On 16 November 2017, a Full Bench of the FWC handed down a decision in a major case concerning the coverage of the Horticulture Award 2010 (Horticulture Award). The case was pursued by Australian Industry Group to protect employers in the horticulture industry from a push by the National Union of Workers to impose warehousing award conditions on horticulture businesses. The claim would have cost horticultural businesses many millions of dollars a year.

A central issue in the case was the concept of the “farm gate” and whether this should be construed as a reference to the physical boundaries of a farm or, as argued by Australian Industry Group, the first point of sale from the producer to a customer (e.g. a retailer or a food manufacturer). When the Horticulture Award came into operation in January 2010, the Commission stated that it was intended to cover activities within the “farm gate”. In its 16 November Decision, the Full Bench accepted Australian Industry Group’s arguments and determined that the “farm gate” is a virtual concept – not a physical location.

Horticultural producers and related entities are typically involved in a series of integrated activities such as growing, picking, cleaning, grading, bagging and then dispatching to supermarkets or food processing companies. The Horticulture Award will now cover all of these activities. Over the past few years, the NUW has endeavoured to force horticulture businesses to apply the inflexible and overly costly conditions in the Storage Services Industry Award to the centralised washing and packing facilities that are common in the horticulture industry.

There was a great deal of evidence heard by the FWC Full Bench in the case, as well as site inspections and many days of hearings. The Commission has varied the coverage clause of the Horticulture Award, retrospectively to 1 January 2010, to clarify the Award’s coverage. The outcome is very important for the horticulture industry.

If you would like more information about the Horticulture Award 2010, please contact Australian Industry Group’s Workplace Advice Service on 1300 55 66 77.

Alternatively, if you would like assistance in dealing with union claims, please contact your local employment, workplace and industrial lawyer in Sydney, Newcastle, Wollongong, Melbourne or Brisbane or email Australian Industry Group Legal at info@aigroupworkplacelawyers.com.au.

If you would like assistance with training and short courses, please find our current training calendar at this link. In addition, Australian Industry Group can develop and conduct specific training programs for your business on a wide range of topics. Please contact Australian Industry Group’s Training on 1300 55 66 77 for further details.