The Commission, under s 40B of the Industrial Relations Act 1979 (WA), implemented several variations to the Farm Employees Award 1985 to align it with contemporary standards, improve clarity, and ensure fairness for farm employees in Western Australia.

 Key changes included adjustments to wages, leave entitlements, and definitions, as well as the inclusion of provisions related to parental leave and domestic violence leave.

Background

The Commission provided notice of its intention to vary the Award to Unions WA, the Chamber of Commerce and Industry, the Australian Resources and Energy Employer Association, the Minister for Industrial Relations, the Western Australian Farmers’ Federation (Inc) and each of the parties to the Award being the Australian Workers’ Union and all named individual employers.

 The commission subsequently convened a conference to seek input from interested parties about the issues with the Award, and the appropriate drafting revisions to address them. Representatives for the Minister and AWU attended the conference.

 The Commission then published notice of the proposed variations to the Award, pursuant to s 40B(2). The Commission also gave notice to the parties named in s 40B(2) and to the Pastoralists and Graziers Association of Western Australia of a hearing to afford them an opportunity to be heard in relation to the proposed variations.

WA Farmers and PGA applied for and were granted permission to intervene on the basis they each had a sufficient interest in the matter.

Contentions

PGA raised concerns about some of the new requirements in the proposed clause 5 'Hours of Work,' particularly the impact on employers, especially concerning minimum hours for part-time workers and written agreements to vary part-time hours. PGA requested a 12-month transitional period to educate its members and allow employers to make necessary changes.

 WA Farmers, representing the Dairy Council, acknowledged that the Award did not currently cover the dairy farming industry. However, they raised concerns about the potential future coverage of dairy farms and the suitability of the proposed 'Hours of Work' provisions for dairy farming activities like milking and calf rearing.

Findings

The Commission implemented several variations to the Award.

 The Award had not been reviewed or substantively varied in over 25 years, with the most recent substantial variation occurring in 1998. Several clauses of the Award referred to laws and industrial instruments that have since been repealed, superseded or have become obsolete. The Award also referred to persons and organisations no longer in existence and contained gendered language. The variations rectified these issues.

 The Commission made the following specific variations to modernise and align the Award with current legislation and industrial practices while ensuring clarity and consistency in its provisions.

1. Title of the Award: The title of the Award was updated to remove the year of the Award, following current naming practices for awards. Additionally, the reference to the Award replacing a 1946 Award was removed for brevity since it no longer served a useful purpose.
2. Term Clause: The term clause, which defined the duration of the Award, was deleted as it was no longer relevant.
3. Definitions Clause: A new definitions clause was inserted, and definitions from other parts of the Award were moved here for clarity.
4. September 1989 State Wage Principles: Clause 2A of the Award, which dealt with the application of the September 1989 State Wage Principles, was deleted because these principles are no longer in effect.
5. Employment Relationship: Clause 5, previously titled 'Contract of Service,' was renamed 'Employment Relationship.' It was modified to align with the provisions of the Pastoral Industry Award 2020 and includes information about types of employment, employment status, and employment conditions.
6. Wages Records (Clause 10): Clause 10, which dealt with wages records, was modified to align with the requirements of the Act. Additionally, Clause 10(2) was made consistent with the provisions of s 49J of the Act concerning entry to investigate breaches.
7. Farm Tradesman Definition: The definition of 'farm tradesman' has been updated to refer more generally to a person who holds a qualification under the Vocational Education and Training Act 1996 (Cth) since there are no specific prescribed vocational education training qualifications for 'farming' under this Act.
8. Trainee Rates of Pay: A new clause was inserted to include trainee rates of pay and conditions of employment derived from the AWU National Training Wage (Agriculture) Award 1994, consolidating conditions for trainees in one place.
9. Parental Leave: The parental leave provisions of the Award were updated to align with the National Employment Standards under the Fair Work Act 2009 (Cth), which apply to all employers and employees in Australia.
10. Long Service Leave: The Long Service Leave Provisions were varied to refer to the provisions of the Long Service Leave Act 1958 (WA).
11. Superannuation (Clause 19): Clause 19, which dealt with superannuation, was updated to remove references to defunct and deregistered superannuation schemes and to address potentially discriminatory clauses. The variations aim to align the superannuation provisions of the Award with the requirements of the Act.
12. Arrangement of the Award: The arrangement of the Award was updated for clarity, logic, and consistency with contemporary industrial instruments.
13. Other Variations: Various substitutions and variations have been made throughout the Award to improve clarity without altering the substantive operation of the clauses.

The Commission made the further variations to ensure compliance with the Minimum Conditions of Employment Act 1993 (WA).

1. Family and Domestic Violence Leave: A new clause was added to address Family and Domestic Violence Leave.
2. Hours of Work (Clause 7): The existing Clause 7 of the Award dealt with hours of work and required that working hours be agreed upon between the employer and the employee, with the condition that all employees should be allowed one full day off each week while also ensuring necessary attention to stock. However, this provision was considered potentially less favourable than s 9A of the MCEA, which restricts employees from being required or requested to work more than 38 hours per week, with reasonable additional hours determined under s 9B. As a result, Clause 7 was modified to align with s 9A of the MCEA.
3. Holidays and Annual Leave (Clause 8): The original Clause 8 of the Award covered both public holidays and annual leave. It had omitted Easter Sunday as a public holiday and referred to Foundation Day instead of Western Australia Day as a public holiday. The clause has been split into two separate sections: one dealing with public holidays and the other with annual leave. The public holiday provisions were updated to reflect current gazetted public holidays, and special public holidays proclaimed under the Public and Bank Holidays Act 1972 (WA) are recognized as public holidays for Award purposes. Additionally, Clause 8(3)(a) was removed because it was found to be inconsistent with the MCEA.
4. Annual Leave (Clause 8 Continued): The provisions regarding annual leave were updated to align with the MCEA. Under the original Award, annual leave accrued after 12 months of continuous service, whereas the MCEA allows for weekly accrual. The Award did not provide for the payment of annual leave in advance, unlike the MCEA, which allows for such payments under s 44. The Award also did not permit annual leave to be taken in one or two periods unless there were special circumstances and mutual consent from the employer, employee, and relevant union. A new clause was inserted to address these differences while preserving other conditions associated with annual leave, including leave loading.
5. Personal Leave (Clause 9): Clause 9, previously titled "Sick Pay," was updated to refer to personal leave rather than sick pay. The changes aligned this clause with the MCEA. Personal leave under the Award was limited to reasons related to personal health or injury, whereas the MCEA allows for personal leave to be taken for illness or injuries affecting a household member of the employee as well as for unexpected emergencies. The Award also accrued personal leave monthly, unlike the MCEA's weekly accrual. Additionally, the Award provided only five days of sick leave in the first year of service, whereas the MCEA allows for two weeks of leave or 76 hours in the first year of service. The Award had restrictions on taking periods exceeding 10 weeks in a year of service as sick leave and did not provide for unpaid personal leave. The modifications aimed to align the Award with the MCEA while retaining more favourable conditions from the Award.
6. Bereavement Leave (Clause 11): Clause 11, which pertained to bereavement leave, was found to be less favourable than s 27 of the MCEA. The changes incorporated the provisions of the MCEA related to bereavement leave.
7. Junior Rates of Pay: The rates of pay for junior employees aged 19 years, 18 years, and 17 years as specified in the Award were found to be 5% less than the junior rates of pay outlined in s 13 of the MCEA. As a result, the junior rates of pay in the Award were increased to align with the legislated minimum rates of pay in the MCEA.

The decision can be read here.