Businesses and labour hire operators in the horticulture and viticulture sectors are in the Fair Work Ombudsman’s (FWO) sights, as it continues its national Harvest Trail Inquiry.
Harvest Trail Inquiry
The Harvest Trail Inquiry started in mid-2013 in response to ongoing requests for assistance from employees in the horticulture sector.
The Inquiry has involved Fair Work inspectors making field trips and conducting audits in fruit-growing regions around Australia, to ensure compliance with workplace obligations under the Fair Work Act 2009 (Cth) (FW Act). The FWO is particularly targeting:
- Underpayment of wages and penalty rates;
- Non-payment of wages;
- Poor record keeping, including whether written piece work agreements are in place; and
- Deductions from wages.
Fair Work Inspectors have broad powers to audit compliance with the FW Act, which include:
- power to enter premises;
- powers to inspect any work, process or object;
- power to interview anyone (with their consent); and
- powers to require a person to produce records or documents.
The FWO has also recently launched an ‘Anonymous Report’ service, which allows persons to anonymously alert the FWO to concerns about compliance with workplace obligations.
Cost of non-compliance
This month, the FWO has entered into an Enforceable Undertaking with a labour-hire operator, Seasonal Labour Solutions Pty Ltd (SLS), following discovery of numerous breaches of the FW Act by the business, including:
- underpayment of wages – SLS failed to pay a number of workers appropriate penalty rates on public holidays; and
- failure to allow workers to take appropriate rest breaks (workers were required to work 36 consecutive days straight from September to November).
The breaches were discovered by Fair Work inspectors during an audit of the work practices on the Crossmaglen blueberry farm near Coffs Harbour.
SLS was required to back-pay workers more than $14,000, and agree to a number of future compliance measures, including completion of a self-audit of its compliance with the FW Act, to be conducted by an external employment law specialist.
In this case, it does not appear that the FWO entered into any arrangements with the farm directly, however businesses that use labour-hire workers should be aware of the accessorial liability provisions in the FW Act.
The FWO has broad scope to prosecute businesses and persons who are ‘knowingly involved’ in a contravention of the FW Act – this may include farms if, for example, the rates being paid to labour-hire operators are too good to be true (supply chain issues are also currently a target of the FWO).
If you would like the benefit of Holding Redlich’s vast experience in order to ensure an issue-free inspection if the FWO comes knocking on your door, please contact our Agribusiness or Workplace Relations & Safety teams.
Charles Power, Partner
T: +61 3 9321 9942
Harry Kingsley, Partner
T: +61 3 9321 9888
Stephen Trew, Managing Partner, Sydney
T: +61 2 8083 0439
Geoff Farnsworth, Partner
T: +61 2 8083 0416
Michael Selinger, Partner
T: +61 2 8083 0430
Rachel Drew, Partner
T: +61 7 3135 0617
Trent Taylor, Partner
T: +61 7 3135 0668
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