Queensland Strawberry Farmer fined for Underpaying Employees
Tuesday 4 October 2016 @ 10.45 a.m. | Industrial Law | Legal Research
The operators of a Queensland farm have been penalised almost $70,000 and ordered to overhaul their workplace practices following legal action by the Fair Work Ombudsman (the Ombudsman).
The Federal Circuit Court has imposed the penalties against the operators of a strawberry farm on Newlands Road at Cottonvale, near Stanthorpe, Queensland.
Background
Farm owner Hour Him and his partner Tay-Duc Nguyen, the farm’s former operations manager, have each been penalised $6,400 and Him’s company, I Luv Pty Ltd, has been penalised a further $56,000.
The Ombudsman discovered that six overseas workers had been underpaid a total of $2,601 when the farm was audited in 2015 as part of the Agency’s national Harvest Trail Inquiry.
The six employees, who were on 417 working holiday visas, were underpaid over a two-week period between 28 March and 10 April 2015. It was not the first time that workers on the property had been underpaid.
In 2013, the Ombudsman required I Luv Pty Ltd to back-pay nine employees more than $21,000. The company also received two contravention letters and a formal Letter of Caution placing it on notice that further breaches could result in enforcement action.
What is the Harvest Trail Inquiry?
The Harvest Trail Inquiry was launched in 2013 in response to ongoing requests for assistance from employees in the horticulture sector and confusion among growers and labour-hire contractors about their workplace obligations.
The aim of the Inquiry is to speak to growers and workers about:
- minimum wages and conditions, including piece rates;
- record keeping and pay slips; and
- labour hire and supply chain issues.
Fair Work Ombudsman, Natalie James said:
“We are conscious many fruit pickers are young overseas workers who may be vulnerable if they are not fully aware of their rights, are reluctant to complain or face language barriers. It’s important we are pro-active about ensuring they receive their full lawful entitlements.”
Reaction from the Ombudsman
Commenting on this case, the Fair Work Ombudsman, Natalie James says the Court’s decision sends yet another clear message to rural employers that exploitation of overseas workers on their properties will not be tolerated.
As well as imposing the financial penalties, Vasta J. also agreed to make additional Orders aimed at overhauling workplace practices on the farm. These were agreed to by the operators.
Judge Vasta ordered I Luv Pty Ltd to commission an external audit of its compliance with workplace laws in 2017 and provide the Ombudsman with a report on the findings, including steps taken to rectify any non-compliance. Him and Nguyen have been instructed to undertake training in relation to their workplace obligations under Australian laws.
Ms James said it was unacceptable that Him, who was previously a member of Growcom Australia and the Queensland Strawberry Growers’ Association, continued to disregard his workplace responsibilities after having previously been put on notice of his lawful obligations in 2013.
She said the Ombudsman was devoting considerable resources to ensuring the many farms around the country that relied heavily on labour from overseas workers were complying with workplace laws.
Other action by the Ombudsman
The Ombudsman has also taken action against operators of a remote beef cattle farm in Queensland are facing legal action for allegedly underpaying six backpackers from the UK and Ireland. The six, who are in Australia on the 417 working holiday visa, worked at the farm in order to qualify for a second-year extension to their visa.
To be eligible for a second year, 417 visa-holders must undertake 88 days specified work in a designated regional area and in certain industries in their first year.
The backpackers allegedly:
- worked up to 13 hours a day, six-or-seven days a week;
- performing duties including driving tractors and dump trucks;
- feeding and mustering cattle; and
- assisting to remove dead animals from pens.
It is also alleged that three of the backpackers did not have a single day off during their employment, respectively working 64, 80 and 88 consecutive days. Under the Pastoral Award 2010, the backpackers should have been paid between $16.37 and $17.79 for ordinary hours and up to $37.96 for overtime work. Public holiday pay and leave entitlements were allegedly also underpaid. The largest alleged individual underpayment is $11,592.
The Ombudsman alleges they were paid a flat rate of $17 an hour and collectively short-changed more than $38,000. It was also announced that legal action had commenced against Robert Maudsley, who owns and operates a cattle feedlot at Goomeri, west of Gympie. Also facing court is Mr Maudsley’s company, Waterfall Feedlot Pty Ltd.
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