Most Read Contributor in Australia, September 2016
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
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
The action taken by the Inspector will vary depending on the
severity of the contravention. Potential consequences range
letter of caution and/or enforceable undertaking for minor
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
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).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Treasurer Scott Morrison recently announced changes to a number of 2016 Budget superannuation contribution measures.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).