HOURS of Work under the Horticulture Award have been gradually, but inexorably, changing over the past couple of years, becoming more restrictive. While delivering wads of flexibility for employees and acknowledging that this is appropriate for some industries, it is seasonality and the very nature of the product that drives horticulture and its labour needs.

The impact on labour costs for growers has increased exponentially – and, again, this is OK for those industries who can pass on those increased costs. This is not necessarily the case for horticulture, which operates in a supply and demand market with often the slenderest of margins.

But, as ever, we play the hand we’re dealt, so let’s look at how we might extract some flexibility from the Award provisions, without breaking the bank.

Essentially this clause establishes the ordinary hours of work for fulltime and part-time employees as Monday to Friday from 6am to 6pm. Saturdays attract a 150 per cent penalty rate and Sundays and public holidays 200 per cent. Ordinary hours of work are averaged at 152 over four weeks. This means that hours can be high and low within those four weeks, provided they don’t go over 153 hours. Then overtime or TOIL applies. These hours and the span can also be extended by agreement with workers.

For casuals, the hours are averaged at 304 over eight weeks and can be worked on any day without penalty – except for public holidays which attract the 200 per cent loading. They can work those 304 hours in any way, with a maximum of 12 hours per day, attracting overtime only once the 304 hours have been reached within the eight-week period.

Overtime rates apply outside of the span of hours, when more than 12 hours in a day is worked, and for fulltimers on Saturday and Sunday. TOIL is where, rather than being paid the overtime rate for additional hours, the employee agrees to take TOIL. This is provided on an hour-for-hour basis and can be accrued for up to six months before being taken. If planned properly, this can be beneficial for both employees and employers.

The Labour Use Survey found the use of pieceworkers in the horticulture industry declined from 33 per cent of all workers in 2019-20 to 24 per cent in 2021-22. From April 28, 2022, a Full Bench of the Fair Work Commission (FWC) varied the piecework provisions of the Horticulture Award.

The main purpose of the variation was to establish a minimum wage ‘floor’ for piecework under the Award. However, another feature of the variation was to allow an employer, by right, to pay a fulltime, part-time or casual employee a piece rate for performing a task rather than the previous position whereby (at least nominally) the employee’s agreement was required.

As a result of this variation, the current position is that an employer may choose to pay casual employees piecework rates in line with the requirements of clause 15.2 and, if they do, the overtime provision in clause 21.4 does not apply.

So, under the Award, an employer has the option of paying piece rates to employees that comply with specified conditions and, if this is adopted, the employer is exempt from paying overtime rates.

The average productivity of a pieceworker competent at the piecework task over a period is calculated by dividing the total output of the pieceworker over that period by the total of the hours worked by the pieceworker over the same period (where output is measured in the same unit used to specify the piece rate. For example, a punnet, bucket or kilogram is one unit).

So what does competent mean? This refers to a worker with at least 76 hours on the job training/work. Here’s an example:

In addition, hours worked while earning a piecework rate do not count towards calculating overtime. Only time worked earning an hourly rate will count towards calculating overtime. Two separate engagements are possible. Is it time to rethink how you employ and set your rosters?