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Recent issues and<br />

developments in<br />

Australian labour law<br />

THERE ARE MANY LEGAL<br />

IMPLICATIONS THAT VEGETABLE<br />

GROWERS MUST BE AWARE OF WHEN<br />

RUNNING A BUSINESS, ALTHOUGH<br />

IT CAN BE CONFUSING TO SIFT<br />

THROUGH THE JARGON. CAMILLA<br />

THOMAS SUMMARISES RECENT LEGAL<br />

DEVELOPMENTS AFFECTING THE<br />

HORTICULTURE INDUSTRY.<br />

National Workplace Lawyers Special Counsel Tass Angelopoulos.<br />

43<br />

Vegetables Australia November/December 2015<br />

Protect yourself and your<br />

business.<br />

This was the key message<br />

delivered by lawyer Tass<br />

Angelopoulos to the<br />

horticulture industry to deal<br />

with changing developments<br />

in Australian labour law.<br />

There have been a<br />

number of changes to the<br />

country’s labour law in the<br />

past five years, including<br />

recently introduced<br />

bullying legislation, new<br />

precedents for sexual<br />

harassment compensation<br />

and amendments to the<br />

Australian Horticulture<br />

Award.<br />

Mr Angelopoulos, who is a<br />

Special Counsel at National<br />

Workplace Lawyers, said<br />

there was no website or<br />

fact book for growers and<br />

industry that concisely<br />

listed all areas of relevant<br />

legislation.<br />

“There have been<br />

changes and developments<br />

in Australian labour law<br />

that affects the horticulture<br />

industry, but these are often<br />

far reaching and complex for<br />

non-lawyers to understand,” he<br />

said.<br />

Some of these changes and<br />

developments have been part<br />

of the Australian Fair Work<br />

Commission’s four-yearly<br />

review of modern awards. The<br />

current review commenced in<br />

December 2013 to evaluate all<br />

Australian awards, including the<br />

Horticulture Award.<br />

Casual and part-time<br />

employment<br />

Some key themes and general<br />

issues that have arisen from<br />

this review include changes<br />

to casual and part-time<br />

employment, as well as annual<br />

leave.<br />

“An important issue the<br />

review has addressed is that<br />

the Horticulture Award required<br />

a new employer to recognise<br />

the annual leave accumulation<br />

of a worker from a previous<br />

employer,” Mr Angelopoulos<br />

said.<br />

“That was in conflict with the<br />

legislation that states that when<br />

there is a transfer of business<br />

between non-associated entities,<br />

the new employer has the<br />

option to recognise annual leave<br />

accumulated with the previous<br />

employer.<br />

“So the review has removed<br />

the requisite from the award and<br />

now reflects the legislation.”<br />

The four-year review also<br />

amended the Horticulture<br />

Award to give employees the<br />

option to “cash out” their annual<br />

leave by agreement, which<br />

was previously prohibited. The<br />

clause imposes a number of<br />

obligations on the exercise of<br />

annual leave “cash out”.<br />

There are a number of<br />

restrictions, however, as it<br />

was previously prohibited<br />

unless there was an enterprise<br />

agreement in place.<br />

“A change being proposed<br />

by unions for the Horticulture<br />

Award is a casual conversion<br />

clause, enabling casual<br />

employees who have been<br />

employed for more than six<br />

months on a regular and<br />

systematic employment, to<br />

become full-time employees.”<br />

Get advice<br />

Unions are also pressuring the<br />

review to introduce minimum<br />

engagements (four hours) for<br />

casual horticulture work, as well<br />

as a clause in which casuals are<br />

paid overtime after 38 hours of<br />

work per week.<br />

Mr Angelopoulos said if any of<br />

these changes had the potential<br />

to affect your business, he<br />

encouraged legal consultation.<br />

“When you are asked at<br />

any stage to participate in a<br />

survey about changes to the<br />

Horticulture Award, which<br />

you more than likely will be, I<br />

encourage you to participate,”<br />

he said.<br />

“Otherwise, you will have<br />

decisions imposed upon you and<br />

you will have no choice but to<br />

comply – if you are unhappy with<br />

it, it is basically bad luck.”<br />

i<br />

For more information,<br />

visit www.<br />

nationalworkplacelawyers.<br />

com.au.<br />

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