The Burden of Proof is Reversed

Article by: Hari Yellina (Orchard Tech)

The accuser must show guilt, not the accused, according to a long-standing and significant legal principle. Without the accuser bearing the burden of evidence, the legal system would be flooded with frivolous and baseless charges, with justice being the loser. The Fair Work Commission backed with the union in its decision to add a wage floor to the Horticulture Award’s piece-rate rules last week. In our response to the Commission’s draught determination issued last December, we argued that the unions had failed to provide the types and levels of evidence of widespread abuse of piece-rate provisions that would meet the Commission’s own standards of evidence in their application to change the Award.

In its final conclusion, the Commission addressed and dismissed our point of view. We politely decline to be persuaded. The Fair Work Ombudsman’s (FWO) Harvest Trail Inquiry report from 2018 remains our most authoritative source on horticultural workplace practises. However, the FWO makes no claim to having attempted to capture a representative and random sample of employers through its investigations. The FWO reported that 55% of businesses were non-compliant with workplace regulations, including incomplete paperwork, based on this sample, and concluded that there was “widespread non-compliance” in the horticultural industry.

Given the sample, this statement may appear to be a bit of a stretch. But, in the absence of stronger proof, we must infer that others, especially journalists, have accused our business of widespread noncompliance and systemic abuse based on this report and statement. Whether right or wrong, it appears that the burden of evidence has been shifted in favour of the horticultural sector in regards to our hiring practices. It’s regrettable that many decent employers must proactively demonstrate their ethics in order to restore an industry’s reputation that has been tarnished by a few bad apples. But that’s where we’ve ended up. Growcom launched Fair Farms, an industry-led campaign, in response to the FWO Harvest Trail study.

There is now a need for every good employer in Australian horticulture to get behind Fair Farms. The defence of the reputation is going to require a contribution from everyone.