2024 WAIRC 00130
REVIEW OF FARM EMPLOYEES' AWARD PURSUANT TO S 40B OF THE INDUSTRIAL RELATIONS ACT 1979 (WA)
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00130

CORAM
: SENIOR COMMISSIONER R COSENTINO

HEARD
:
MONDAY, 25 MARCH 2024

DELIVERED : MONDAY, 25 MARCH 2024

FILE NO. : APPL 58 OF 2022

BETWEEN
:
COMMISSION'S OWN MOTION
Applicant

AND

(NOT APPLICABLE)
Respondent

CatchWords : Industrial Law (WA) – Award variations on Commission’s Own Motion under s 40B – Farm Employees' Award – Hours of Work – Minimum hours for part-time employees – Special provisions for part-time employees in dairy farms
Legislation : Industrial Relations Act 1979 (WA) s 40B
Result : Award varied
REPRESENTATION:

Mr B Entrekin on behalf of the Hon. Minister for Industrial Relations

Mr C Dunne of counsel and with him Ms A Martina on behalf of the Australian Workers’ Union, West Australian Branch, Industrial Union of Workers

Ms J Corkhill of counsel on behalf of the Western Australian Farmers Federation (Inc)

Case(s) referred to in reasons:
COMMISSION’S OWN MOTION V (NOT APPLICABLE) [2023] WAIRC 00901
Commission’s Own Motion v (Not Applicable) [2023] WAIRC 00912

Reasons for Decision

1 On 8 May 2023, the Commission made some variations to the Farm Employees’ Award and adjourned the determination of other proposed variations until after the determination of CICS 18 of 2022: Commission’s Own Motion v (Not Applicable) [2023] WAIRC 00901. Specifically, the Commission adjourned the proceedings to later deal with and determine:
(a) variations to clause 5 ‘Hours of Work’ dealing with minimum hours on shift for part-time employees, and exceptions to such minimum hours for employees who perform work of dairy operators, if applicable;
(b) transitional provisions for implementation of annual leave loading in the dairy industry, if applicable;
(c) transitional provisions for implementation of minimum engagement requirements for part-time employees in the dairy industry, if applicable; and
(d) the inclusion of classifications for employees who perform work of dairy operators, if applicable.
2 Orders were made in CICS 18 of 2022 on 21 November 2023 varying the scope of the Award. Part of the scope variations include the addition of dairy farm employees, with effect from a date yet to be fixed: Commission’s Own Motion v (Not Applicable) [2023] WAIRC 00912. It is anticipated that the Commission in Court Session will now make orders for the Schedule 2 scope variations in CICS 18 of 2022 to take effect from 1 July 2024.
3 In light of this expansion of the scope of the Award to cover dairy farm employers and employees, the Western Australian Farmers Federation (Inc) (WAFarmers) and the Australian Workers’ Union, West Australian Branch, Industrial Union of Workers (AWU) conferred in relation to the adjourned matters listed above. The parties reached a consensus position that:
(a) there be provision for minimum hours on shift for part-time employees, but that dairy farm employees be exempt from such minimum in light of the nature of dairy farm operations;
(b) as a protection of part-time dairy farm employees in the absence of minimum periods of engagement, there be specific requirements for specifying the terms of part-time employees’ engagement at the commencement of the engagement.
(c) there is no need for transitional provisions for the dairy industry, on the basis that the variations would commence from 1 July 2024 which was sufficient time for the dairy industry to prepare for the changes; and
(d) there is no need to include additional classifications for employees who perform work of dairy operators, such employees being appropriately covered by the existing classification ‘farm hand’.
4 I am grateful to WAFarmers and the AWU for their cooperative approach, their time, and detailed consideration of the issues. The consensus position reached achieves an appropriate balance of the interests of employers and employees.
5 The consensus variations are set out in the Schedule to these reasons. I am satisfied that the variations are desirable to ensure the Award is consistent with the facilitation of the efficient organisation and performance of work according to the needs of the industry and enterprises within it, balanced with fairness to employees in the industry, and that orders should therefore be made to make the variations, with effect from 1 July 2024.

SCHEDULE

1. Clause 4 ‘Definitions’:

Add the following new definitions in clause 4:

(ia) “dairying” means the management, housing, breeding, rearing and grazing of livestock for milk production and associated purposes.

(ib) “dairy season” means the period(s) of time when work is performed in any one or more of the activities of joining, drying off, reproduction, rearing of young stock, milking, seeding and fodder harvesting.

NOTE: As at least one of the activities listed in the definition of “dairy season” occurs on any given day, every day of the year falls during a dairy season.

2. Clause 5 ‘Employment Relationship’:

Delete sub-clauses (6)(8) in clause 5 and insert in lieu thereof the following clauses (6)(10):

(6) Except in dairying, at the time of engagement the employer and the part-time employee will agree in writing on a regular pattern of work, specifying at least:

(a) the hours worked each day;

(b) which days of the week the employee will work; and

(c) the actual starting and finishing times each day.

(7) At the time of engagement of part-time employees in dairying, the employer and the part-time employee will agree in writing on:

(a) the expected start date and the expected end date of each applicable diary season;

(b) the days of the week on which the employee may be required to work during each applicable dairy season;

(c) the range of daily hours during which the part-time employee may be required to work during each applicable dairy season; and

(d) a minimum number of hours which will be worked by the part-time employee on each working day.

NOTE: an employee’s pattern of work may be the same throughout the year, regardless of dairy season(s).

(8) Changes in part-time hours under subclauses (6) and (7) may only be made by agreement in writing between the employer and employee. Any agreed variation to the regular pattern of work will be recorded in writing.

(9) A part-time employee must be paid for ordinary hours worked at the ordinary hourly rate prescribed for the class of work performed.

(10) An employer is required to roster a part-time employee, other than an employee in dairying, for a minimum of 3 consecutive hours on any shift.