process

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

(AM 2008/14) Award Modernisation Agricultural Industry

Exposure Draft Consultations

Submissions of The Australian Workers’ Union

General Overview

1. The AWU submit that there should be separate awards covering the discrete aspects of the Agricultural Industry. The AWU supports the Commission’s approach where a discrete award was not made by the Commission, though a discrete part within an award was made. 2. The current award conditions of workers within the Agricultural Industry are diverse. Extensive transitional arrangements are needed to ensure that workers are not disadvantaged for the transitional period when the modern award begins to operate. The Commission decided to consider any transitional provisions at a later stage in the process.1 3. The AWU submits changes to the Agricultural awards in these submissions and highlights the changes for the Commission’s reference. The AWU intends to make further submissions at the consultations in Sydney on 26 February 2009. The AWU will endeavour to provide the Commission with amended and marked-up exposure drafts for the various awards within the Agricultural Industry prior to appearing on 26 February 2009.

Pastoral Industry Award 2010 Pastoral Industry Award 2010 – Definitions – Clause 3.1 – “broadacre field crops” 4. The AWU supports the Commission’s approach to scope in the Pastoral Industry Award 2010. The definition of “broadacre field crops” is integral to the avoidance of overlap with the Exposure Draft Horticulture Award 2010. The inclusion of reference to the definition of the “broadacre field crops” within the corresponding definition of “horticultural crops” at clause 3.1 of the Exposure Draft Horticulture Award 2010 avoids overlap and ambiguity between the application of the two awards and provides clear rules that identify which award applies.

1 Award Modernisation Statement [2009] AIRCFB 50, 23 January 2009, par [11]

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5.Where there is any overlap or potential overlap in the coverage of modern awards, the Commission will as far as possible include clear rules that identify which award applies.2 The AWU submits that the Commission has as far as possible included clear rules to identify which award applies. The AWU submit in pre-drafting consultations that the Agricultural Industry Award correctly specify an exhaustive list of broad acre field crops. 6.The AWU acknowledges that the terminology of the Pastoral Industry Award 1998 is broad. The AWU also acknowledges that there is currently a significant overlap in the application of agricultural awards generally and with the terminology in the Pastoral Industry Award 1998.3 However, it is well established that the breadth of terminology in the PIA does not gazump the other awards.4 The AWU strongly submitted that the use of the word “crops” without specification in any modern translation of the Pastoral Industry awards would raise a significant ambiguity. 7.To define all of the crops in the Horticultural Industry Award 2010 would result in a long, complicated and detailed list of inclusions.5 Such a long and exhaustive list is not required for the definition of broadacre field crops in the Pastoral Industry Award 2010. 8.In addition to the crops listed in the exposure draft at clause 3.1 the AWU submits that rice should be added to the “definition of broadacre field crop” as it is a crop which should correctly fall under the definition of “broadacre”. Rice is not a “horticultural crop” under the Exposure Draft Horticulture Award 2010 at clause 3.1. Pastoral Industry Award 2010 – Definitions – Clause 3.1 – “broadacre mixed farming enterprise” 9.The NFF made submissions, both written and at the pre-drafting consultations in November and December, about the certainty of application where the enterprise of the employer is that of “mixed farming” and the uncertainty of application without this concept being built into the award for those farmers who had operations which were diversified. 10.Where there is any overlap or potential overlap in the coverage of modern awards, the Commission will as far as possible include clear rules that identify which award applies.6

11.The AWU supports the concept of the definition of broadacre mixed farming enterprise, however the AWU submits that the fourth dot point under that definition fails to achieve the certainty of award application required under clause 3(j) of the Award Modernisation request. The point provides:

2 Consolidated Request Paragraph 3(j) 3 The Australian Workers' Union v Kia - PR909948 [2001] AIRC 1047. The Australian Workers' Union v Ada River Vineyards Kelliher Wines Pty Limited and Balgownie Estate and another - PR951704 [2004] AIRC 887 (7 September 2004). Notification under section 130 by the Australian Workers' Union, New South Wales, of a dispute with Wj & A Seery re payment of overtime and penalty rates [2000] NSWIRComm 62 (5 May 2000). 4 The Australian Workers' Union v Kia - PR909948 [2001] AIRC 1047 5 (AM 2008/14) AWU Submission 31 November 2008, para 15. 6 Consolidated Request Paragraph 3(j)

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• a farming enterprise which in addition to any of the above grows other crops, either for the purposes of crop rotation or in conjunction with the growing of broadacre field crops and/or the raising of livestock as part of a mixed farming enterprise.”

12.The above definition links to the application clause at 4.2(e) of the exposure draft. The AWU acknowledges that employees may well work in an operation that is part of a mixed farming enterprise, though they often work in a discrete part of that enterprise performing work of a specialised and dedicated nature rather than of a general nature.7 The AWU submits that the Commission’s task of regarding the “desirability of reducing the number of awards” which apply in the industrial relations system or to any particular employer should not be weighed in favour of the intention to avoid disadvantaging employees.8 13.The AWU submits that the Commission should reconsider the definition of “broadacer mixed farming enterprise” and clause 4.2(e). The AWU provides amendments to the exposure draft below. Under the current terms, there is the potential that an employer may use the definition and the clause as it is currently drafted to avoid the application of the Horticultural Industry Award 2010. An employer could have an enterprise which was predominantly and primarily a Horticultural enterprise, though by utilising the terms “in addition to any of the above grows other crops”, the employer could apply the Pastoral Industry Award 2010 when the Horticulture Industry Award 2010 is the appropriate award for work of a dedicated and specialised nature.9 For example, an employer may grow 100 acres of oranges adjunct to a smaller and much less significant grazing operation. To avoisuch misapplication the AWU proposes the following amendments to the definition of “broadacre mixed farming enterprise”:

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• a farming enterprise which in addition to any of the above grows other crops, either for the purposes of crop rotation or in conjunction with the growing of broadacre field crops and/or the raising of livestock as part of a mixed farming enterprise”

14.The AWU understands that the overlapping award clause, at clause 4.6, with reference to the classifications in the Exposure Draft Horticulture Industry Award 2010 and the Exposure Draft Pastoral Industry Award 2010, would operate to avoid some circumstances of misapplication of the Pastoral Industry Award 2010 in favour of Exposure Draft Horticulture Industry Award 2010. The classifications are discussed in more detail below. 7 The Australian Workers' Union v Kia - PR909948 [2001] AIRC 1047 The Australian Workers' Union v Ada River Vineyards Kelliher Wines Pty Limited and Balgownie Estate and another - PR951704 [2004] AIRC 887 (7 September 2004). 8 Consolidated Award Modernisation Request, clause 2(c). 9 The Australian Workers' Union v Kia - PR909948 [2001] AIRC 1047 The Australian Workers' Union v Ada River Vineyards Kelliher Wines Pty Limited and Balgownie Estate and another - PR951704 [2004] AIRC 887 (7 September 2004).

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15.The AWU understands that the NFF intend to submit against the concept of “mixed farming enterprise”. The AWU would like to highlight to the Full Bench that this concept was included in the first draft that the NFF provided to the Commission on 31 October 2008 at clause 4.3(h) of their draft award. This was also a point which was developed in great detail at the pre-drafting consultations Pastoral Industry Award 2010 – Definitions – Clause 3.1 – “Farm and livestock hand”

16.The AWU supports the Commission’s approach to creating parts within the Exposure Draft Pastoral Industry Award 2010.

17.When different grades of station hand were introduced into the PI Award 1998, the Commission said -

“The type of employee designated as a general station hand is required to have had at least two years' experience in the industry and would be capable of performing most of the functions covered by the classifications of employment in the Union's application. He would, in effect, be a "mixed functions" employee: Re The Pastoral Industry Award, 1956 (1957) 88 CAR 66, at 69.”

18.Those employees who are “mixed functions employees”, and their duties are fitting of the new modern exposure draft definition of “Farm and livestock hand”, at clause 3.1 of the Exposure Draft Pastoral Industry Award 2010, may well work in an operation that is part of a mixed farming enterprise. Further, the AWU acknowledges that employees may well work in an operation that is part of a mixed farming enterprise, some of those employees often work in a discrete part of that mixed farming enterprise performing work of a specialised and dedicated nature rather than of a general nature.10

19.The AWU submits that, due to the nature of Australian farms, an increasing number of those employees working on large mixed farms are now working in a specialised and dedicated nature. The mixed farming general station hand is no longer as common on these large farms as they were in 1957. Casual employees are employed seasonally for concentrated, specialised and dedicated work. The Productivity Commission has reported that:

“Australian farms are now fewer but larger, and production has become more concentrated on the larger farms … The agriculture workforce has seen a decline in the proportion of employers and contributing family workers, and an increase in the proportion of employees.”11

20.The discrete parts of the Exposure Draft Pastoral Industry Award 2010 and corresponding definitions within the exposure draft Pastoral Industry Award 2010 for 10 The Australian Workers' Union v Kia - PR909948 [2001] AIRC 1047 The Australian Workers' Union v Ada River Vineyards Kelliher Wines Pty Limited and Balgownie Estate and another - PR951704 [2004] AIRC 887 (7 September 2004). 11 Productivity Commission, paper: Trends in Australian Agriculture http://www.pc.gov.au/research/commissionresearch/agriculture/keypoints

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“shearers” (part 7) “piggery attendants”(part 5) and “poultry workers”(part 6) achieves this delineation between the discrete activities and conditions of workers in the Agricultural Industry.

