12 July 2015

Australia’s largest wholesale nursery is revamping its workplace practices after the Fair Work Ombudsman found some of its policies were both unlawful and unreasonable.

Fair Work inspectors launched an investigation in response to allegations received from the Employment Law Centre of Western Australia in relation to the treatment of overseas workers.

Eight employees from Taiwan and Hong Kong - in Australia on 417 working holiday visas - had complained about unreasonable and unauthorised deductions from their wages for rent.

The Fair Work Ombudsman subsequently discovered that Benara Nurseries gave jobs to some overseas workers who were willing to live on-site.

They lived on its premises in Safari Place, Carabooda, north of Perth.

It was alleged that up to 16 workers were housed in a four-bedroom house with only one kitchen, two showers and four toilets for which they each had to pay $450 a fortnight.

They complained about cramped conditions, lack of privacy, unreasonably high rent and discomfort from the odour from a nearby fertiliser factory.

The Fair Work Ombudsman found that while the parent company Quito Pty Ltd may have had verbal agreement from the workers to deduct rent from their wages, the deductions were unlawful without a written agreement signed by each employee.

It has requested the company reimburse the eight former employees almost $30,000 for unlawful deductions made from their wages between May and October last year.

The Fair Work Ombudsman has also requested an undertaking from the company that it provide inspection reports demonstrating that its staff accommodation is fit-for-purpose and has the appropriate permits, licenses and zoning approvals.

Quito has agreed to the request as part of an Enforceable Undertaking (EU) it has signed with the Fair Work Ombudsman as an alternative to litigation.

Fair Work Ombudsman Natalie James says the EU ensures that when the company makes deductions for rent from employees in the future, it will be at commercial rates for safe, legally compliant accommodation.

Benara Nurseries, which has a 300-plus workforce, is a family-owned and operated business specialising in growing and supplying wholesale native and exotic plants to the landscape and retail nursery industries.

Ms James says the agreement the Agency has struck with the company focuses on ongoing behavioural change to ensure its future compliance with federal workplace laws.

The Enforceable Undertaking, published on the Fair Work Ombudsman’s website, requires Quito to:

• Reimburse a total of $28,795.21 to the eight employees for unlawful deductions from their wages,
• Place a Public Notice in the local newspaper, the North Coast Times, notifying the community of its workplace contraventions and actions taken to remedy them,
• Place a similar notice at its workplace at 32 Safari Place, Carabooda,
• Send a written apology to each of the affected employees expressing its sincere regret for the conduct,
• Register with the Fair Work Ombudsman’s online tool My Account,
• Implement systems and processes to ensure its future compliance with workplace laws,
• Engage an external accounting professional to audit its workplace practices each year for the next two years,
• Implement a training program for directors and others responsible for human resource, recruitment and payroll functions,
• Provide evidence that its residential accommodation has the appropriate licences, permits and zoning approvals, and
• Obtain an independent, professional assessment of the property, report any defects to the Fair Work Ombudsman and provide evidence of action taken to rectify them.

Enforceable Undertakings were introduced by legislation in 2009 and the Fair Work Ombudsman has been using them to achieve strong outcomes against companies that breach workplace laws without the need for civil court proceedings.

“We use Enforceable Undertakings where we have formed a view that a breach of the law has occurred, but where the employer has acknowledged this and accepted responsibility and agreed to co-operate and fix the problem,” Ms James said.

This case comes as the Fair Work Ombudsman noted the growing number of requests for assistance coming from visa holders working in Australia.

The Fair Work Ombudsman established an Overseas Workers’ Team in 2012 in recognition that overseas workers can be vulnerable to exploitation or require specialist assistance.

Ms James encouraged employers who had any uncertainty about whether their workplace practices were appropriate to visit www.fairwork.gov.au or call the Small Business Helpline for advice on 13 13 94.

A free interpreter service is also available on 13 14 50, and information on the website is translated into 27 languages.

Follow Fair Work Ombudsman Natalie James on Twitter @NatJamesFWO , the Fair Work Ombudsman @fairwork_gov_au or find us on Facebook www.facebook.com/fairwork.gov.au .

Sign up to receive the Fair Work Ombudsman’s media releases direct to your email inbox at www.fairwork.gov.au/mediareleases.

Download:

• Quito Pty Ltd Enforceable Undertaking 

Media inquiries:

Ryan Pedler, Assistant Media Director
Mobile: 0411 430 902
ryan.pedler@fwo.gov.au