The Fair Work Ombudsman (FWO) is paying special attention to the conditions of seasonal workers in Queensland, sending teams of inspectors to visit capsicum, tomato, banana and other fruit and vegetable farms around Bowen, Tully and Bundaberg to investigate allegations of underpayment, breaches of the Horticulture Award 2010 (Horticulture Award), the National Employment Standards (NES) and other obligations contained in the Fair Work Act 2009 (Cth) (FW Act).
According to an FWO press release on 23 June 2014, the investigations form part of a crackdown on the exploitation of seasonal harvest workers, after an audit in Caboolture last year uncovered approximately $133,000 in underpayments. The investigation is intended to extend across fruit and vegetable farms Australia-wide over the next couple of years.
What kinds of things is the FWO investigating?
While the FWO has a broad range of investigative powers, it is expected that the FWO will be focusing in particular on:
underpayment of wages and entitlements, particularly under an applicable industrial instrument (such as the Horticulture Award, another modern award, or Enterprise Agreement)
sham contracting arrangements – that is, where an employment relationship is disguised as an independent contractor arrangement for the purposes of avoiding liability for various employee entitlements
failure to keep accurate employee records
contraventions of general protections provisions. In particular, there have been allegations of racial discrimination in the recruitment of workers under section 351 of the FW Act.
What are the investigative powers of FWO Inspectors?
The FWO inspectors have considerable powers under the FW Act to investigate workplaces in relation to the above matters and take steps to ensure employer compliance with industrial instruments and the FW Act provisions. These powers include:
the ability to attend a workplace unannounced, if they reasonably believe that the FW Act applies to the workplace and there are relevant employment records on the premises
the ability to inspect the premises, including the ability to inspect work processes, interview persons on site (with their consent), require individuals to provide them with access to records or documents and make copies of documents
the ability to issue a Notice to Produce requiring a person to furnish records or documents.
What will happen if the Inspectors uncover workplace contraventions?
The action taken by the Inspector will vary depending on the severity of the contravention. Potential consequences range from:
letter of caution and/or enforceable undertaking for minor infractions
order to back pay entitlements such as minimum wages, loadings, penalties and annual leave
civil penalties – up to $10,200 per contravention for individuals and up to $51,000 for companies. The FWO is more likely to seek a civil penalty order in circumstances of discrimination, sham contracting, underpayments to vulnerable workers and/or where underpayments exceed $5,000.
What should Agribusiness employers do to protect themselves?
Agribusiness employers, particularly those operating fruit or vegetable farms, should note the increased risk of a “surprise” audit and take the opportunity to do some housekeeping in respect of their employment arrangements. In particular, you should ensure that:
all employment, leave and payroll records are up to date
all employees (including any casual, piece workers and seasonal workers) are being paid the correct rate, in line with any industrial instrument that applies and taking into account the minimum rate increases after 1 July 2014
any advertisements for prospective employees are equitable and legitimate. At a minimum, this means that you must not express a preference for traits unrelated to the inherent requirements of the role (such as race or gender).
Author: Gella Rips
Alistair Salmon, Partner
T +61 2 8083 0467
Ron Eames, Partner
T: +61 7 3135 0629
Paul Venus, Partner
T: +61 7 3135 0613
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed above.