21.The AWU submits that due to the operation of the definition of “broadacre mixed farming enterprise” (Clause 3.1) it is necessary to slightly alter the definition of “Farm and livestock hand” to avoid overlap. The AWU provides the following amendments for the Commission’s inclusion in the definition of “Farm and livestock hand”. The changes are highlighted in grey for the Commission’s reference:

“Farm and livestock hand means an employee performing the work described in the classifications which apply to such work in Part 4—BroadacreFarming and Livestock Operations of this award and who is not a Piggery attendant, Poultry worker or any employee classified under Part 7—Shearing

Operations, provided that the employee is not performing work primarily on horticultural crops as defined in the Horticulture Award 2010. “

2.Through the operation of the overlapping award provision, at clause 4.6 of the

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astoral Industry Award 2010 – Definitions – Clause 3.1 – “wine industry”

3.There is exclusion in clause 4.3 of the Exposure Draft Pastoral Industry Award

4.In the Exposure Draft Pastoral Industry Award 2010, there is currently no the

5.In addition to the overlap between the Horticultural Award 2010 and the Wine

ing

2Exposure Draft Pastoral Industry Award 2010, those employees who are accuratel“mixed functions employees” would be covered by the definition and classifications for the “Farm and livestock hand”. Those employees who would more appropriately fall under the classifications within the Exposure Draft Horticulture Industry Award 2010 would have that award applied by an employer covered by both the HorticultuIndustry and the Pastoral Industry awards. Employees in the Horticulture Industry are often itinerants and they are predominately employed for a season or part of a season, so it is extremely important that there is clarity in application of the correct award and classification structure. P 22010 for the “wine industry”. The “wine industry” is defined at clause 3.1. The AWUsupports the inclusion of a definition of the “wine industry”. The AWU provides an amended definition of “wine industry” below. 2definition of “vineyard”, while the Horticulture Industry Award 2010, which hassame related “wine industry” definition contains a definition of “vineyard”. The AWUand other interested parties are opposed to the definition in the Horticulture Award 2010. This AWU’s opposition and the reasons for that opposition are developed in relation to the Horticulture Industry Award 2010 below. 2Industry Award 2010, there would be significant overlap with the Pastoral IndustryAward 2010 if there was insufficient clarity about the definitions of “vineyard” and “wine industry” or if the Pastoral Industry Award 2010 failed to define “vineyard”. Grape growing does not generally fall under the Pastoral Industry Award 1998, whether for the making of wine or for table or dried purposes. Some grape growmay currently fall under the Horticultural Industry (AWU) Award 2000 -

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AP784867CRV – Fed, where it is not for the purpose of manufacturing wine.12 Therefore, the definition of “vineyard” under the Pastoral industry Award 2010 should be more expansive than under the Horticultural Award 2010, which would cover grapes grown for purposes other than for the manufacture or for the processing of wine, to exclude all grape growing activities from the Pastoral industry Award 2010. 26.The AWU submits the following definition for the Commission to include at clause 3.1 of the Exposure Draft Pastoral Industry Award 2010:

“vineyard means a place where grapes are grown”.

27.The AWU submits the following changes to the definition for the Commission to include at clause 3.1 of the Exposure Draft Pastoral Industry Award 2010:

“wine industry means:

(a) the preparation of land for planting of wine grape vines; the care, growing, treating, picking, harvesting, and forwarding of wine grapes; and the pruning of wine grape vines and other activities associated with a wine grape vineyard; “

Pastoral Industry Award 2010 – Application Clause 4

28.The AWU strongly supports the Commission’s approach to the application clause at clause 4, if the amendments to the definitions section at clause 3.1, as proposed by the AWU above, are accepted by the Commission. Pastoral Industry Award 2010 – casual conversion – Clause 10.4 29.The AWU supports the Commission’s inclusion of casual conversion at clause 10.4. There is an established industry standard within the Pastoral Industry.

Pastoral Industry Award 2010 - The Award Flexibility Clause and Sheering -

30.Each modern award will include the model flexibility term with such adaptation as is required for the modern award in which it is included. The flexibility term in the Pastoral Industry Award 2010 requires adaptation for shearing operations.

31.Clause 11AA of the consolidated request now provides that the Commission must ensure that a flexibility term in a modern award:

“• requires the employer to ensure that any individual flexibility arrangement must result in the employee being better off overall;”

12 The Australian Workers’ Union and Ada River Vineyard Wines Pty Limited & Ors [PR951704] in relation to the Wine Industry – AWU – Award 1999 at paragraphs 66 and 70

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32.The Commission encouraged interested parties to bring forward proposals and submissions as to how this new requirement should be reflected in the award flexibility clauses.

33.The AWU made submissions about the relationship with the flexibility clause and the shearing. Weekend shearing was addressed in the pre-drafting consultations on 12 December 2008. It was acknowledged by all parties that it was not a practice in any state other than in Western Australia.

34.Without overtime being included in the Part 7 there is a reduced probability of the employee being better off overall if the award flexibility clause can operate for individuals in the shearing industry.

35.If the flexibility provision was to have an impact on arrangements as to when shearing work is performed, the shearing section 7 of the Pastoral Industry Award 2010 would need to contain overtime provisions to result on balance in no disadvantage. Where shearing operations are being performed outside normal hours of work, overtime would have to apply to compensate shearing shed staff. With the exception of Western Australia, weekend work is not contemplated in the current run system within the awards in the Commission’s list. 36.It is the AWU’s submission that the award flexibility clause contained in the Pastoral Industry Award 2010 should not extend to ‘when work is performed’ for shearing operations or alternatively should be drafted to ensure that the terms related to “arrangements for when work is performed” should meet the genuine needs of the employer and the shearing team. 37.The nature of work in the Shearing Industry is team-based. The AWU submits that the arrangement of hours worked in a shearing shed must be agreed between the employer and the majority of the employees. With the exception of the Shearing cook, it is essential the others work the same nominated hours each day. Currently, a ‘run’ is of 2 hours duration and there are 4 runs per working day. The normal ratio of Shearers to other shed staff is 1 to 1. For example, 4 shearers require two Shed Hands, one Woolpresser and a Woolclasser. The number of shed staff may differ slightly between operations depending on the level of productivity or the individual requirements of the owner. 38.Should any one of the ‘team’ not be available to work, the workplace becomes unbalanced. If a shearer is unavailable or just doesn’t turn up, it means there is not sufficient wool to keep the shed staff gainfully employed. If one of the shed staff fails to appear for work, extra pressure is placed on the other team members to try and keep the job going. Should the wool classer be absent for any period of time, the operation must cease, as storing shorn wool for classing later is not an option. The same situation applies to the Wool presser, should he be absent from the shed for any longer than perhaps one hour, the operation becomes almost unworkable. It is for this reason, working hours to be kept consistent for all employees engaged directly in connection with shearing. 39.The AWU provides the following amendments to clause 7 of the Exposure Draft Pastoral Industry Award 2010:

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“7.1 Notwithstanding any other provision of this award, an employer and an individual employee may agree to vary the application of certain terms of this award to meet the genuine individual needs of the employer and the individual employee. The terms the employer and the individual employee may agree to vary the application of are those concerning:

(a) arrangements for when work is performed, except in relation to shearing operations and part 7 of this award where the employer and the majority of employees may agree to vary the application of terms concerning arrangements for when work is performed.

Pastoral Industry Award 2010 – relationship between part 4 and part 7 40.Clause 9 of the Pastoral Industry Award 1998 has not been reproduced in the Exposure Draft Pastoral Industry Award 2010. Clause 19 deals with the situation where a station hand undertakes shearing activities. The clause is necessary to avoid disputes where shearers are employed and paid under the wrong part of the award. 41.Clause 19 of the Pastoral Industry Award 1998 currently provides:

“9. STATION HANDS EMPLOYED AT SHEARING OR CRUTCHING

Notwithstanding anything else contained in this award, Part 2 of the award shall not apply to any employee engaged to work on a weekly basis under Part 3 during any time the employee is employed in shearing or crutching operations of the principal employer. Provided that this clause shall not apply to any station hand engaged by the week who works in the employer’s shearing shed and who has been engaged by the employer during the period commencing one week before the actual shearing or crutching begins and who is discharged during the week after the shearing or crutching actually ends. In such case, the employee shall be paid station hand rates when performing work covered by Part 3 of this award and shearing rates when performing work covered by Part 2 of this award.”

42.The AWU submits that the following clause should be inserted into the Exposure Draft Pastoral Industry Award 2010 around clause 10:

“9. Farm and livestock hand at shearing or crutching

Notwithstanding anything else contained in this award, Part 7 of the award shall not apply to any employee engaged to work on a weekly basis under Part 4 during any time the employee is employed in shearing or crutching operations of the principal employer. Provided that this clause shall not apply to any Farm and livestock hand engaged by the week who works in the employer’s shearing shed and who has been engaged by the employer during the period commencing one week before the actual shearing or crutching begins and who is discharged during the week after the shearing or crutching

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actually ends. In such case, the employee shall be paid station hand rates when performing work covered by Part 4 of this award and shearing rates when performing work covered by Part 7 of this award.”

Pastoral Industry Award 2010 – Superannuation – Clause 21 43.Clause 10.2.1 of the Pastoral Industry Award 1998 provides for the meaning of “ordinary time earnings” for the purposes of the award. The AWU submits that it is necessary to retain the definition in the Pastoral Industry Award 2010. There are frequent and recurrent problems in the Pastoral industry concerning non-compliance with Superannuation legislation. The explication of that which amounts to ordinary time earnings for the calculation of superannuation is extremely necessary in this industry and particularly for shearers who rely on aspects of a formula for the payment of superannuation. This issue has been discussed at length with the NFF. The NFF support the retention of the terms of clause 10.2.1, 10.2.2, 10.2.3 of the Pastoral Industry Award 1998. 44.The AWU submits that the terms of the superannuation clause in the Pastoral Industry Award 1998 should be preserved. The AWU provides the following clause for the Commission’s inclusion in the Exposure Draft Pastoral Industry Award 2010 at clause 21.1. The changes have been highlighted for the Commission’s reference:

“21.1 Superannuation legislation

(a) Superannuation legislation, including the Superannuation Guarantee (Administration) Act 1992 (Cth), the Superannuation Guarantee Charge Act 1992 (Cth), the Superannuation Industry (Supervision) Act 1993 (Cth) and the Superannuation (Resolution of Complaints) Act 1993 (Cth), deals with the superannuation rights and obligations of employers and employees. Under superannuation legislation individual employees generally have the opportunity to choose their own superannuation fund. If an employee does not choose a superannuation fund, any superannuation fund nominated in the award covering the employee applies.

(b) The rights and obligations in these clauses supplement those in superannuation legislation.

(c) In respect of any employee to whom this clause applies, the employee’s “notional earnings base” for the purpose of the Superannuation Guarantee (Administration) Act shall be that employee’s “ordinary time earnings”. For the purpose of this subclause “ordinary time earnings” means either:

• in the case of an employee employed pursuant to Part 2 of this award the total amount of gross wages paid for the period of shearing or crutching operation (as the case may be); or

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• in the case of an employee to whom Part 3 of this award applies, the rate for that employee’s classification under this award, together with overaward payments (where relevant).”

45.The AWU submits that AustralianSuper should be named as a default fund in the list in clause 21.4 of the Exposure Draft Pastoral industry Award 2010. AustralianSuper are a named default fund in the awards within the Commission’s list which will be superseded by the Exposure Draft Pastoral industry Award 2010. Pastoral Industry Award 2010 – Pieceworkers – Clause 22 and the NES 46.The NES apply to piece workers.13 Clause 19 of the Commission’s 23 January Statement requests that parties consider the provision of payment for leave for pieceworkers:

“[19] Clauses 43 to 45 of the consolidated request refer to piece workers and to the interaction between modern awards and the entitlements in the National Employment Standards (NES). A number of Stage 2 industries have piece workers. We ask interested parties to address the matters raised in cll.44 and 45 of the consolidated request during the consultations.”

