28 September 2023

One of Australia’s largest almond growers and processors, Brownport Almonds Pty Ltd, has back-paid staff more than $500,000 and signed an Enforceable Undertaking (EU) with the Fair Work Ombudsman.

The company, trading under the Bright Light brand, operates a farm and processing facility in Hattah in Victoria’s north-west.

The Fair Work Ombudsman began investigating the company’s compliance with workplace laws in May 2021 after receiving requests for assistance from workers. During the investigation, Fair Work Inspectors determined that Brownport Almonds had been misclassifying its workers under the Horticulture Award, leading to underpayments.

In response to these findings, Brownport Almonds conducted a payroll audit covering 2016 to 2021, and earlier this year reported to the FWO that it had underpaid 197 current and former employees a total of $501,511, including superannuation, across the five-year period.

Underpayments were caused by the company failing to apply each employee’s correct job classification under the Award, and by the use of flat rates of pay. All underpaid employees had been classified and paid at the level 1 classification, despite being entitled to higher rates of pay because they were performing duties of a higher classification.

The misclassified employees were paid a flat rate of pay, even if they were required to work overtime or shiftwork, which was insufficient to cover their lawful minimum entitlements.

Overall, employees were underpaid minimum hourly rates, and not paid penalties for working afternoon and night shifts and for public holidays, nor overtime and allowances.

Most underpaid employees were employed on a full-time or casual basis and engaged in harvesting and production roles, including tractor and machinery operators and farm hands.

Individual back-payments range from $4 to almost $12,500. The average back-payment is about $2,570.

Brownport Almonds has already back-paid the large majority of employees, including current and former employees, and under the EU, must back pay all staff by the end of January 2024. The EU states that Brownport Almonds have to make interest payments to all affected employees calculated at the rate of 6.1 per cent per annum.

Under the EU, Brownport Almonds must also make a $50,000 contrition payment to the Commonwealth’s Consolidated Revenue Fund.

Fair Work Ombudsman Anna Booth said an EU was appropriate as the company had readily cooperated with the FWO’s investigation and demonstrated a strong commitment to rectifying underpayments.

“Under the Enforceable Undertaking, Brownport Almonds has committed to implementing stringent measures to ensure all its workers are paid correctly. These measures include commissioning, at its own cost, two annual independent audits to check its compliance with workplace laws and provide the results to the Fair Work Ombudsman,” Ms Booth said.

“Improving compliance in the agriculture sector is a priority for the Fair Work Ombudsman, and this matter demonstrates the importance of employers placing a high priority on meeting their legal obligations. Under-classification deprives hard working employees of the pay they are entitled.

“Brownport Almond’s misclassification of its workers was left unchecked and led to the ongoing underpayment of basic Award entitlements and a large back-payment bill. We expect all employers to invest the time and resources to ensure all legal entitlements are met.”

In addition to the underpayments, Brownport Almonds also failed to make and keep proper records of overtime hours worked by the employees.

The EU requires the company to engage an independent auditor to review the payments already made to the impacted employees to ensure underpayments were calculated correctly, and for the company to write to all underpaid employees to notify them of the commencement of the EU.

The FWO’s Horticulture Showcase has self-audit tools, templates for employers hiring pieceworkers and a range of resources for migrant workers. Employers and employees can visit www.fairwork.gov.au or call 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.

Information is also available for employees and employers at our Award classifications webpage.

Information on the Fair Work Ombudsman’s Agriculture Strategy, which involves inspecting more than 350 businesses across 15 ‘hot spot’ regions where FWO intelligence suggests non-compliance may be common, can be found in our Newsroom.