29 April 2024

The Fair Work Ombudsman has secured $159,793 in court-ordered penalties against a farm business in Werribee South, Victoria, for underpaying two employees more than $28,000, falsifying records to hide the underpayments, and making unlawful deductions.

The Federal Circuit and Family Court imposed penalties of $130,806 against Lotus Farm Pty Ltd, which primarily produces tomatoes and cucumbers, and $28,987 against one of the company’s directors, Son Thai.

The FWO 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.

Lotus Farm admitted it failed to meet the employees’ minimum rates of pay, casual loading, overtime and public holiday penalty rates as set out in the Horticulture Industry Award 2010. In doing so, one worker was underpaid $22,364 and the other $6,167 for periods of work between June 2017 and September 2020. Mr Thai conceded he was involved in the underpayments.

Lotus Farm also provided false or misleading pay slips to the FWO; gave no payslips to the workers; made unlawful deductions from one worker’s pay, and failed to make and keep records as required. Mr Thai was involved in these contraventions too.

Acting Fair Work Ombudsman Michael Campbell welcomed the penalties and said the employer’s conduct was serious.

“The exploitation of vulnerable, non-English speaking migrant workers is not something we tolerate,” he said. “These substantial penalties against Lotus Farm and its general manager send a clear message that those who attempt to cover up significant underpayments, including with false payslips, will be found out and face costly consequences.”

Deputy Chief Judge Patrizia Mercuri characterised the conduct of failing to provide the employees with pay slips, then providing false pay slips to the FWO as “particularly serious”.

“…The provision of misleading information was clearly a deliberate act and had the potential to derail and or extend the investigation,” Her Honour said.

In imposing the penalties, Deputy Chief Judge Mercuri noted the need to reflect in them “the Court’s strong disapproval”.

“This is particularly so given the nature of the industry and the vulnerability of the affected employees.”

The underpayments have been rectified in full and Deputy Chief Judge Mercuri noted that Lotus Farm and Mr Thai had introduced changes to minimise the risk of non-compliance occurring again.

Ensuring compliance among agriculture sector employers is a regulatory priority for the Fair Work Ombudsman.

Employers and employees can visit www.fairwork.gov.au or call the Fair Work Infoline on 13 13 94 for free advice and assistance. An interpreter service is available on 13 14 50. The FWO also has an online anonymous report tool, including options to report in languages other than English. Employees can also seek information from their employer and their union if they are a union member.

The FWO provides information for agriculture sector employers and employees in its Horticulture Showcase. Workplace participants can also use FWO’s pay calculator. Information specific to migrant workers is available at our visa holders and migrants webpage.

The Fair Work Ombudsman has an agreement with the Department of Home Affairs, called the Assurance Protocol, where visa holders with work rights can ask for help without fear of their visa being cancelled. Details are at our visa protections webpage.