47.The AWU has addressed the issue in light of clause 22.3(b) the Commission has drafted in the exposure draft Pastoral Industry Award 2010 and supports the Commission’s approach to the payment for annual leave for pieceworkers under that award, where that employee is not engaged as a casual employee. 48.The AWU submits, however, that the Exposure Draft Pastoral Industry Award 2010 needs a clause for the calculation of piecework if clause 22.3(b) has any work to do for pieceworkers other than casuals. There is no such clause in the Pastoral Industry Award 1998. The AWU attempted to ascertain where in the pastoral industry employees might be pieceworkers though not engaged as casual employees. Nonetheless, the AWU has provided the following submissions on the basis that there are such workers within the pastoral industry to accommodate the payment for leave entitlements under the NES. 49.The AWU submits that the payment of annual leave loading for pieceworkers which is linked by clause 22.4(b)(i) of the Exposure Draft Pastoral Industry Award 2010 should be expressed so that the loading unambiguously applies to the rate of pay for pieceworkers other than casuals. The AWU has redrafted the following point for the Commission to include in place of the first point under clause 22.4(i) in the Exposure Draft Pastoral Industry Award 2010. The changes are highlighted in grey for the Commission’s reference:

“22.4 Annual leave loading

(a) An employee must also be paid a loading calculated on the wages prescribed by this award.

13 Consolidated Request Paragraph 44

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(b) The loading must be as follows:

(i) Other than shiftworkers

• An employee other than a shiftworker, including pieceworkers who are not engaged as casuals, must be paid a loading equal to 17.5% of the wages prescribed by this award for the ordinary hours of work as performed between Monday and Friday.”

Pastoral Industry Award 2010 – Pieceworkers – Clause 23 and the NES 50.The NES apply to piece workers.14 Pieceworkers other than casuals are entitled to 10 days paid personal/carer’s leave as provided for under the NES. However, clause 23 of the Exposure Draft Pastoral Industry Award 2010 does not provide for the rate of pay for pieceworkers for the days of leave they will take under that clause. The AWU submits that the same approach taken by the Commission for the payment of annual leave for pieceworkers, at clause 22.3(b), should be taken in respect of paid personal/carer’s leave and compassionate leave for pieceworkers other than casuals. The AWU has drafted the following clause for the Commission to include in place of clause 26 in the Exposure Draft Horticulture Award 2010. The changes are highlighted in grey for the Commission’s reference:

“23. Personal/carer’s leave and compassionate leave 23.1 Personal/carer’s leave and compassionate leave are provided for

in the NES. 23.2 An employee employed on piece or bonus work, or any other

system of payment by results, must be paid the rate which is the weekly average of payments made to the employee for the period actually in respect of which such payments have been calculated prior to the time of taking personal/carer’s leave, as the case may be during any period of annual leave.

Pastoral Industry Award 2010 – Pieceworkers – Clause 24 and the NES 51.The AWU has drafted an additional clause for calculating payments for an employee who is paid piece rates with respect to period of paid absence from work. The AWU submits that the Commission include the highlighted clause under clause 24.1 in the Exposure Draft Pastoral Industry Award 2010. The changes are highlighted in grey for the Commission’s reference:

“24.1 Community Service Leave

(a) Community service leave is provided for in the NES.

(b) In the case of an employee employed on piecework, the pieceworker will be paid the rate for the period of leave which is the

14 Consolidated Request Paragraph 44

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weekly average of payments made to the employee for the period prior to the time of going on leave, as the case may be.”

Pastoral Industry Award 2010 – Pieceworkers – Clause 22 and the NES 52.The AWU has drafted an additional clause for calculating payments for an employee who is paid piece rates with respect to period of paid absence from work during public holidays. The AWU submits that the Commission include the highlighted clause under clause 25.1 in the Exposure Draft Pastoral Industry Award 2010. The changes are highlighted in grey for the Commission’s reference:

“25.1 Public Holidays

(a) Public holidays are provided for in the NES.

(b) In the case of an employee employed on piecework, the pieceworker will be paid the rate for the public holiday the rate which is the weekly average of payments made to the employee for the period prior to the public holiday, as the case may be.”

Pastoral Industry Award 2010 – Part 4 – Clause 29 53.The AWU supports clause 29 of the Exposure Draft Pastoral Industry Award 2010 in its current form. A significant number of employees will be disadvantaged as a result of the clause, however, the AWU submits that the balance struck by the clause in the industry is appropriate. Extensive transitional arrangements are needed to ensure that workers are not disadvantaged for the transitional period when the modern award begins to operate. The Commission decided to consider any transitional provisions at a later stage in the process.15 54.The AWU understands that the NFF will be making substantive submissions in opposition to the clause and in favour of the Part 3 Pastoral Industry Award 1998 hours of work provision. The issue of hours of work was addressed in great detail before the release of the Pastoral Industry Award 2010 exposure draft. The AWU proposed an alternative clause in the AWU’s draft awards submitted to the Commission in November and December 2008. The AWU reserves the right to make further submissions in respect of clause 29 in the exposure draft consultations and respond to the NFF submissions. 55.The NES provides that modern awards must not provide for ordinary hours of work to be in excess of an average of 38 per week.16 The Workplace Relations Act 1996 provides that employers must not be required or requested by an employer to work more than an average of 38 hours per week.17 Pastoral Industry Award 2010 – Part 7 - Sheering - Hours of Work – 38-hour week

15 Award Modernisation Statement [2009] AIRCFB 50, 23 January 2009, par [11] 16 NES, s12(6); This provision appears in the Fair Work Bill 2008 at s63. 17 Workplace Relations Act 1996, s226(1).

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56.The NES provides that modern awards must not provide for ordinary hours of work to be in excess of an average of 38 per week.18 The Workplace Relations Act 1996 provides that employers must not be required or requested by an employer to work more than an average of 38 hours per week.19 Despite these statutory requirements, both the Pre-reform and Transitional versions of the Pastoral Industry Award 1998 (PIA) provide for a 40-hour week.20 The Workplace Relations Regulations provide for a transition period of three years for the introduction of the 38-hour week for transitional and common rule awards in Victoria.21 Therefore, the 40-hour week provided for in the PIA will cease to apply in Victoria on 27 March 2009.22 Modern awards must not contain state-based differences.23 Therefore, the hours of work provided for in the exposure draft of the modern Agricultural Industry award must not provide for ordinary hours in excess of 38 per week. 57.In the January 23 Statement the Commission indicated provisional support for the AWU’s proposal to include changes to the divisor. This remains the AWU’s position and it is the strong submission of the AWU that it is the most appropriate and logical means of introduction of the 38 hour week. The AWU submits that there as the basis of time which is used to calculate the amount of sheep which could be shorn in a week has changed the only possible means of retaining the basis for the formula and the integrity of the formula is to change the divisor. 58.Shearers engaged under the PIA are paid a piece rate calculated on a 40-hour ordinary working week. The piece rates in the PIA are calculated on the basis that shearers shear and average of 500 sheep per 40-hour week (100 per day). The simple introduction of the 38-hour week in the shearing industry will disadvantage shearers. As a result of the introduction of the 38-hour week, shearers will have 5% less time to shear sheep and receive 5% less money per week. The current piece rate is based on a shearer shearing 100 sheep per day. In order to ensure the shearers are not disadvantaged by the introduction of the of the 38-hour week, the AWU submits that the current rates should remain unchanged and the number of sheep shorn in a day used to calculate the piece rate should be reduced to 95. This is a clear and simple way of ensuring the shearers are not disadvantaged by the introduction of the 38-hour week. It is a logical solution as there is a 5% reduction in the time available to shear. 59.If the Commission is not inclined to alter the 100-per-day figure, the AWU submits in the alternative that the current per-hundred figure of $233.82 should be increased by 5% to $245.51. This would also ensure that shearers are not as dramatically disadvantaged by the introduction of the 38-hour week. 60.In the alternative the NFF have argued, and this is opposed by the AWU or the Shearing Contractors Association, the minimum-rate component of the shearers’

18 NES, s12(6); This provision appears in the Fair Work Bill 2008 at s63. 19 Workplace Relations Act 1996, s226(1). 20 Pastoral Industry Award 1998, cl 22.1.1 21 Workplace Relations Regulations 1996, Ch7, Reg 2.4A. 22 Workplace Relations Regulations 1996, Ch7, Reg 2.4A. 23 Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008, s576T;this provision appears in the Fair Work Bill 2008 at s154.

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piece rate formula, $114.33, could be increased by 5% to $120.05. The existing shearers’ piece rate formula would then be applied. A significant proportion of the shearers’ per-hundred rate consists of a reimbursement of expenses for their hand piece, combs, cutters and rations. Given that work-related expenses are such a significant component of the total per-hundred rate, this would result in a 3.55% increase in the total per-hundred rate. We have provided the Commission with a table attached at the end of these submissions, marked Attachment “B” which details the calculations which relate to these positions. 61.To accommodate the change to a 38 hour week within the shearing run system the AWU provides the following amendment to clause 47 of the Exposure Draft Pastoral Industry Award 2010. The AWU has highlighted the change for the Commission’s reference:

“47. HOURS OF WORK FOR SHEARERS AND CRUTCHERS

47.1 The ordinary hours of work for shearers and crutches will be 38 per week, Monday to Friday. The hours must not exceed eight per day and will be worked in two hour groupings called runs. The ordinary run times are Monday to Friday as follows:

7.30 am – 9.30 am 10.00 am – 12.00 pm 1.00 pm – 3.00 pm 3.30 pm – 3.30 pm”

62.The change has been discussed with the interested parties and the AWU submits that this is the most appropriate change to accommodate the 38 hour week. Pastoral Industry Award 2010 – Part 7 – Crutching of Studs 63.The creation of modern awards is not intended to disadvantage employees.24 It is clearly written in the various State awards that there is an increased rate for crutching of stud and ewes. While it is clear in the shearing section of the Exposure Draft Pastoral Industry Award 2010, that there are increased rates the Exposure Draft remains silent in the crutching section. The AWU submits that the increased rates for shearing studs and ewes should be included for the crutching of studs and ewes.

