Review of Farm Employees' Award scope clause pursuant to s 37D of the Industrial Relations Act 1979 (WA)

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

COMMISSION IN COURT SESSION

CITATION : 2023 WAIRC 00901

DELIVERED : TUESDAy, 14 November 2023

FILE NO. : CICS 18 OF 2022

Appellant

AND

(Not applicable)

Respondent

CatchWords : Industrial Law (WA) – Commission’s Own Motion – s 37D – Variation to scope of private sector award – Removal of outdated terms – extension of scope to dairy industry – Extension of scope to aquaculture industry – Transitional period for commencement of variations – Connected to the State of Western Australia – Express application to labour hire organisations – Award scope varied

Legislation : Industrial Relations Act 1979 (WA)

Fair Work Act 2009 (Cth) 

Result : Award varied

Representation:

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

Case(s) referred to in reasons:

Commission’s Own Motion v (Not Applicable) [2023] WAIRC 00262; (2023) 103 WAIG 570

Commission’s Own Motion v (Not Applicable) [2023] WAIRC 00801

Reasons for Decision

COMMISSION IN COURT SESSION:

1         In reasons for decision concerning the s 37D review of the Restaurant, Tearoom and Catering Workers’ Award scope clause in CICS 5 of 2022, the Commission in Court Session set out the process for identifying awards suitable for a scope review, and for reviewing that award’s scope: Commission’s Own Motion v (Not Applicable) [2023] WAIRC 00801 (CICS 5 Reasons). It also set out the reasons for and intention behind the scope variations which were made to that award.

2         The Farm Employees’ Award was another of the awards identified as suitable for scope review, as a result of the process described in the CICS 5 Reasons.

3         The Commission published notice of the proposed variations to the Farm Employees’ Award, and of the opportunity to be heard in relation to them, in the Industrial Gazette and on the Commission’s website. It also gave notice to the Hon. Minister for Industrial Relations, UnionsWA, the Chamber of Commerce and Industry of Western Australia (Inc) (CCI) and the Australian Resources and Energy Employer Association, formerly known as the Mines and Metals Association.

4         It directed that the following parties to the Award and other organisations be given notice:

(a) the Australian Workers’ Union, West Australian Branch, Industrial Union of Workers (AWU);

(b) the Western Australian Farmers Federation Inc (WA Farmers);

(c) the Aquaculture Council of Western Australia (Inc); and

(d) eleven individual private sector businesses including dairy farmers and aquaculture businesses, likely to be state system employers.

5         The Commission directed these 11 individual businesses be given notice as being a sample of employers that the Commission considered were reasonably representative of the employers who would be bound by the proposed variations.

6         No individual, organisation or employer has advised the Commission of any opposition to the proposed variations. The Minister, the AWU and the Aquaculture Council each told the Commission they supported the proposed variations. WA Farmers advised the Commission that its Dairy Council, Grains Council and Livestock Councils neither consented to nor opposed the proposed variations.

7         The Farm Employees’ Award’s current scope clause contains exclusions that refer to repealed or obsolete industrial instruments, and employers who no longer exist. It defines scope by reference to ‘farms’ and specified activities conducted on farms, but it is not comprehensive in the activities described.

8         As a result, there is presently no State award coverage for some farm workers. Workers on farms involved in the breeding of sheep are covered, but not workers on farms breeding alpacas. Workers on farms involved in breeding deer are covered, but not workers on farms involved in breeding emus.

9         Currently, dairy farm workers and aquaculture industry workers are also award‑free. When the Farm Employees’ Award was made, dairy farm workers were excluded because it was foreshadowed that an application might be made for a new award specifically covering the dairy industry. That did not eventuate.

10      The variations are intended to remove obsolete provisions and remove anomalous gaps in coverage.

11      To achieve more comprehensive coverage, the new scope clause is largely modelled on the scope clause and definition of ‘farming industry’ contained in the Pastoral Industry Award 2020, being a federal modern award under the Fair Work Act 2009 (Cth).

12      Further variations are intended to:

(a) specify that the scope extends to employees who are ‘connected to the State of Western Australia’ and their employees while performing work covered by the award;

(b) expressly refer to the fact the award applies to labour hire organisations that supply employees to host employers to perform work that is otherwise covered by the award; and

(c) expressly state that the award does not apply to employers and employees that are national system employers and national system employees under the Fair Work Act 2009 (Cth).

