Cropping

Lesson for all ag employers in legal action against rural labour-hire operator

Grain Central, February 9, 2017

IN a lesson to all agricultural employers, the Fair Work Ombudsman’s (FWO) national Inquiry into exploitation of overseas workers on the Australian harvest trail has led to the Agency launching legal action against a Queensland labour-hire operator for allegedly flouting record-keeping laws.

Facing the FWO Circuit Court are labour-hire company HTA Farmings Pty Ltd and company manager Tuan Anh Le.

The FWO alleges that despite being previously cautioned, HTA Farmings committed serious contraventions of record-keeping laws relating to 265 employees.

HTA Farmings had supplied the employees to pick and pack strawberries at a Stanthorpe farm.

Fair Work Ombudsman inspectors attempted to conduct a full audit of HTA Farmings in 2015 as part of its national Harvest Trail Inquiry aimed at improving compliance in the horticulture industry.

The FWO alleges that a lack of basic records of hours worked prevented its inspectors from checking whether almost all employees were being paid their minimum lawful entitlements.

Underpayments

Underpayments of entitlements could be calculated for just six out of the 265 employees identified, with inspectors determining the workers had been underpaid a total of $316, which has now been mostly back-paid.

The FWO further claims HTA Farmings allegedly also contravened pay slip laws and failed to have piece work agreements in place for employees who were paid piece rates.

Many of the 265 employees were overseas workers from Asian countries and were in Australia on 417 working holiday visas at the time.

FWO’s Natalie James said the seriousness of the alleged contraventions and company’s failure to take action after being formally cautioned for similar non-compliance in 2013 and earlier in 2015 were a factor in deciding to commence litigation.

HTA Farmings Pty Ltd faces penalties of up to $51,000 per contravention and Mr Le faces maximum penalties of up to $10,200 per contravention.

A directions hearing is listed for February 13 in the Federal Circuit Court in Brisbane.

Blatant contraventions

Ms James said business operators needed to be aware that blatant contraventions of record-keeping laws were being treated particularly seriously.

“It is completely unacceptable for an employer to fail to keep records of the hours their employees work and what they are paid,” she said.

“We provide free advice and resources to assist employers to understand and comply with their record-keeping obligations.”

Ms James also reiterated her call for major national employers to be proactive about ensuring workers involved in their supply chains are not being exploited.

“Increasingly, if we find a business underpaying workers and that business is part of a supply chain, we are looking to the top, because the business at the top of the supply chain is the price-maker and controls the settings,” she said.

“We are conscious many fruit pickers are overseas workers, who may be vulnerable if they are not fully aware of their rights. They are also reluctant to complain or face language barriers.”

Workplace obligations

The Harvest Trail Inquiry is focusing on the horticulture and viticulture sectors nationally in response to ongoing requests for assistance from employees in the sector, persistent underpayments and confusion among growers and labour-hire contractors about their workplace obligations.

A key focus of the Harvest Trail Inquiry has been ensuring growers and their representatives apply due diligence to the labour-hire operators from which they are sourcing their workers.

The Harvest Trail Inquiry, which commenced in August 2013 and is due to report its findings this year, has been run alongside the Fair Work Ombudsman’s recently completed Inquiry into the experiences of 417 working holiday visa-holders in Australia.

The 417 Visa-holder Inquiry found the requirement to do 88 days of specified, regional paid work to qualify for a second-year visa was unintentionally creating an environment where some unscrupulous operators were exploiting overseas workers.

In the 2015-16 financial year, 38 of the FWO’s 50 litigations (76 per cent) involved a visa holder. Sixteen of those litigations involved a 417 visa holder.

In 2015-16, the Fair Work Ombudsman recovered just over $3 million for all visa-holders, with $1.37 million of this for 417 visa-holders.

Employers and employees can visit www.fairwork.gov.au or phone the Fair Work Infoline on 13 13 94.

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