Pastoral Industry Award 2010 – Weekend Shearing

64.The AWU submits that if weekend shearing in the state of Western Australia is to be dealt with at all in modern awards it should be dealt with at a later stage in the process as a transitional matter for that state. The Commission stated:

“As indicated in its decision of 19 December 2008, the Commission decided to consider any transitional provisions at a later stage in the process”25 24 Consolidated Award Modernisation Request Clause 2 (c) 25 Award Modernisation Statement [2009] AIRCFB 50, 23 January 2009, par [11]

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Pastoral Industry Award 2010 – Part 7 - Sheering - Shearers conditions of work 65.Section 576(1)(c) provides that a modern award may include terms about arrangements for when work is performed, including hours of work, rostering, notice periods, rest breaks and variations to working hours. 66.Section 576B(2)(g) provides that in performing its functions the Commission must have regard to the safety, health and welfare of employees. 67.Section 576J(2) provides that a modern award may also include terms about any other matter specified in the award modernisation request to which the modern award relates. 68.The Pastoral Industry Award 1998 provides:

“24.3 Condition of sheep

The employee may refuse to shear sheep without any responsibility for delay in the following circumstances.

24.3.1 Wet sheep:

(a) If the overseer and the shed representative agree that the sheep are too wet to shear or crutch; or

(b) If in the employees honest opinion, the sheep are so wet as to

be likely to injure the employee’s health, and the employee informs the overseer to that effect; or

(c) If in the honest opinion of a majority of shearers (or crutchers) excluding any learner by vote on a secret ballot it is determined that the sheep are too wet to shear or crutch).

(d) The supervisor may request that the vote be delayed until after

the shearers (or crutchers) have shorn (or crutched) two sheep each and that the ballot papers have been counted in the presence of the supervisor. The supervisor may request that further votes be taken in relation to sheep which have been voted wet in the same day.

[24.3.1(e) deleted by PR900617 from 12Dec00] 24.3.2 Infected Sheep – Sheep Affected With Prickly Pear, Cancerous

Sheep, Wet Sheep [24.3.2 heading inserted by PR900617 from 12Dec00]

The employee may refuse to shear sheep (or crutch) where the sheep are:

• Cancerous

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• Suffering from scabby mouth • Suffering from any wound or sore other than maggots • If they are suffering from a disease communicable to the

employee • Affected by prickly pear, unless the employer provides the

employee with such basil or other gloves and coverings as are necessary.

The employee shall put any affected sheep appearing on the board down the chute.

24.3.3 Conditions of sheep – employer requirements:

(a) The employer shall so far as is practicable and reasonable in the particular circumstances prevent from entering the shed;

• Any cancerous sheep • Any sheep that has an offensive wound or sore, other

than from maggots (unless properly treated with antiseptic • Any sheep suffering from scabby mouth • Any sheep suffering from any disease communicable to

the employee

(b) The employer need not pen sheep for shearing (or crutching)which in the honest opinion of the employee should not be shorn or crutched because they are too wet to be shorn (or crutched), without responsibility for any delay.

(c) The employer may also withdraw sheep which have been

penned for shearing (or crutching ) when, in the employer’s honest opinion, the wool is to wet for pressing, without responsibility for any delay.”

69.The above provisions have not been reproduced in the Pastoral Industry Award 2010 exposure draft. The AWU submits that the provisions abstracted from the Pastoral Industry Award 1998 above and the conditions to which they relate are arrangements for when work is performed and conditions relevant to the safety, health and welfare of employees and therefore may be dealt with in modern awards. 70.Clauses 43.1 and 47.4 of the Pastoral Industry Award 2010 Exposure Draft both refers to circumstances when sheep have been voted wet. The above abstracted terms Pastoral Industry Award 1998 are therefore not obsolete terms (s.576W(2)(d)) and the Commission’s exposure draft recognises this fact. 71.Inclement weather provisions in the General Onsite Construction Industry Award 2010 exposure draft are similar in respect of the fact that they deal with the health and safety of employees. The Commission has stated provisionally that inclement

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weather provisions are a Modern Award matter.26 The AWU submits that the above abstracted condition of sheep provisions are a Modern Award matter. 72.Furthermore, shearing operations are carried out in isolated areas, rendering it impractical to call on the State work place inspectors to intervene in the event of a dispute concerning the condition of sheep. The retention of the clauses promotes the productive performance of work, as it is an established method of avoiding disputes with employers. The removal of such provisions may destabilise conditions and result in disputes. 73.The issues regarding the inclusion of the terms relating to the condition of sheep have been discussed with the NFF and the NFF have indicated their support for including the terms as they were expressed in the Pastoral Industry Award 1998. Pastoral Industry Award 2010 – Part 7 - Sheering - Shearers conditions of work – Provision of Sheep and Yarding of Sheep 74.The provisions within part 2 of the Pastoral Industry Award 1998 have not been reproduced in the Pastoral Industry Award 2010 exposure draft. The AWU submits that the provisions abstracted from the Pastoral Industry Award 1998 below and the conditions to which they relate are arrangements for when work is performed and relate to the safety, health and welfare of employees. The therefore may be dealt with in modern awards. 75.The AWU submits that the following provisions from the Pastoral Industry Award 1998 should be inserted into the Pastoral Industry Award 2010:

“28. PROVISION OF SHEEP

28.1 The total number of sheep to be shorn (or crutched) at the shearing (or crutching) shall not be more than the maximum number agreed upon nor less than the minimum number agreed upon nor shall the number of shearers employed exceed the number agreed upon.

28.2 Subject to this award, the employer shall be ready to commence shearing (or

crutching) on the date appointed and will keep the shearers (or crutchers) fully supplied with sheep until the completion of the shearing (or crutching). But the employer shall not be bound to furnish the agreed minimum number of sheep or to be so ready or to so keep the employee fully supplied if prevented therefrom by any cause unavoidable by him; provided, however, that the employer shall inform the employee, as soon as is reasonably possible, whether, and to what extent, the employee will be or is likely to be so prevented. Provided also that when the employer is a contractor shearing or crutching sheep under contract with an owner or the owners agent, the failure of the owner or agent to keep the contractor supplied with sheep for shearing (crutching) shall not be deemed to be a cause unavoidable by the contractor unless the owner or agent is prevented from supplying sheep because of any unavoidable cause.

26 Award Modernisation Statement (AM2008/13–24), 23 January 2009, par [43].

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29. YARDING SHEEP FOR SHEARING

29.1 At shearing operations the employer shall, unless prevented by any cause unavoidable by the employer, yard the sheep for shearing at least four hours before the time of their being shorn so as to overcome any fullness or sweat in such sheep and the employee shall thereupon shear such sheep with all reasonable dispatch and without any delay whatsoever.

29.1.1 This clause shall not apply in the case of:

(a) ewes within two months of lambing; (b) ewes with lambs up to three months old; (c) sheep which have previously been yarded for shearing but have been turned out because they are too wet to shear.”

30. POSTING OF TALLIES

The employer shall daily make available to each employee the employee’s tally or bale weight for each run worked in a day.”

Pastoral Industry Award – Allowances 76.The Wool Presser appears to have lost the weighing & branding allowance in the drafting of the Exposure Draft Pastoral Industry Award 2010. 77.The current Pastoral Industry Award 1998 clause 22.5.2 provides:

“For any time worked in excess of the ordinary working hours, payment shall be made at the rate of time & a half” {This is close to the wording which must be inserted into the modern shearing award for all time workers’} A clause such as this will reduce the amount of [out of hours work being performed]

Pastoral Industry – Part 6 – Poultry Farming 78.Clause 40.3 of the Exposure Draft Pastoral Industry Award 2010 states that ordinary hours may be worked between 5:00am and 7:00pm Monday to Sunday inclusive. Clause 2 (ii) of the Poultry Farm Employees (State) Award (NSW) provides that ordinary hours will be worked between 6:00am and 6:00pm Monday to Saturday inclusive. The AWU submits hours from the NSW Award should be adopted.

79.Clause 41 of the Exposure Draft Pastoral Industry Award 2010 entitles an employee to time and a half for all overtime worked. Clause 8 (i) of the Poultry Farm Employees (State) Award (NSW) states that overtime will be paid at time and a half for the first 2 hours and double time thereafter.

80.Clause 41.1 of the Exposure Draft Pastoral Industry Award 2010 does not provide a minimum number of hours of overtime that must be paid at double time on Sunday. Clause 7 (iv) of the Poultry Farm Employees (State) Award (NSW) states that a minimum of 3 hours of overtime must be paid on Sunday.

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81.The AWU understands that the NFF will be making submissions opposing the Poultry part of the Exposure Draft Pastoral Industry Award 2010. The AWU reserves the right to make further and extensive submissions regarding the poultry part of the Exposure Draft Pastoral Industry Award 2010.

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Horticulture Award 2010 – Clause 3 - Definitions – “horticultural crops” 82.The AWU strongly supports the definition of “horticultural crops” in the Horticulture Award 2010 exposure draft and the Commission’s decision to link the definition to the definition of “broad acher field crops” contained in the exposure draft for the Pastoral Industry Award 2010. This linkage avoids potential overlap in the coverage of modern awards, and the Commission has as far as possible included clear rules that identify which award applies.27 Horticulture Award 2010 – Clause 3 - Definitions – “vineyards” 83.The AWU is opposed to the term “vineyard” as defined in the Exposure Draft Horticultural Award 2010. The definition is a new construction and provides:

“vineyard means a place where wine grapes are grown exclusively or predominantly for processing into wine”.

84.The AWU’s concern relates to the restriction in the terms of the definition and the relationship the term has to the exclusion at 4.3(a) of the exposure draft of the “wine industry”. The definition of “wine industry”, as drafted in the exposure draft, links to the definition of “vineyards”. 85.The term “vineyard” is contained in current awards relating to the wine industry and there is a common definition within those awards. This definition is well understood and applied.

The definition in the Wine Industry - AWU - Award 1999 provides: “4.8 Vineyard means a place where grapes are grown for the manufacture of wine.”

The definition in the Wine Industry (WA) Award 2005 provides:

“1-5 (4) Vineyard means a place where grapes are grown for the manufacture of wine.”

The Wine Industry Consolidated (State) Award NSW provides that the award:

“shall apply to all wineries in the State and in so far as it affects employees working in vineyards growing grapes for the manufacture of wine, throughout the State.”

The SA Wine Award applies to “persons in or in connection with vineyards”. Vineyards are not defined in that award.

86.It was on the basis that consideration of these awards were being deferred to stage 3 that the AWU made submissions regarding the conditions under the Horticultural Award 2010. There would be an even stronger argument for a Monday to Friday, 6am to 6pm span of hours model in the modern Horticultural Award if staff

27 Consolidated Request Paragraph 3(j)

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working on “vineyards”, as currently defined in all relevant awards throughout Australia, were caught within the scope of the modern Horticultural Award. 87.The AWU proposed the following definition for the Commission in the AWU draft Horticulture Award 2010:

“vineyard means a place where wine grapes are grown for processing into wine.”

