Since 2014 the Fair Work Commission has been reviewing the Horticulture Award with a view to further modernising it. During this review a significant question arose as to the coverage of the Hort Award, specifically whether an off-site packing shed was covered by the Hort Award or the Storage Services and Wholesale Award.
In 2014 and 2015, the Mitolo Group fought its case through the Fair Work Commission arguing that a packing shed that was not located on the farm, should still be covered by the Hort Award. The Fair Work Commission thought otherwise and decided that if the packing shed is not within the “farm gate” then the packing shed component of the enterprise was covered by the Storage Services and Wholesale Award.
The Storage Services and Wholesale Award is nothing like the Hort Award and is completely unsuitable for the average packing house operation.
After months of submissions to the FWC Award Modernisation review committee, the Fair Work Commission handed down its decision on off-site packing sheds on 16 November 2017.
The decision is that the “farm gate” is irrelevant to whether a packing shed will be covered by the Hort Award. Instead, the FWC have proposed that the key issue should be that the packing operation must be run under the same enterprise as the farming operation. The packing operation could also be run by a “related” company as that term is used in the Corporations Act 2001.
Importantly, the FWC have decided that the changes will be backdated meaning that if you are now covered then off-site packing sheds have always been covered by the Hort Award.
What Questions Are Still Outstanding
Stand-alone packhouses that are not owned by farming enterprises may still be caught by the Storage Services and Wholesale Award, unless they can show that they are a “related entity” to a farming enterprise. It is possible that shareholdings could be considered to create that link.
Packing Sheds owned by, say, a farmer’s superfund, might also still be caught by the Storage Services and Wholesale Award as they might not be related entities. The Corporations Act provides for a careful and precise definition of “related entities” which might not fit a common understanding of that term.
What’s Left to Do?
The final precise wording of the changes to the Hort Award have not been settled but it will not change from the general concepts above.
Consider whether your packing shed or packhouse is now covered by the Hort Award or whether there are still doubts.
Contact Michael Waters of MRH Lawyers on 07 41545510 or firstname.lastname@example.org to discuss further.
General Information Only: The contents of this correspondence is meant to be general information only and not specific legal advice, nor should it be relied upon by any person or business.