By Dongyun Kwon
The Fair Work Ombudsman (FWO) has been conducting surprise inspections of agriculture businesses in the outer Melbourne regions of Mornington Peninsula and the Yarra Valley to check workers are getting the right pay.
Fair Work Inspectors have been on the ground visiting about 20 agriculture businesses, such as farms, vineyards and labour hire operators, for just over a week.
Acting FWO Michael Campbell said continuing to boost compliance among agriculture sector employers remained a priority for the agency.
“Where our intelligence says there is a high risk of non-compliance with workplace laws, we proactively conduct audits to ensure workers are receiving their lawful entitlements,” Mr Campbell said.
“The agriculture sector commonly employs vulnerable workers such as backpackers and other migrants, who may have limited English skills, be unaware of their rights, or be unwilling to speak up. Visa holders should remember they have the same workplace rights as all other workers.
“We have been working constructively with agriculture employers and employees in the Mornington Peninsula and the Yarra Valley regions to check compliance rates. This includes assisting employers understand their legal responsibilities, such as proper record-keeping – the bedrock of compliance – and the minimum wage guarantee for pieceworkers.”
Peninsula Employsure content and training head Ryan Price said the inspections are a recurring theme, with the Ombudsman’s campaign in the industry dating back to December 2021.
“For a surprise inspection, it’s not all that surprising, unfortunately. The Ombudsman does seem to target rural and regional businesses from time to time, particularly those in agriculture and horticulture,” he said.
“The rationale seems to be that these businesses have high proportions of migrant or overseas workers on visas, with inspections arising from concerns that these populations may be taken advantage of due to language barriers and isolation.
“However, the main breaches seem to relate to record-keeping and payslip laws and regulations.”
Inspectors spoke with growers, labour hire operators, managers and employees on the ground, and requested employment records and payslips that allow them to check compliance with workplace laws.
Mr Price said there are many misconceptions about payslips and records and what does and doesn’t need to be recorded.
“This is covered in the Fair Work Regulations, which lays out specific rules that employers need to follow,” he said.
“People are often caught out by a few things including the requirement to make and keep pay slips and records for up to seven years.
“Many employers assume that they can dispose of records within a reasonable timeframe after employment ends, but this isn’t the case.”
A court can order penalties of up to $18,780 per contravention for an individual and $93,900 per contravention for small businesses.
Companies that are not small businesses could face penalties of up to $469,500 per contravention for certain breaches.
Maximum penalties are 10 times higher if a court determines breaches were serious contraventions under the Fair Work Act.
Mr Price said the constant changing of the relevant law confuses people.
“The Fair Work Act has been through three major rounds of updates in the last two years. This has included things like the outlawing of pay secrecy and the introduction of the new Right to Disconnect,” he said.
“It has been unlawful to enter new contracts that prevent employees from discussing their pay with others since the introduction of the secure jobs, better pay amendments in December 2022. If you are relying on old or outdated contracts to create new ones, you could potentially be breaching the Fair Work Act without knowing it every time you issue a new one.
“The Right to Disconnect has been a source of much controversy and confusion over the last few months, and many people have the wrong end of the stick. The new Right to Disconnect allows employees to refuse to monitor, read or respond to contact or attempted contact outside of their working hours unless it would be unreasonable to do so.
“It’s unclear exactly how this will be interpreted by the Fair Work Commission and the courts but what we do know is that factors like the employee’s pay, their position, their level of responsibility, the urgency of the issue, or any extra benefits for being on call will be relevant. For example, calling an employee outside of their working hours because of an emergency on a property that they are responsible for is likely to be classified as reasonable and unlikely to find you in breach of the Act.”
Investigations continue and results will be published at a later date.
Mr Price shared actionable tips for employers on how they can achieve compliance.
“First, never set and forget. Don’t assume that an agreement, contract, or employment relationship you entered into is still compliant six or 12 months down the track. Employment relationships, just like personal ones, require maintenance,” he said.
“Second, get to know your Award. you can seek professional advice, from an organisation like Peninsula Employsure, or speak to the FWO to get help identifying which Award is most applicable to your business. I’d also advise visiting the Fair Work Commission’s website to familiarise yourself with the Award and make certain it matches your business operations.
“Third, keep detailed records. It’s hard to establish compliance or defend yourself and your business against allegations if you don’t have records, which is also a requirement under the Fair Work Act and Fair Work Regulations.”
Employers and employees can visit www.fairwork.gov.au or call the Fair Work Infoline on 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.
Issues can also be reported online anonymously, including in languages other than English.