13      These purposes are common to the rationale and intent of the variations in the CICS 5 Reasons. The CICS 5 Reasons should be referred to for elaboration about the purpose of the variations.

Transitional period for dairy industry

14      WA Farmers asked the Commission to consider delaying the commencement of variations affecting the dairy industry to enable:

(a) WA Farmers to educate impacted employers about the extended scope and what they must do to ensure compliance with the award; and.

(b) time to implement any such changes.

15      While these proceedings have been on foot, the Commission has separately undertaken a review of the Farm Employees’ Award under s 40B of the Act: APPL 58 of 2022. Those proceedings have been determined in part, with further proposed variations to the award being deferred pending the determination of this scope variation application: Commission’s Own Motion v (Not Applicable) [2023] WAIRC 00262; (2023) 103 WAIG 570.

16      Given the dairy industry has historically been award‑free, we consider it is reasonable to allow time for education and implementation. WA Farmers asked that any variations impacting the dairy industry not commence until September 2024. Counsel for WA Farmers advised the Commission that while calving and milking occur year‑round so that the demands on the industry are fairly constant, winter is the optimal time to undertake an education drive.

17      A ten month period from now may be unnecessary and excessive. WA Farmers has been aware of the proposed variations since a conference was held in APPL 58 of 2022 on 10 March 2023. It has known that its Dairy Council did not oppose the proposed scope variations since a meeting of members made a resolution to that effect on 8 September 2023.

18      The extent and onerousness of implementation of award coverage will ultimately depend on the extent of further variations to the award made in APPL 58 of 2022. At this stage, APPL 58 of 2022 has not yet been relisted for hearing.

19      We therefore propose that all proposed variations, except for the inclusion of ‘dairying’ in the definition of farming industry, take immediate effect. A further variation to add ‘dairying’ to the definition of farming industry will take effect on a future date to be fixed after the final determination of APPL 58 of 2022.

Conclusion and Order

20      The Commission orders:

(a) that the Farm Employees’ Award be amended in accordance with Schedule 1 attached to these reasons, such variations to take effect from the date of the Commission’s order; and

(b) that the Farm Employees’ Award be further amended in accordance with Schedule 2 attached to these reasons, such variations to take effect from a date to be fixed, not before the determination of APPL 58 of 2022.

SCHEDULE 1

1. Delete Clause 3 in its entirety and insert in lieu thereof:

3. – AREA AND SCOPE

3.1 (a) This award has effect throughout Western Australia.

(b) This award also has effect with respect to employers who are connected to the State of Western Australia and their employees while performing work covered by this award.

Note: For a non‑exhaustive list of indicators of when an employer may be connected to the State of Western Australia, see section 3(2) of the Industrial Relations Act 1979. Indicators include, but are not limited to, whether the employer is:

• Domiciled or resident in, or has an office or a place of business in, the State; or
• Registered, incorporated or established under a law of the State; or
• The holder of a licence, lease, tenement, permit, or other authority, granted under a law of the State or by a public authority.

3.2 This award extends to and binds:

(a) employers in the farming industry; and

(b) their employees employed in the classifications set out in this award; and

(c) the Australian Workers’ Union, West Australian Branch, Industrial Union of Workers.

3.3 This award also applies to:

(a) employers that supply labour on an on‑hire basis to host employers in the farming industry in respect of on‑hire employees in classifications mentioned in this award, and those on‑hire employees, while engaged in the performance of work covered by this Award; and

(b) employers that provide group training services for apprentices and/or trainees engaged in the farming industry in respect of apprentices and/or trainees employed in one or more of the classifications mentioned in this Award, and those apprentices and/or trainees, while engaged by a host employer in the performance of work covered by this award.

3.4 This award does not cover employees covered by:

(a) the State Research Stations, Agricultural Schools and College Workers Award 23 of 1971;

(b) the Fruit Growing and Fruit Packing Industry Award R 17 of 1979;

(c) the Egg Processing Award 1978;

(d) the Dried Vine Fruits Industry Award;

(e) the Poultry Breeding Farm & Hatchery Workers’ Award 1976;

(f) the Shearing Contractors’ Award of Western Australia;

(g) the Wine Industry (WA) Award 2005; and

(h) the Dairy Factory Workers’ Award 1982.

