18 October 2023

The Fair Work Ombudsman is urging agriculture sector employers to prioritise compliance, having fined employers $316,860 nationally and recovered $72,301 for underpaid workers.

The regulator has investigated 447 businesses in regional hot spots across Australia since its agriculture strategy began in December 2021.

Site inspections target employers in 15 ‘hot spot’ regions where FWO intelligence suggests non-compliance may be rife. The most recently inspected regions are Queensland’s Sunshine Coast and Lockyer Valley, and the Riverina in New South Wales.

Under the agriculture strategy, the regulator has found a ‘mixed bag’ with some regions remaining stubbornly non-compliant (Riverland, Mildura and Coffs Harbour) and others disclosing much improved workplace practices (Wide Bay, Moreton Bay, Stanthorpe and Manjimup).

So far the Fair Work Ombudsman has issued 98 Infringement Notices for pay slip and record-keeping breaches, with employers fined a total of $316,860. The large majority (86) were to labour hire entities; only 12 growers were fined.

Fair Work Ombudsman Anna Booth said the regulator would continue to prioritise the agriculture sector in 2023-24 because of its reliance on vulnerable workers such as visa holders and its use of complex supply chains.

“With very high numbers of visa holders in the workforce, too many agriculture employers are breaching record-keeping and pay slips laws, which are the bedrock of workplace compliance,” Ms Booth said.

“It’s a red flag if workers are not issued pay slips, can’t identify their employer and are paid cash-in-hand by individuals seemingly unrelated to the apparent employing entity. We see this all too often in multi-level supply chains.”

“Breaches of record-keeping and pay slips laws often indicate increased risks of underpaying workers as well as non-compliance with other Commonwealth laws. Employers should access our free resources and get it right, or they will continue to face fines, backpayments and legal proceedings.”

Fair Work Inspectors have issued 48 Compliance Notices. These resulted in $72,301 in back-payments for 184 workers. Of the notices, 26 were issued to labour hire entities and 22 were to growers.

Pieceworker-related contraventions were a factor in ten of the Compliance Notices. Twenty-five of the Infringement Notices were in relation to an employer’s failure to make and keep records of hours worked by a pieceworker.

“Part of our agriculture focus is keeping a close eye on pieceworker-related compliance following last year’s Horticulture Award changes,” Ms Booth.

“Overall across the sector, while there is room for improvement, we are pleased to have met many compliant growers who have been happy to see us out helping to enforce a level playing field among the crops and fields across the country.”

Inspectors will continue to target unannounced hot spots this year and next year.

“Labour hire entities and growers are on notice. They may get a visit from Fair Work Inspectors very soon – and we will take enforcement action where appropriate.”

Results summary – Sunraysia, Adelaide and Adelaide Hills, Riverland, Whitsunday Coast, Stanthorpe, South West WA, Wide Bay and Moreton Bay

Investigations into the Sunraysia region concluded with 37 businesses found to be non-compliant and 16 found to be compliant. Fines totalled $136,344 for record keeping and payslip breaches; of this, close to $129,000 were issued to labour hire companies. In this region, $14,389 was recovered for 20 workers.

In Adelaide and Adelaide Hills, where two investigations are still on foot, 16 businesses were found to be compliant while 14 were non-compliant. Fines over payslips and record-keeping breaches exceeded $70,000 and four Compliance Notices were issued.

The Riverland in South Australia, where one investigation remains ongoing, had close to $50,000 in Infringement Notices issued for payslip and record-keeping breaches, of which more than $42,000 was to labour hire companies. Six Compliance Notices were issued and recoveries were $11,841 for 32 workers.

On the Whitsunday Coast, where one investigation continues, fines over payslip and
record-keeping breaches totalled $23,507. Inspectors issued four Compliance Notices, recovering $23,507 for 37 workers.

There are four investigations ongoing into Stanthorpe businesses. In completed matters, 17 businesses were found compliant and five non-compliant. Six Compliance Notices recovered $13,280 for 33 workers. Fines issued over payslip and record keeping breaches totalled $8,250 – all to labour hire companies.

South West WA had an almost even split of compliant and non-compliant businesses. Ten had met their obligations under the law and eight had not. All matters are finalised, with six Compliance Notices recovering $3,193 for seven workers and fines for payslips and record-keeping breaches totalling $5,500.

Widespread compliance was found in Queensland’s Wide Bay and Moreton Bay where investigations have been finalised and 31 and 37 businesses respectively were found to be compliant. There were seven non-compliant employers in Wide Bay and three in Moreton Bay, with one Infringement Notice issued in each region, for a combined fine of $4,400.

Most recently inspected regions: Riverina, Lockyer Valley and Sunshine Coast

Inspectors visited growers and labour hire firms of the Riverina in June and September 2023, investigating 32 businesses. Of the closed investigations to date, four businesses were found to be compliant and two were in breach. The regulator has issued two Compliance Notices and continues to investigate 22 businesses.

Inspectors paid a visit to Lockyer Valley in Queensland in July and August 2023. Auditing 35 businesses, inspectors are still looking into 29. To date, Infringement Notices for payslip and record keeping breaches total $14,890 for this hotspot.

Inspectors targeted growers and labour hire companies of the Sunshine Coast last month, with 28 businesses investigated. The majority of investigations continue and one Compliance Notice has so far been issued.

Pieceworker-related compliance under the Horticulture Award

In April 2022, a range of changes to pieceworker laws took effect under the Horticulture Award, including the commencement of a minimum wage guarantee.

“A year and a half on from the Horticulture Award changes, Inspectors are still seeing low rates of compliant piecework records being issued to workers,” Ms Booth said.

“Pieceworkers are still often receiving outdated agreements that are no longer compliant, as they fail to inform the pieceworker of their right to receive a guaranteed minimum hourly rate of pay for each day worked,” Ms Booth said.

“Employers can expect on-the-spot Compliance Notices if they breach their obligations.”

In recent months, the FWO filed separate court actions against Lotus Farm for allegedly paying below award wage flat rates to two vulnerable employees, and against celery producer A & G Lamattina & Sons alleging underpayments of three visa holders. The cases remain before the court.

The FWO’s Horticulture Showcase has self-audit tools, templates for employers hiring pieceworkers and a range of resources for migrant workers.

Growers using labour hire providers should access the Showcase’s Using labour hire webpage including the Guide to monitoring your labour contracting.

Employers and employees can visit www.fairwork.gov.auor 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.