88.The AWU’s proposed definition preserves the status quo within the current awards and was drafted with consultation with interested parties within the wine industry. 89.During the 27 November 2008 consultations, representatives of Australian Industry Group proposed the wording “principally grown for the manufacture of wine” at Paragraph Number 410 and onwards. The definition of “vineyard” within the Exposure Draft Horticultural Award 2010 goes further than the proposition of the parties and would result in the exclusion in 4.3(a) for the “wine industry” operating in an extremely limited capacity for viticultural activities in the wine industry. 90.The unintended result of the exposure draft definition could be misapplication of the Horticultural Award 2010 by grape growers who would not deem themselves to be growing grapes “exclusively or predominantly for processing into wine”. This would be a significant transition from the status quo where the awards only refer to the growing of grapes for wine making. There would be significant disadvantage for employees if this definition was contained within a made modern award. 91.Furthermore, the result of the retention of the definition of the “vineyards” in the exposure draft would result in significantly different conditions for workers in the vineyards of an employer under the “Horticultural Industry Award 2010” and those in the proposed “Wine Industry Award 2010”. The work performed at stand alone vineyards is within the scope of all the wine industry awards and there is no reason why a worker in a stand alone vineyard should have lesser terms and conditions to a worker in a vineyard producing grapes “exclusively or predominantly for processing into wine”. 92.The Commonwealth Government submission to the Full Bench on Award Modernisation, at paragraph 70, provides that where the Commission includes the same occupation in more than one industry award, it is desirable that, so far as practicable, the terms and conditions for that occupation are consistent across the relevant industry awards. 93.The AWU submits strongly against the inclusion of the wine industry occupations within the modern Horticultural Award. The AWU submits that inherent in the requirement that the appropriate award should act as a safety net of fair minimum wages and conditions is the notion that the safety net itself is a fair one. Paragraph 70 of the Commonwealth Government submission stated:

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“Where there is any overlap or potential overlap in the coverage of modern awards, the Commission will as far as possible include clear rules that identify which award applies.”28 94.The AWU submits that the exposure draft definition of “vineyard” does not provide clear rules and avoid overlap. The wine industry awards cover the cultivation of grapes for wine and the harvesting of grapes for wine. 95.The Commission decided in The Australian Workers’ Union and Ada River Vineyard Wines Pty Limited & Ors [PR951704] in relation to the Wine Industry – AWU – Award 1999 at paragraphs 66 and 70 that the Wine Industry – AWU – Award 1999 was more appropriate for coverage of ‘operations extending from planting through to winery activities ending with the removal of the product’ than the Horticultural Award. 96.The AWU submits that the term “vineyard” should be defined in the Horticultural Award 2010 as it is currently defined across all wine awards in the nation and that the status quo should be preserved. In the alternative, if the Commission decides to retain the terms of the definition of “vineyards” in the exposure draft then the conditions for those working on wine grape vines should be consistent across the industry awards. The hours of work provisions and classifications would need to be contained in a separate part of the Horticultural Award 2010 to cater for those employees working on grape vines. In all wine industry Awards the employee conditions are more favourable for employees than under the Exposure Draft Horticultural Industry 2010. 97.The AWU submits that the circumstance where the grower does not know until they pick the grapes whether they are going to use those grapes for manufacture of wine or another purpose are not prevalent and are extremely rare. The definition of vineyards the AWU and the LHMU propose will not capture the broader mixed irrigation horticultural activities. This was the concern of HAC and the NFF raised during the consultations. 98.The Commission made clear in the 23 January Statement at paragraph 24 that the Commission would deal with the wine industry in Stage 3. The AWU submits that the significance of the overlap issue should be dealt with between interested parties at this later stage and that the Commission should not restrict the exclusion of the wine industry by affirming a new constructed definition of “vineyards” until such time as interested parties in the wine industry are heard. Horticulture Industry Award 2010 - Hours – Part 5 – clause 22.3 99.The AWU strongly opposes the spread of hours clause in the Exposure Draft. The AWU submitted draft Horticultural Awards on the basis that there was a principle Federal Award, drafted by this Commission.

28 Consolidated Request Paragraph 3(j)

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100.On 28 November Commissioner Lewin requested that the AWU provide the Commission with a table outlining the relevant hours provisions of the awards relevant to Horticulture in the Commission’s list for the Agricultural Industry. The AWU provided the table on 10 December in accordance with the Commissioner’s request. It was on the basis that consideration of nursery awards and wine industry awards were to be excluded from consideration.29 The AWU again attaches the table prepared for the reference of the Full Bench, which is marked Attachment “B”. 101.The AWU submits that undue emphasis has been placed by the Commission on the hours provisions of the Horticultural Industry (State) Award - AN120247 – NSW. NSW accounts for less than 15% of the share of total Horticulture and Fruit Growing employment.30 Many employers in NSW are under the Horticultural Industry (AWU) Award 2000 - AP784867CRV – Fed through employer respondency. 102.The largest share of the Horticulture Industry in 2008 was in SA with 22 per cent. 31 In the Riverland in South Australia the AWU Federal Award applies through the respondency of employers. Major employers such as the Costa Group, Montague, National Foods and Berri use the Horticultural Industry (AWU) Award 2000 - AP784867CRV – Fed. 103.Tasmania’s Horticulture Industry, which accounts for 4 percent of the national workforce is under the Horticultural Industry (AWU) Award 2000 - AP784867CRV – Fed through membership respondency of the TFGA Industrial Association. The Award is common rule in Victoria which accounts for 18 per cent of the workforce. 32 104.The AWU submits that the Commission has overlooked the preponderance of award conditions and coverage considerations in drafting clause 22.3, and although significant attention has been paid to the hours of work provision in Horticultural Industry (State) Award - AN120247 – NSW, the Commission has overlooked many of the other conditions within Horticultural Industry (State) Award - AN120247 – NSW which balance that award’s conditions. For instance, the overtime provision in the Horticultural Industry (State) Award - AN120247 – NSW provides for overtime on a rate of 150% for the first three hours and 200% for any time after. The Commission has apparently drafted the payment of the overtime provision at clause 24.1 Exposure Draft Horticulture Award 2010 from reference to the terms of Schedule B and C of the Federal AWU Horticultural Award. Furthermore, notwithstanding clause 22.3 of the Exposure Draft Horticulture Award 2010, the Commission seems to have drafted the balance of the Exposure Draft from Schedule B and C conditions of the Federal AWU Horticultural Award. 105.The exposure draft Horticulture Award 2010 provides for a maximum of 10 ordinary hours. Of the relevant awards in the Commission’s list, the employees under the following awards will be disadvantaged by the operation of the Horticulture

29 Please see above the consideration 30 Department of Education, Employment and Workplace Relations, Survey of Employers’ Recruitment Experience, Horticulture Seasonal Workers, July – September 2008, referring to figures derived from Labour Force Detailed Quarterly (Cat No: 9691.0.55.003). 31 Labour Force Quaterly 32 Labour Force Quaterly

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Industry Award 2010 Exposure Draft, as the following awards provide for a maximum of 8 ordinary hours:

• Hop Industry Award 2001 - AP811240 • Horticultural Industry (AWU) Award 2000 - AP784867CRV - Fed

o Schedule A respondents o Schedule B & C

• Fruit and Vegetable Growing Industry Award - State 2002 - AN140126 – Qld • The Dried Vine Fruits Industry Award, 1951 - AN160101 – WA • The Dried Vine Fruits Industry Award, 1951 - AN160101 – WA • Farming and Fruit Growing Award AN170032 – Tas • Fruit Growing and Fruit Packing Industry Award, The - AN160134 – WA. • Tea Industry Award – State – Qld.

106.Of the relevant awards in the Commission’s list, only the Horticultural Industry (State) Award - AN120247 – NSW and the Mushroom Industry Employees State AN120357 - NSW provide for a maximum of 10 ordinary hours before overtime is to be paid for further hours worked. This is at odds with the Award Modernisation Request and the relevant provisions of the Workplace Relations Act 1996. 107.The AWU’s primary submission is that the Horticulture Award 2010 should contain the hours of work provision submitted by the AWU in the drafts provided to the Commission on 24 November and 10 December 2008. This clause was earliert in the process supported by the National Farmers’ Federation. In their November 24 2008 submission and the draft Horticulture Award 2010 submitted by the NFF on November 24 2008, the NFF provided the Commission with the following hours of work clause:

“ORDINARY HOURS OF WORK AND ROSTERING

The ordinary hours of work for weekly employees will not exceed 152 hours in any consecutive period of four weeks to be worked, except in the case of shift workers, between the hours of 6:00am and 6:00pm Monday to Friday.”

108.The NFF supported the hours of work clause until 10 December. The NFF resiled from that position to reach agreement with the Horticulture Council of Australia in their later “joint draft” submitted on 10 December 2008. 109.The AiGroup submitted a draft Horticulture Industry Award 2010 on 24 November 2008. The AiGroup draft award provided:

24.2 Ordinary hours of work (a) Subject to clause 23.3, the ordinary hours of work for day workers are an average of 38 per week but not exceeding 152 hours in 28 days. (b) The ordinary hours of work may be worked on any day or all of the days of the week, Monday to Sunday. (c) The ordinary hours of work are to be worked continuously, except for meal breaks, at the discretion of the employer between 6.00 a.m. and 6.00 p.m. The spread of hours (6.00 a.m. to 6.00 p.m.) may be altered by up to one hour at either end of the spread, by agreement between an employer and the majority of employees concerned or, in

24

appropriate circumstances, between the employer and an individual employee. (d) Any work performed outside the spread of hours must be paid for at overtime rates.

110.AiGroup and the NFF are both organisations which have represented the industrial interests of employers in the Horticulture Industry and serviced awards within that industry. Both these employer parties have submitted draft awards with less flexible spread of hours provisions than the hours of work provisions in the exposure draft Horticulture Industry Award 2010. The hours of work provisions in the AiGroup and the NFF draft are based on the Horticultural Industry (AWU) Award 2000 - AP784867CRV – Fed. 111.The AWU submits that the maximum ordinary hours per day should be 8 hours, after which overtime rates should apply. As a secondary submission and an alternative provision to the hours provisions submitted in the AWU drafts provided to the Commission on 24 November and 10 December 2008, the AWU provides the following clause for the Commission to substitute for clause 22.3 of the Exposure Draft: Horticulture Award 2010:

“22.3 Spread of Hours

Ordinary hour may be worked between 6:00am and 6:00pm for up to 8 hours per day, on any five days Monday to Saturday inclusive. Any work performed outside the ordinary hours must be paid for at overtime rates.”

