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Verdict still unclear in Fair Work horticulture award case

Tech problems and a lack of interpreters have dogged the Fair Work Commission's hearings into the horticultural award rate.

In the first hearing an interpreter missed a cross-examination question due to a poor connection, Witness 1 couldn't appear as scheduled due to a lack of a Malay interpreter and several high-value witnesses gave little to no evidence during cross-examination due to a language barrier.

Fair Work Commission (FWC) president Iain Ross spent part of the first hearing advising everyone to use CTRL+HOME to access the index holding witness statements, rather than the `back’ button.

“The irony of me giving you IT advice isn't lost on me,” Justice Ross told the digital observers — including the Australian Workers’ Union, National Farmers’ Federation, United Workers Union, 88 Days and Counting and the Australian Fresh Produce Alliance.

The FWC is yet to deliver a judgement on the AWU's proposal to introduce a minimum hourly wage to the horticultural award's piecework rate.

A background paper was produced on July 26 to summaries the evidence given and help a Full Bench reach a determination later in the year.

The AWU's general strategy throughout the hearings was to hammer home the vulnerability of the horticulture labour force.

Former AWU organiser Darren Cameron represented union members in the Shepparton and Rutherglen areas until late 2020.

“I would say in that time (2019 to 2020) I received upwards of 15 complaints,” Mr Cameron told the FWC while being cross-examined by the NFF.

Of those 15 complaints against employers Mr Cameron admitted he never approached the hire company or grower.

“In all of those cases the complaints or the inquires came from people who were unwilling to become (union) members because they felt they wouldn't get work, and I was unable to justify further action for people that weren't members. Also the award itself is largely unenforceable,” he said.

Mr Cameron said some workers, particularly Pacific Islanders, simply couldn't afford the union fees, even the reduced fee of $9 a month.

“In addition, the current structure of the award makes it impossible to enforce the provision around what is an average competent picker that sets the piecework rate.”

In addition to a minimum hourly wage, the AWU and UWU are pushing to make growers responsible for recording how many hours their staff are working, even if they are paid purely by the bin.

University of Adelaide law professor Joanna Howe was brought in to give evidence of undocumented migrant workers in the industry.

Dr Howe said the rate of undocumented workers was “considerably high” in the Sunraysia, Goulburn Valley and Riverina regions.

During the 2019-20 cherry season growers were reporting 80 to 90 per cent of their workforce was undocumented migrants, Dr Howe said.