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Changes to the Horticulture Award
04 April 2018
Content supplied by Michael Waters, MRH Lawyers, via Growcom Fruit & Vegetable News
On 22 December 2017, the Fair Work Commission released its determination with respect to a long-running issue regarding the Hort Award.
The issue concerned whether the Hort Award applied to an off-farm packing shed.
The Fair Work Commission had previously determined that if a packing shed is not within the “farm gate” the shed would be covered by a different Award – the Storage Services and Wholesale Award.
On 22 December 2017, the Hort Award was varied so that if packing (and various other activities) is performed in connection with a horticulture enterprise then the Hort Award would cover that activity.
The key words in the amendments are “in connection with a horticultural enterprise” which, in the writer’s view, is clearly a broad term meant to cover a broad range of scenarios. However, there has to be some limit to that broad range; for example the Hort Award wouldn’t cover a fruit and veg retailer simply because they wash and store horticultural produce.
These changes operate retrospectively from 1 January 2010.
Some specific example scenarios are discussed below:
| Particular Scenario | Likely Applicable Award |
| Grower with an on-farm packing shed owned by the Grower | Hort Award |
| Grower with an off-farm packing shed owned by the Grower | Hort Award |
| Grower with an on-farm packing shed owned by the Grower’s other company | Hort Award |
| Grower with an off-farm packing shed owned by the Grower’s other company | Hort Award |
| Grower with an off-farm packing shed owned jointly by the Grower and several other Growers | Hort Award |
| Packing Shed owned by several Growers | Hort Award |
| Packing Shed owned by one Grower but contracted out to many other Growers | difficult to say without further details |
| Packing Shed not owned by Growers (or owned by Grower’s superfund for example) | difficult to say without further details |
| Packing shed with no connection to the Horticulture Industry | Storage Services and Wholesale Award |
The intersection with the Horticulture Code
The Hort Award amendments and the Horticulture Code of Conduct may intersect in an interesting way. As you know, the Horticulture Code requires growers to enter into Horticulture Produce Agreements (HPA’s) with Traders. The HPA must elect either a merchant arrangement or an agent arrangement.
Where a Grower sells produce to a co-operative type Packing Shed via a merchant HPA, it may mean that the “connection” referred to in the Hort Award amendments is lost and the Packing Shed will operate under the Storage Services and Wholesale Award. Whereas, if a Grower entered into an agency arrangement with the Trader, the “connection” may be stronger and the Hort Award may apply. It is difficult to provide general guidance on this issue as there are so many possible variants on this scenario. Packing Sheds should take detailed advice on this issue as the consequences of getting it wrong could be significant.
If you would like to discuss your situation in further detail, please contact Michael Waters on 07 4154 5510.
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