112.The AWU submits that the above clause would provide the industry with the flexibility required without disadvantaging the vast majority of employees in the industry in thew states of NSW, Victoria, South Australia and Tasmania. 113.The AWU submits that the Commission has erred in drafting clause 22.3 of the Exposure Draft Horticulture Industry Award 2010. The AWU submits that the Commission has overlooked the need to balance working hours provisions which are obviously chosen from the Horticultural Industry (State) Award (NSW) with the bulk of the provisions in the exposure draft abstracted from the Horticultural Industry (AWU) Award 2000 - AP784867CRV – Fed. Horticulture – Overtime – Clause 23.2 114.Clause 23.2 provides employees with an entitlement to one paid ten minute rest break each day. Clause 2 (3) (a) (iv) of the Horticultural Industry (State) Award (NSW) specifies that employees will receive 20 minutes in paid rest breaks per day. The AWU submits that as the hours of work provision in the exposure draft is modelled from the Horticultural Industry (State) Award (NSW), so too should the paid rest break provision in the Exposure Draft Horticulture Industry Award 2010. The AWU submits that the Commission has overlooked the need to balance working hours provisions which are obviously chosen from the Horticultural Industry (State) Award (NSW) with the bulk of the provisions in the exposure draft abstracted from the Horticultural Industry (AWU) Award 2000 - AP784867CRV – Fed.

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Horticulture – Overtime – Clause 24.1 115.There is no evidentiary basis for the exposure draft overtime provision clause 24.1. Clause 24.1 of the exposure draft sets the overtime rate at 150% for all overtime except on a Sunday when the rate will be 200%. Apparently, consideration has not been given to the majority of awards in the Commission’s list. Clause 24.1 of the exposure draft is not a rationalisation of current overtime provisions. The vast majority of employees will be disadvantaged by the operation of this provision. 116.Overtime is paid at the rate of 150% for the first two hours and 200% for any time after that in following relevant awards:

• Horticultural Industry (AWU) Award 2000 - AP784867CRV – Fed – Schedule A Respondents

• Horticultural Industry (State) Award - AN120247 – NSW • Mushroom Industry Employees State AN120357 - NSW • Hop Industry Award 2001 -AP811240 – Tas • The Dried Vine Fruits Industry Award, 1951 - AN160101 - WA

117.Overtime is paid at the rate of 150% for the first three hours and 200% for any time after that in following relevant awards:

• Fruit and Vegetable Growing Industry Award - State 2002 - AN140126 – Qld

• Farming and Fruit Growing Award AN170032 – Tas • Fruit Growing and Fruit Packing Industry Award, The - AN160134 –

WA • Tea Industry Award – State – Qld.33

118.Only schedules B and C to the Horticultural Industry (AWU) Award 2000 award have an overtime provision which corresponds with the overtime provision in the Exposure Draft Horticulture Industry Award 2010. This provision is balanced in the Horticultural Industry (AWU) Award 2000 - AP784867CRV – Fed by the restriction on ordinary working hours at clause 26.2 of that award. In the exposure draft no such balance exists as the exposure draft draws on the Horticultural Industry (State) Award - AN120247 – NSW hours of work clause. The AWU submits that undue emphasis has been placed by the Commission on the hours provisions of the Horticultural Industry (State) Award - AN120247 – NSW without due attention being paid to corresponding and related overtime provisions in that award. 119.The AWU strongly submits there is no power to reduce conditions of workers in the Award Modernisation request or the within the capacity of the Commission under the Act. This clause reduces conditions and does not achieve the objectives of the Award Modernisation request. In addition to the significant disadvantage to employees currently under the Horticultural Industry (AWU) Award 2000 - AP784867CRV through vast employer respondency across South Australia, New South Wales, Tasmania and common rule application in Victoria, all employees in the state of New South Wales will be disadvantaged under the Horticultural Industry (State) Award - AN120247 – NSW. 33 The AWU is not aware of anyone using this award.

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120.If the Commission attempted to draft an hours of work provision with the intention of striking a balance between the awards applying to the industry, and the Horticultural Industry (State) Award - AN120247 – NSW was chosen as the model for the exposure draft provision clause 22.3, then the overtime provision in the Horticultural Industry (State) Award - AN120247 – NSW should have been retained. There is a significant balance between the overtime clause and the hours of work clause in that award. 121.The AWU’s primary submission is that all work on weekends should be paid at overtime rates and that clause 22.3 should be redrafted so that ordinary time can only be worked on Monday to Friday between 6am and 6pm. In the event that the Commission does not redraft clause 22.3 as submitted by the AWU (so that all weekend work would be overtime) we provide the following overtime clause for the inclusion in the award by the Commission:

“24. Overtime and penalty rates

24.1 The rate of pay for overtime will be at the rate of 150% for the first two hours and 200% thereafter. The rate of pay for all overtime worked on a Sunday will be paid at the rate of 200%.

24.2 An employee may elect to take time off duty, with pay, for a period equal to the overtime worked instead of payment.

24.3 All employees required to work on a Sunday will be paid for a minimum of four hours.”

Horticulture – Pieceworkers – Clause 15 122.The Commission again chose a rate for piecework in the exposure draft which could only relate to the Federal AWU Horticultural Award. This clause prescribes a 12.5% rate for pieceworkers despite the fact that the hours of work provision of the Award relates to the Horticultural Industry (State) Award - AN120247 – NSW is the basis for the time rate of pay provision underlying the piece rate. Clause 7 of the Horticultural Industry (State) Award - AN120247 – NSW provides for a piecework rate 15% above the prescribed time rate. The exposure draft rate for pieceworkers (12.5%) is the lowest rate for piecework across all of the awards in the Commission’s list and the rate relates to the “minimum amount payable”. Under the Fruit and Vegetable Growing Industry Award - State 2002 - AN140126 – Qld clause 4.5 pieceworkers are paid 20% “above the hourly rate”. The Hop Industry Award 2001 provides for 20% above the time rate and the Tea Industry Award provides for piecework rates at 30% above the time rate. 123.The Queensland Fruit and Vegetable Growing Industry Award - State 2002 - AN140126 also provides for a protective provision which ensures that in no case shall a full-time employee be paid less than the minimum weekly rate and that shall apply pro rata to part-time and casual employees. The clause the Commission drafted in the exposure draft Horticulture Award 2010 no longer retains the definitions for casuals or pieceworkers at 4.6 of Horticultural Industry (AWU) Award

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2000 - AP784867CRV – Fed.34 The terms of the exposure draft allow for pieceworkers to be engaged as permanent and part time workers. This was not allowed under the Horticultural Industry (AWU) Award 2000 - AP784867CRV – Fed, where all piece workers were engaged as casuals. The AWU submits that the protection provisions in the Queensland Award should be included in the exposure draft to accommodate the potential for pieceworkers to be engaged as permanent or part time employees. The AWU provides the following clause to be included in lieu of the piecework clause in the Commission’s exposure draft:

“15. Piecework rates

15.1 Piecework rates may be fixed by agreement between the employer and the employee.

15.2 The rates must be fixed so that the average competent employee can earn no less than 15% above the minimum amounts payable for the work performed by the employee concerned in accordance with the terms of this award.

15.3 When work is performed at piecework rates in accordance with an agreement made between the employer and the employee the piece work rates will apply instead of the amounts which would otherwise be payable in accordance with the terms of the award for the work performed. However, in no case shall a full-time employee be paid less than the minimum weekly rate prescribed in this award. Provided that this provision shall also apply pro rata to part-time and casual employees.

15.4 Piecework rates for employees, other than for casual employees, do not include payment instead of any other benefits provided for by this award.

15.5 Where minimum remuneration falls below the time minimum earnings for more than 3 consecutive ordinary working days, the piecework agreement may be terminated by either party.

124.The AWU is concerned that since the Commission has provided for permanent and part-time workers to be pieceworkers under the Horticultural Industry Award 2010, that those pieceworkers must have the ability to terminate the piecework agreement where it is unfair and disadvantageous. Those pieceworkers may be moved onto a piece work agreement after significant service and their termination of the piecework arrangement should not necessarily terminate the engagement itself. These issues were presented to Commissioner Lewin during the pre-drafting consultations. 125.The AWU understands that HAC will be making submissions opposing the payment of the 25% casual loading on top of the 12.5% piecework rate within the exposure draft. On 12 December 2008 the AWU handed Commissioner Lewin a document which detailed the calculation for the piecework rate under the 34 Horticultural Industry (AWU) Award 2000 - AP784867CRV 4.6 Pieceworker means a casual employee engaged and paid as such and/or paid by results under 15.5 or 18.4 of this award.

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Horticultural Industry (AWU) Award 2000 - AP784867CRV – Fed. This document was provided to the AWU by the TFGA and the NFF. The TFGA and the NFF have been responsible for servicing the award for the employers, HAC has not. The document clearly showed calculation of the payment of the 25% casual loading in addition to the 12.5% above the minimum amounts payable for time work. The payment of such a low rate of 12.5% for pieceworkers under the Horticultural Industry (AWU) Award 2000 - AP784867CRV, is a result of the operation of clause 4.2 of the definitions section in that award35 which defines pieceworkers as casual workers as engaged as casuals or paid as pieceworkers. All employees paid as pieceworkers under the (AWU) Award 2000 - AP784867CRV are therefore casuals entitled to 25% casual loading. The AWU is also concerned that Commission has overlooked the application of overtime and increased ordinary time rates for pieceworkers under the Horticultural Industry (State) Award - AN120247 – NSW. The AWU submits that if the Commission is to include the ordinary hours provisions in that award then the Commission must also include the piecework application clauses related to the increased rate for pieceworkers for Saturdays and Sundays. 126.Pieceworkers are not defined in the exposure draft award. For the purposes of clarity and for the avoidance of doubt, the AWU submits that the Commission should include the following definition for a pieceworker within the definitions section at 3.1 of the Horticulture Award 2010:

“Pieceworker means employee engaged and paid by results under clause 15 of this award.”

Horticulture – Pieceworkers – Clause 25 and the NES 127.The NES apply to piece workers.36 Clause 19 of the Commission’s 23 January Statement requests that parties consider the provision of payment for leave for pieceworkers:

“[19] Clauses 43 to 45 of the consolidated request refer to piece workers and to the interaction between modern awards and the entitlements in the National Employment Standards (NES). A number of Stage 2 industries have piece workers. We ask interested parties to address the matters raised in cll.44 and 45 of the consolidated request during the consultations.”

