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
Harvest Trail Inquiry
The Harvest Trail Inquiry started in mid-2013 in response to
ongoing requests for assistance from employees in the horticulture
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
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
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.
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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
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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