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High Court of Australia ruling

Australian Fair Work Ombudsman: Appeal in piece rate case denied

This week, the High Court of Australia has 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.

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