Recent Issues and Developments in Australian Labour Law as they affect the Horticulture Industry

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1 Recent Issues and Developments in Australian Labour Law as they affect the Horticulture Industry Tass Angelopoulos Special Counsel Level 3, 37 Bligh Street, Sydney NSW 2000 M T F June 2015

2 Overview Legislation 4 year modern review Budget Announcements - Taxing the backpacker Cases Harvest Trail Campaign

3 Legislation Bullying laws since 1 January 2014 minimise the risk bullying policy processes (including in policy) and training to deal with bullying complaints Annual leave loading liability Fair Work Amendment Bill sitting in Parliament Objective - leave loading is only payable on termination if expressly provided for in the relevant industrial instrument Horticulture Award silent on liability Part of the ACTU claim in the 4 year review

4 Cases Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 Sexual harassment $100K for pain and suffering (previously ordered $18,000) Important: anti discrimination policy processes (including in policy) and training to deal with discrimination and harassment complaints Mitolo Group Pty Ltd v National Union of Workers [2015] FWCFB 2524 NUW has award coverage in offsite packing sheds Horticulture Award does not apply NUW now asserting right of entry across horticulture Roberts v A1 Scaffold Group Pty Ltd & Ors [2015] FCCA 422 Binding directors for contraventions of the Fair Work Act Extends to directors of companies that have gone into liquidation and have no assets

5 4 year Modern Review Commenced in December 2013 The horticulture industry has been present from the very beginning Issues determined: Accident pay and district allowance provisions removed [2014] FWCFB 7767 Removal of absolute obligation of new employer to recognise annual leave on transfer from old employer [2015] FWCFB 3023

6 4 year Modern Review Issues determined Annual Leave issues [2015] FWCFB 3406 Impact of Annual Leave decision on Horticulture Cashing out: Maximum 2 weeks per year At least 4 weeks leave must remain Record in writing Excessive Annual Leave Will introduce a new model clause more complex than existing clause Minimum 8 weeks must have accrued There must be genuine attempt to try and reach agreement At least 6 weeks must be available at time directions given Employee can now request leave during direction period which cannot be unreasonably refused

7 4 year Modern Review Paid leave in advance of accrued entitlement now will be required to be kept as an employee record Benefit, if given can offset against entitlements on termination if insufficient leave accrual Impact of Annual Leave decision on Horticulture Pay annual leave by EFT in accordance with normal pay cycle rather than in advance Other matters: Held in abeyance ACTU application to require payment of leave loading on termination pending Full Federal Court appeal from Centennial Northern Mining Services Pty Ltd. v CFMEU (No. 2) [2015] FCA 136 Introduce a process to consider purchased leave arrangements i.e. less pay but a corresponding increase in annual leave.

8 4 year Modern Review Outstanding issues Timetable set for submissions and hearing Please participate in surveys on casual and part time issues to combat introduction Family and Domestic Violence Leave 10 days Casual conversion Minimum 4 hour engagement for part time and casuals Payment of overtime to casuals

9 Harvest Trail Campaign and Piece Rates FWO Harvest Trail Campaign 2014 Piece rates Horticulture Industry has met with the FWO representative and discussed piece rate issues Following discussions with industry stakeholders FWO developed Piecework in Horticulture - Piecework Agreement Assessment Guide Average Competent Employee agreed determined at each enterprise. There is no standard across the horticulture industry or within particular industries or locations.

10 Budget Backpackers visa holders pay tax from their first dollar earned, rather than their first $18,200 of earnings being tax-free.

11 QUESTIONS