3.5 This award does not apply to employers and employees who are subject to the national industrial relations system.

3.6 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

2. Delete Clause 4 in its entirety and insert in lieu thereof:

4. – DEFINITIONS

(a) “Apprentice” means an apprentice under the Vocational Education and Training Act 1996 (WA), or any successor legislation.

(b) “Appropriate state legislation” means the Vocational Education and Training Act 1996 (WA) or its replacement.

(c) “Approved training” means training which is specified in the training plan which is part of the training agreement registered with the state training authority. It includes training undertaken both on and off the job, in a traineeship and will involve formal instruction both theoretical and practical, and supervised practice in accordance with a traineeship scheme approved and accredited by the state training authority.

(d) “Board and lodging” means a reasonable supply and standard of food together with a reasonable standard of accommodation.

(e) “Broadcare farming enterprise”:

• means a farming enterprise consisting of the growing of broadcare field crops as defined.
• includes the rearing, management, and grazing of livestock.
• means a farming enterprise which combines both; or
• means a farming enterprise in addition to any of the above which grows other crops, for the purpose of crop rotation or the rearing, management, and grazing of livestock as part of a mixed farming enterprise.

(f) “Broadacre field crops” means grains, seeds, grasses, silage, legumes, fibre, flowers and other crops grown as part of a broadcare mixed farming enterprise.

(g) “Commission” means the Western Australian Industrial Relations Commission.

(h) “Complying superannuation fund or scheme” means a superannuation fund or scheme:

(a) that is a complying superannuation fund or scheme within the meaning of the Superannuation Guarantee (Administration) Act 1992 (Cth), and

(b) to which, under the governing rules of the fund or scheme, contributions may be made by or in respect of the employee permitted to nominate a fund or scheme.

(i) “Farming industry” means all employers and employees who are engaged in or in connection with:

(a) the management, breeding, rearing or grazing of livestock or poultry;

(b) the shearing and crutching of sheep and the classing and pressing of wool on farms;

(c) hatchery work;

(e) the sowing, raising or harvesting of broadacre field crops and other crops grown as part of a broadacre mixed farming enterprise;

(f) the treatment of land for any of these purposes; or

(g) clearing, fencing, well sinking, dam sinking or trenching on such farms or properties.

(j) “Livestock” means all animals used in primary production including fish, crustaceans and insects.

(k) “Tradesperson” shall mean a person who has satisfactorily completed the approved apprenticeship in a qualification relevant to agriculture or who has been issued with an approved trade certificate and provides proof satisfactory to the employer of such qualification or who has by other means achieved a standard of knowledge deemed by their employer as equivalent thereto and is appointed as such in writing by the employer.

(l) “Trainee” means an employee who is undertaking a traineeship.

(m) “Traineeship” means a structured employment‑based training program approved by the state training authority that leads to the trainee gaining a nationally recognised qualification. Traineeships may be full time or part time (including school based arrangements).

(n) “Training contract” means a legally binding agreement between an employer, an apprentice/trainee and their legal guardian, where required, to undertake a traineeship.

(o) “Training plan” outlines the training delivery and assessment strategy to be undertaken throughout the training contract. It is developed by the nominated registered training organisation in negotiation with the employer and trainee.

(p) “Union” means The Australian Workers’ Union, West Australian Branch, Industrial Union of Workers.

SCHEDULE 2

1. Delete subclause 4(i) in Clause 4 and insert in lieu thereof:

(i) “Farming industry” means all employers and employees who are engaged in or in connection with:

(a) the management, breeding, rearing or grazing of livestock or poultry;

(b) the shearing and crutching of sheep and the classing and pressing of wool on farms;

(c) dairying;

(d) hatchery work;

(e) the sowing, raising or harvesting of broadacre field crops and other crops grown as part of a broadacre mixed farming enterprise;

(f) the treatment of land for any of these purposes; or

(g) clearing, fencing, well sinking, dam sinking or trenching on such farms or properties.