128.The Horticultural Industry (AWU) Award 2000 - AP784867CRV – Fed provides for annual leave to be paid for piece workers by the weekly average of payments made to the employee for the period prior to the time of going on leave or termination of employment. AWU has addressed the issue in light of clause 25 the Commission has drafted in the exposure draft and supports the Commission’s approach to the payment for annual leave and the payment of annual leave loading for pieceworkers, which is linked by clause 25.6 of the Exposure Draft Horticulture Award 2010.

35 Horticultural Industry (AWU) Award 2000 - AP784867CRV 4.2 Casual employee means an employee who is:

[14.2 varied by PR936860 ppc 28Jul03] 4.2.1 engaged under 13.2 or 15.4 of this award; or 4.2.2 paid as a pieceworker under 15.5 of this award.

36 Consolidated Request Paragraph 44

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Horticulture – Pieceworkers – Clause 26 and the NES 129.The NES apply to piece workers.37 Pieceworkers other than casuals are entitled to 10 days paid personal/carer’s leave as provided for under the NES. However, clause 26 of the Exposure Draft Horticulture Award 2010 does not provide for the rate of pay for pieceworkers for the days of leave they will take under that clause. The AWU submits that the same approach taken by the Commission for the payment of annual leave for pieceworkers, at clause 25.5(b), should be taken in respect of paid personal/carer’s leave for pieceworkers. The AWU has drafted the following clause for the Commission to include in place of clause 26 in the Exposure Draft Horticulture Award 2010. The changes are highlighted in grey for the Commission’s reference:

“26. Personal/carer’s leave and compassionate leave 26.1 Personal/carer’s leave and compassionate leave are provided for

in the NES. 26.2 An employee employed on piece or bonus work, or any other

system of payment by results, must be paid the rate which is the weekly average of payments made to the employee for the period actually in respect of which such payments have been calculated prior to the time of taking personal/carer’s leave, as the case may be during any period of annual leave.

130.The AWU submits that similar changes need to be made across all of the leave provisions to accommodate the NES and the fact that employees other than casuals can now be paid under piece work arrangements. Horticulture – Superannuation 131.The AWU submits that the Commission include the following clause at clause 21.1 of the Horticulture Industry Award 2010:

"Ordinary time earnings" for the purposes of clause 21.1 means the actual ordinary rate of pay the employee receives for ordinary hours of work. It includes, as applicable, full-time, part-time or casual Award rates, overaward payments, agreed piecework rates, Leading Hand and other extra rates.”

132.The AWU submits that AustralianSuper should be named as a default fund in clause 21.4 of the Exposure Draft Horticulture industry Award 2010. AustralianSuper are a named default fund in the awards within the Commission’s list which will be superseded by the Exposure Draft Pastoral industry Award 2010. Horticulture – Allowances – Clause 17.1

37 Consolidated Request Paragraph 44

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133.The exposure draft omitted the following allowances. These allowances were not disputed by interested parties in the pre-drafting process. The AWU believes that the failure to include the allowances is a result of oversight:

“ (b) First aid allowance

An employee who has been trained to render first aid and who is the current holder of appropriate first aid qualifications such as a certificate from the St. John’s Ambulance or similar body must be paid 86% of the standard rate per week extra if appointed by their employer to perform first aid duty.

(c) Meal allowance

An employee required to work overtime for more than two hours after the employee's ordinary ceasing time without having been notified before leaving work on the previous day that the employee will be required to work overtime, will be provided free of cost with a suitable meal, and if the work extends into a second meal break another meal, provided that in the event of the meal not being supplied the employee is entitled to a payment of $10.55 per week extra for each meal not supplied. “

Horticulture – Casual Conversion

134.The Horticultural Industry (AWU) Award 2000 - AP784867CRV – Fed provides for casual conversion. The AWU submits that there is an established industry standard within the Horticulture Industry and casual conversion clauses are required to maintain that standard.

Cotton Ginning – Award

135.There is no scope of hours in clause 21 of the Exposure Draft Cotton Ginning Award 2010. Clause 1 (a) of the Cotton Ginning & Cotton Employees (State) Award (NSW Award) provides that ordinary hours will be worked Monday to Friday inclusive between the hours of 6am 8pm.

136.There is only provision for one paid rest break in clause 22.1 (b) of the Exposure Draft Cotton Ginning Award 2010. Clause 19 (2) of the NSW Award provides employees with an entitlement to two paid rest breaks of 10 minutes duration each day.

137.There is no provision for a shift allowance in clause 24 Exposure Draft Cotton Ginning Award 2010. Under the NSW Award, night workers (6:00pm -8:00am) receive a loading of 15%.

138.Clause 23.1 (a) of the Exposure Draft Cotton Ginning Award 2010 provides that payment for overtime will be time and a half for the first three hours and double time thereafter. Clause 6 (1) provides of the NSW Award provides that

31

overtime will be paid at time and a half for the first 2 hours and double time thereafter.

139.Clause 7(1) of the NSW Award also provides that all work performed on Saturday will be paid at time and a half for the first two hours and double time thereafter. Under the modern award an employee would have to work 3 hours on Saturday to receive double time. 140.Clause 24 is taken straight from the Cotton Ginneries, Cotton Oil and Other Seed Oil Manufacturing employees Award - State 2003 (QLD). The NSW Award provides for day workers and night workers with night workers receiving a loading of 15%. Employees in NSW are having the Queensland shift conditions imposed upon them and are losing their night work allowance.

Nursery Industry Award 2010

Nursery Industry Award 2010 – Scope

141.The AWU understands that the SDA will be making submissions opposing the scope of a Nursery Industry Award 2010. The AWU intends to address scope issues in the Nursery Industry Award 2010 at the exposure draft consultations. The AWU is concerned with rates of pay for staff performing retail duties of a specified and dedicated nature may receive lower rates of pay than under the retail award as a result of the breadth of scope in the Nursery Industry Award 2010 applying to retail nurseries generally.

142.The Commonwealth Government submission to the Full Bench on Award Modernisation, at paragraph 70, provides that where the Commission includes the same occupation in more than one industry award, it is desirable that, so far as practicable, the terms and conditions for that occupation are consistent across the relevant industry awards.

Nursery Industry Award 2010 – Rates of Pay 143.The AWU submits that the rates of pay in the Nursery Industry Award 2010 should be amended to read:

1- $564.58 2- $585.48 3- $600.00 4- $637.60 5- $707.07 6- $772.34

144.These changes to the Level 1 & 2 rates would bring the exposure draft in line with the minimum rates contained in Part B, Table 1 of the Nurseries Employees (State) Award (with AFPC increases of $59.28 added).

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145.Clause 21.2 (a) of the Exposure Draft Nursery Industry Award 2010 contains no reference to Monday-Friday in the ordinary hours of work.

146.The Plant Nurseries Award (Tas) provides for ordinary hours to be worked

Monday to Friday, 6am-6pm, with full-time employees entitled to time and a quarter

for ordinary hours on Saturdays and time and half for Sundays. Casual employees

are entitled to time and half for the first two hours and double time thereafter on

Saturdays, and double time for all work on Sundays.

147.The Nursery Award – State 2003 (Qld) provides for ordinary hours to be worked

Monday to Sunday, 5am-7pm, with time and a quarter for ordinary hours on

Saturday and double time on Sundays. The clause is extremely complex and there

are different ordinary hours provisions for the wholesale, retail, landscaping, plant

and turf growing.

148.The Horticulture Industry (Nursery & Landscape) Award (SA) provides for

ordinary hours Monday to Sunday, 6am-6pm, with time and half for ordinary hours

on Saturdays and double time on Sundays;

149.The Horticultural (Nursery) Industry Award No. 30 of 1980 provides for ordinary

hours to be worked any five days in seven, 6am to 6pm (or 6am-9pm for late-night

shopping), time and a half for ordinary hours on Saturday and Sunday

150.The Nurseries Employees (State) Award provides for ordinary hours to be

worked Monday to Sunday, 6am-6pm, with time and a quarter for ordinary hours on

Saturdays and time and a half on Sundays.

151.Clause 10.2 of the Exposure Draft Nursery Industry Award 2010 refers to full-time employment being “38 hours per week or a lower number of hours which are regarded as the full-time hours at a particular workplace”. There is no reference to less than 38 hours for full-time employees in any NAPSA and this reference needs to be removed. Full-time work is 38 hours.

152.The AWU submits that the hours of work provision in the AWU’s draft Nursery Industry Award 2010, which was provided to the Commission on 15 December 2008 should be used as the basis for the exposure draft Nursery Industry Award 2010.

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153.Clause 21.2 (d) of the Exposure Draft Nursery Industry Award 2010 states that the rate for ordinary time worked on a Saturday is 125%. Clause 10 (3) of The Horticultural (Nursery) Industry Award (WA) and clause 6.1.2 of the Horticulture Industry (Nursery and Landscape) Award (SA) provide for 150%

Nursery Industry Award 2010 – Overtime

154.Clause 23.1 of the Exposure Draft Nursery Industry Award 2010 states that overtime will be paid at time and a half for the first 3 hours and double time thereafter. Clause 6 (a) of the Nurseries Employees (State) Award (NSW) provides for double time after 2 hours of overtime as does clause 12 (1) of The Horticultural (Nursery) Industry Award (WA)

Nursery Industry Award 2010 – Meal Allowance

155.Clause 18.1(b) of the Exposure Draft Nursery Industry Award 2010 specifies that a meal allowance will be paid after 2 hours of overtime. Clause 18 of the Nurseries Employees (State) Award (NSW) and Part IV clause (1) (c) of the Plant Nurseries Award (Tas) entitle an employee to the meal allowance after 1 ½ hours of overtime

Nursery Industry Award 2010 – Allowances

156.Clause 14.5 of the Exposure Draft Nursery Industry Award 2010 is ambiguous in relation to higher duties. There is reference to 2 hours and then to 4 hours. Higher duties should be paid for the whole shift if more than 2 hours are worked or for the time engaged if less than 2 hours: see clause 20 of the Nurseries Employees (State) Award (NSW) and clause (3) of the Plant Nurseries Award (Tas)

157.There is no reference to a leading hand allowance in the Exposure Draft Nursery Industry Award 2010. Clause 5 (3) of The Horticultural (Nursery) Industry Award (WA) and clause 5.3.4 of the Nursery Award- State 2003 (QLD) contain leading hand allowances. 158.The following allowances/rates have been excluded from the modern award:

‐ Motor Vehicle Allowance: clause 5.2.2 of the Horticulture Industry (Nursery

and Landscape) Award (SA)

34

35

‐ Location Allowances: clause (6) (1) of The Horticultural (Nursery) Industry Award (WA)

‐ District Allowances: clause 5.3.6 of the Nursery Award- State 2003 (QLD) ‐ Wet Weather Work provision: clause 10.2 of the Nursery Award- State

2003 (QLD) ‐ Work in the Rain Payment: clause 10.3.1 of the Nursery Award- State

2003 (QLD) ‐ Special Rate for Chemicals: clause (1) (d) of the Plant Nurseries Award

(Tas)

Nursery Industry Award 2010 – Minimum Engagement

159.Clause 10.3 (e) of the Exposure Draft Nursery Industry Award 2010 contains a minimum engagement for part-time employees of 3 hours. Clause 4.1.3.2 of the Horticulture Industry (Nursery and Landscape) Award (SA) contains a minimum part-time engagement of 4 hours as does clause 2 (b) (iv) of the Plant Nurseries Award (Tas) amoung other Nursery Industry awards.

