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Fair Work Ombudsman appeal in piece rate case denied

Industry Best Practice

The High Court of Australia has this week refused the Fair Work Ombudsman (FWO) special leave to lodge an appeal in the long-running Marland Mushrooms piece rates case.

The decision effectively brings to an end the case under which the FWO had argued that if piece rates were found to be non-compliant that workers should automatically revert to entitlement to payment at the minimum award rate.

The National Farmers Federation (NFF) immediately welcomed the decision, describing it as “common sense” and a “significant victory for farmers”.

“The NFF feared the case had the potential to set a precedent for how the award was applied across the horticulture sector, an industry that depends on piece work,” NFF Chief Executive Officer Tony Mahar said.

The FWO alleged in 2016 that piece rates paid to 406 Marland Mushroom workers supplied by HRS Country Pty Ltd in 2014 did not meet the test of allowing the average competent worker to earn 15 per cent above the relevant minimum hourly rate, negating the piece rates agreement and, it argued, therefore entitling them to payment at award minimum rates.

The FWO continued to press its case after the Federal Court first ruled against them in July 2018 on the calculation (but not the fact) of the underpayment, and then again following an appeal in August 2019, with the High Court this week dismissing their attempt to continue the case further.

APAL contributed financial support to the NFF’s legal fight in its capacity as a member of the NFF Horticulture Council.

APAL Head of Government Relations Jeremy Griffith said that while the decision represented a win for farmers across the country, it was important growers knew their responsibilities as employers and paid workers fairly.

“It’s important to create a fair employment culture across industry and support a level playing field, so that growers who do the right thing are not disadvantaged,” he said.

“We welcome this decision but also acknowledge that treating employees as fairly as possible is in the best interests of both employees and growers.”

TIMELINE OF PIECE RATES CASE

2016 Sep –  The Fair Work Ombudsman (FWO) commences action against Marland Mushrooms owner Troy Marland and Ms Tau Hu, former owner operator of (in liquidation) labour-hire company HRS Country Pty Ltd used by Marland Mushrooms, alleging as piece rates paid to 406 workers during January to August 2014 did not meet the test of allowing the average competent worker to earn 15 per cent above the relevant minimum hourly rate under the award, piece rates did not apply. It argued the workers were therefore entitled to have been paid the minimum award rate plus casual loading and had been underpaid $646,701.

2017 Nov – The National Farmers Federation (NFF) is granted permission to become a party to the case.

2018 Jul – The Federal Court find that the piecework rates did not enable the average competent worker to earn 15 per cent above the award, but this did not automatically mean they reverted to the award rate of pay in calculating underpayment.

In addition, the court also dismisses the FWO’s allegations that Marland Mushrooms and Troy Marland were in involved as accessories in the underpayments.

2018 Aug – The Fair Work Ombudsman appeals the decision.

2019 Aug – In a split decision, the Federal Court dismisses the FWO appeal.

2019 Sep – The FWO seeks special leave from the High Court of Australia to appeal the split decision.

2020 Feb – The High Court refuses the special leave application.

The FWO proceedings against HRS Country Pty Ltd’s (in liquidation) director Tao Hu are are still before the Federal Court.

Resources

Seasonal farm workers employed on apple and pear orchards are essential to the industry and their contributions are highly valued by growers. Without them the industry would not have enough workers to pick and pack fruit. It is therefore very important that there are enough seasonal farm workers and that they are treated and paid fairly.

Know your responsibilities as an employer – APAL provides a range of background information, including toolkits on Looking after workers on its website.

Tagged:
Fair Work Hort Award

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