27 June 2023

The Fair Work Ombudsman has commenced legal action against a farm business in Werribee South, Victoria, alleging it underpaid two employees more than $28,000, falsified records to hide the underpayments, and made unlawful deductions.

Facing court is Lotus Farm Pty Ltd, which primarily produces tomatoes and cucumbers, and one of the company’s directors, Son Thai.

The Fair Work Ombudsman investigated the company after receiving requests for assistance from two former employees, both from non-English speaking backgrounds, who alleged unlawfully low flat hourly rates of pay while working at the farm as pickers and packers.

The Fair Work Ombudsman alleges that Lotus Farm underpaid the two adult Vietnamese-speaking workers a total of $28,530.82 for work performed between June 2017 and September 2020.

It is alleged this occurred due to the two casual employees being each paid unlawful flat hourly rates of pay of between $13-$14, well under the minimum hourly casual rates then owed under the Horticulture Award 2010.

Mr Thai, on behalf of Lotus Farm, allegedly produced 21 pay slips for one employee which stated they worked 15 hours per week and were paid the lawful amount for those hours. The FWO alleges that the worker was in fact generally paid the lower $13-$14 hourly rates and generally worked more hours than the allegedly falsified payslips.

The FWO alleges that Lotus Farm underpaid both employees’ minimum wages and casual loading and underpaid one employee’s overtime and public holiday penalty entitlements. The FWO also alleges unlawful deductions from one employee’s wages.

It is also alleged that the company knowingly or recklessly provided false or misleading records to a Fair Work Inspector, failed to make and keep required records, and failed to provide pay slips to the employees. Mr Thai is alleged to be involved in the contraventions.

Fair Work Ombudsman Sandra Parker said the litigation sent a warning to any employer in the agriculture sector who was breaching workplace laws.

“Improving compliance in the agriculture sector and protecting the vulnerable workers who work there are priorities for the FWO. Employers who underpay their workers and use false records will be found out and risk facing significant penalties,” Ms Parker said.

“Any employees with concerns about their pay or entitlements should contact the Fair Work Ombudsman for free advice and assistance. They can do this in their own language.”

The FWO will allege the reverse onus provisions of the Fair Work Act apply and the company should have to disprove the underpayment allegations given the alleged failure to make and keep records.

The Fair Work Ombudsman is seeking penalties against Lotus Farm and Mr Thai for alleged contraventions of the Fair Work Act. The company faces penalties of up to $66,600 per contravention while Mr Thai faces penalties of up to $13,320 per contravention.

A directions hearing is listed in the Federal Circuit and Family Court in Melbourne on 7 August 2023.

Information on the Fair Work Ombudsman’s proactive audits under its national agriculture strategy can be found here.

The FWO’s Horticulture Showcase has self-audit tools and a range of resources for migrant workers. Employers and employees can visit www.fairwork.gov.au or call the Fair Work Infoline on 13 13 94 for free advice and assistance about their rights and obligations in the workplace.

A free interpreter service is available on 13 14 50, and workers can also report anonymously – in your language.