160.Clause 10.4 (e) of the Exposure Draft Nursery Industry Award 2010 contains a minimum engagement for casual employees of 3 hours. Clause (2) (c) (iv) of the Plant Nurseries Award (Tas) and clause 4.3.2 of the Nursery Award- State 2003 (QLD) provide for a minimum engagement of 4 hours.

161.Clause 23.3 Exposure Draft Nursery Industry Award 2010 states that the minimum engagement on a call back to work overtime is 3 hours. Part V clause (2) (e) of the Plant Nurseries Award (Tas) provides a minimum call back engagement of 4 hours.

Exposure Draft Silviculture Award 2010

162.Clause 19.2 of the exposure draft identifies the industry allowance as 147% of the Standard Rate. The standard rate is worker grade 3 which is $619.50.The Industry allowance should actually equate to $24.00 per week. The clause should therefore be amended to refer to 0.03874% of the standard rate. 163. In clause 19 (a),(b),(c) the exposure draft refers to a an allowance of $11.30 per day. The allowance is based on the Tasmanian NAPSA .The Tasmanian Award which is the basis of the NAPSA has not been updated in relation to this allowance for a number of years. The allowance is actually aligned to the travel allowance for Tasmania in the AWU Construction and Maintenance Award. The correct figure is actually $15.60 per day. The exposure draft should be amended to reflect the $15.60 per day.

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Attachment A – Table with the calculations relating to proposals other than reducing the divisor to 95 from 100.

Current Rates (Transitional)

Expressed as percentages of per 500 rate

Pre-reform equivalents

5%increase on Pre-reform base rate with 5% decrease on combs, cutters and handpiece

5% increase on Pre-reform base rate with current combs, cutters and handpiece AWU Proposal

Min rate 571.65

48.90

575.97 604.77

604.77 600.23

Plus 20% piecework

114.33

9.78

115.19 120.95

120.95 120.05

Plus 25% Casual Loading

142.91

12.22

143.99 151.19

151.19 150.06

Sub total 828.89

70.90

835.16 876.92

876.92 870.33

Plus industry allowance

180.01

15.40

181.37 181.37

181.37 180.01

Plus rations 46.08

3.94

46.43 46.43

46.43 46.08

Plus allowance for combs/cutters

93.09

7.96

93.79 89.10

93.79 93.09

Plus payment for handpiece

21.04

1.80

21.20 20.14

21.20 21.04

Weekly total (500 sheep)

1,169.11

100.00

1,177.95 1,213.96

1,219.71 1,210.55

Rate per 100 233.82

20.00

235.59 242.79

243.94 242.11

Increase = 7.20 8.35 8.29

Clauses Horticultural Industry (State) Award - AN120247 - NSW

Fruit and Vegetable Growing Industry Award - State 2002 -

AN140126 - Qld

The Dried Vine Fruits Industry Award, 1951 - AN160101 - WA

Hop Industry Award 2001 -AP811240 -Tas

Mushroom Industry Employees State AN120357 - NSW

The Dried Vine Fruits Industry Award, 1951 - AN160101 - WA

Farming and Fruit Growing Award AN170032 - Tas

Fruit Growing and Fruit Packing Industry Award, The - AN160134 -

WASchedule A respondents Schedule B & C respondents

Hours of Work - ordinary 40 hrs in 5 days, except Sunday.40 hours in 5 & half days December-January, Feb-May for fruit picking [cl 26.1].

152 hrs in 4 weeks.Not exceeding 8 hrs per day except by agreement & rostering arrangements. 6am-6pm Monday to Friday. [cl 26.2]

38 per week. 5am to 8pm, Monday to Sunday.Ordinary hours may be worked: (i) Five equal days of five and one-half days per week. (ii) 19 equal days in a 20-day cycle. (iii) Four equal days and one short day per week. (iv) No more than 20 days are worked in a 28 consecutive day period. [cl 2 (1)] Saturday ordinary time rates time and one-quarter. Sunday ordinary

40 in any 7 days or 8 hours in any one day to be worked on any 5 days out of 7. Not less than 2 full days off shall be allowed in each week of 7 days. No averaging provisions. [cl 6.1]

40 per week to be worked in five days, Monday to Friday. Shall not exceed 8 hours a day. [cl 17]

Average of 38 per week to be worked over a span not exceeding 28 days Monday to Friday, organisation of hours shall be agreed between an employee and the employer. [cl 23]

38 per week. 5am to 8pm, Monday to Sunday.Ordinary hours may be worked: (i) Five equal days of five and one-half days per week. (ii) 19 equal days in a 20-day cycle.(iii) Four equal days and one short day

per week. (iv) No more than 20 days are worked in a 28 consecutive day period. [cls 3] Saturday ordinary time rates time and one-quarter. Sunday ordinary time worked on a shall be time and one-half.

Not exceed forty per week to be worked in five days, Monday to Friday. Shall not exceed 8 hours a day. [cl 17]

Average of 38 hours per week Monday to Friday [cl19].

40 hours per week for fruit packing and sorting employees.[Cl 10(1)]Fruit growing and fruit picking employees additional pay rates for hours worked over 40 hours per week, and additional rates in excess of 52 hours per week. [Cl 10(2)]

Horticultural Industry (AWU) Award 2000 - AP784867CRV - Fed

and one quarter. Sunday ordinary time worked on a shall be time and one-half. (sat and sun increased rates for pieceworkers) [cl 9]

worked on a shall be time and one half. (sat and sun increased rates for pieceworkers) [cl 3]

Maximum Daily hours 8 ordinary hours, 12 maximum [cl 26.1]. 8 ordinary hours can be worked on a day, any over 8 by agreement, 12 max. [cl 26.2]

10 hours maximum [cl 2 (1)]. 8 ordinary hours . [cl 6.1] 8 hours Casual max 12 with requirements [23.4] 10 hours. Shift workers 8 hour shifts [cls 3]

8 hours Maximum of 8 consecutive hours per day (can be extended to 10 hours by agreement) - [cl 19]

8 ordinary hours fruit packers and fruit sorters. [cl 10(1)]

Span Days Monday to Friday [cl 26.1] Monday to Friday [cl 26.2] Monday to Sunday [cl 2 (1)] 5 days of 7 and not exceed 40 hours in 7 days [cl 6.1]

Monday to Friday [cl 17] Monday to Friday. [cl 23.1.1] Monday to Sunday [cl 3] Monday to Friday [cl 17] Monday to Friday - [cl 19] Monday to Friday fruit packers and fruit sorters [cl 10]

Span Hours 6am-6pm [cl 26.1]. 6am-6pm [cl 26.2] 5am-8pm [cl 2 (1)] 7am-6pm [cl 17] 5am-8pm [cl 3] 7am-6pm [cl 17] 6am - 6pm - [cl 19] 7am 5pm fruit packers and fruit sorters [ 10]

Overtime Monday to Saturday – time and a half for two hours, double time after. Sundays shall be paid for at the rate of double time. [cl 26.2]

Monday to Saturday – time and a half. Sundays shall be paid for at the rate of double time. [cl 26.2]

Monday to Saturday – time and a half for two hours, double time after. Sundays shall be paid for at the rate of double time minimum of four hours. Applies to time workers and pieceworkers (overtime rates for pieceworkers). See ordinary time rates for sat and sun rates when not overtime clause 9

All time over 8 hours worked time and a half for the first 3 hours and double time after. [cl 6.4]

Monday to Friday and prior to 12.00 noon on Saturday at rate of time and a half for the first two hours and double time after.Saturdays after 12 noon and on Sundays shall be paid for at the rate of double time. [cl 19]

Monday to Saturday – time and a half for two hours, double time after. Sundays shall be paid for at the rate of double time. [cl 9]

Time and one-half for the first two hours and double time thereafter (overtime rates for pieceworkers) See ordinary time rates for sat and sun rates when not overtime [cl 9]

Monday to Friday and prior to 12pm on Saturday at rate of time and a half for the first two hours and double time after.Saturdays after 12 noon and on Sundays shall be paid for at the rate of double time. [cl 19]

Time and half for the first 3 hours and double time after [cl 18]

Monday to Friday rate of time and one half for the first two hours and double time thereafter. Sat before 12pm shall be paid for at the rate of time and one half for the first two hours and double time thereafter and all such time worked on a Saturday after 12.00 noon or on a Sunday shall be paid for at the rate of double time

Piecework 12.5% above the prescribed rate - agreement to earn at least. Casual employee means an employee who is paid as a pieceworker under 15.5 of hi d Pi k

12.5% above the prescribed rate - agreement to earn at least. Casual employee means an employee who is paid as a pieceworker under 15 5 f hi d Pi k

15% above the prescribed time rate.(overtime rates and increased sat and sun ordinary time rates apply for pieceworkers)

20% above the hourly rate. Agreements - fixed and reviewed as necessary so as to enable the average competent employee. In no case shall

f ll i l b id l h

Paid at least the time rate of pay apportioned if necessary. [cl 23]

20% per cent above the prescribed time rate. [17]

15% above the prescribed time rate.(overtime rates and increased sat and sun ordinary time rates apply for pieceworkers) [cl 5]

Paid at least the time rate of pay apportioned if necessary. [cl 23]

12.5% more than the hourly equivalent for an employee classified as Farm and/or Orchard Hand Level 2 (as defined). [cl 5]

15% above the hourly rate of the class of work performed. Such hourly rate to be ascertained by dividing the appropriate weekly rate by 40. [cl 25]

this award. Pieceworker means a casual employee engaged and paid as such and/or paid by results under 15.5 or 18.4 of this award. [cl 28]

15.5 of this award. Pieceworker means a casual employee engaged and paid as such and/or paid by results under 15.5 or 18.4 of this award. [cl 28]

a full-time employee be paid less than the minimum weekly rate and shall apply pro rata to part-time and casual employees. Where minimum remuneration falls below the time minimum earnings for more than 3 consecutive ordinary working days, the piecework agreement may be terminated by either party. [cl 4.5]