Fruit and vegetable growers are urged to check their current and prospective labour hire agreements, following an announcement by the Fair Work Ombudsman (FWO) that the agency is reviewing complaints from workers employed by labour hire businesses in the Stanthorpe region in Queensland.
The majority of complaints have come from backpackers on the working holiday (subclass 417) visa, who the FWO view as a "vulnerable" class of worker due to their reliance on regional employers to assist them in meeting visa requirements. This reliance is matched by agribusiness employers by virtue of the industry's need for workers on a seasonal basis and in regional areas.
To tap into this labour force, many growers engage backpackers through labour-hire businesses, which can save time and expense in recruitment and payroll responsibilities. However, growers should be aware of their exposure to liability should they enter into a labour hire agreement with a contractor who doesn't pay their workers correctly.
In addition to the negative publicity associated with investigative and legal action by the FWO, a grower could be held liable as an accessory to a contravention by a labour hire company under the Fair Work Act 2009 (e.g. underpayment of minimum wages) if the FWO can establish that the grower was involved with the contravention.
Businesses should be aware that the FWO has been increasing its focus on alleging accessorial liability in the last few years.
For each breach of the FW Act, the FWO can seek a penalty of up to a maximum of $51,000 for companies and $10,200 for individuals.
Growers should take stock of their current and prospective labour hire agreements to ensure that they at least enable the labour hire business to pay the correct minimum wages, penalty rates and overtime. For instance, the charge rate should not be less than $21.08 per hour as this is the minimum casual rate per hour for ordinary time under the Horticulture Award 2010.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.
