The recent Horticulture Compliance Report released by the Fair Work Ombudsman, is part of a comprehensive strategy to improve compliance in Australia’s horticultural sector. The Report investigated 15 “high-risk” regions, with only two receiving a low non-compliance rating.
Our Workplace Relations expert Alan Doyle looks at the key findings in the report, and the actions horticulture employers can take to improve compliance.
Key Points
- Fair Work is focused on education and improving compliance in key horticultural regions, following the recent release of a Horticulture Compliance Report.
- Dodgy labour hire providers had a big impact on this non-compliance, and it is essential that organisations understand their obligations when engaging providers.
- The report also highlighted key compliance and governance areas growers need to improve on, including poor record keeping, pay slips and interpretation of the Horticulture Award.
There are many areas of non-compliance highlighted in the Horticulture Compliance Report (the Report). However, the Report acknowledges that their inspections targeted employers suspected of non-compliance between 2021 – 24, which means non-compliance ratings may be higher than the broader employer community within each region.
The Fair Work Ombudsman measures non-compliance from the perspective of growers and labour hire companies. “Interestingly, in the regions where non-compliance is rated very high or extreme, there were more labour hire company inspections, all of whom had higher non-conformance levels,” says Alan. “But this is not the whole story, as growers also have rates of non-conformance that are of concern to Fair Work.”
As a result, Fair Work is now focused on education and improving compliance in these regions.
| Region | Non-compliance rating | Non-compliance |
|---|---|---|
| Mornington Peninsula & Yarra Valley, VIC | Extreme | 83% |
| Riverina, NSW | Very high | 72% |
| Sunraysia (Mildura), VIC | Very high | 70% |
| Shepparton, Vic | Very high | 63% |
| Coffs Harbour and Grafton, NSW | Very high | 61% |
| Riverland, SA | High | 58% |
| Adelaide and Adelaide Hills, SA | High | 52% |
| Whitsunday Coast, Qld | High | 47% |
| South-West, WA | High | 47% |
| North and Northwest, Tas | High | 44% |
| Lockyer Valley, Qld | High | 41% |
| Sunshine Coast, Qld | Moderate | 38% |
| Stanthorpe, Qld | Moderate | 36% |
| Wide Bay, Qld | Low | 18% |
| Moreton Bay, Qld | Low | 8% |
Labour Hire Provider non-compliances
Unfortunately, labour hire providers were identified as a key influencer of non-compliance. This is not all providers of course, but there are some who have had a significant impact on the sector. “As someone who works in a licensed labour hire company and understands how much the organisation invests in workplace relations expertise, this is disappointing,” says Alan, who acknowledges that while compliance often involves an investment, a lack of compliance can come at a greater cost to the health of employees, organizational reputation, and the bottom line.
Some of these non-compliances were due to a lack of knowledge, while others were more intentional. It’s essential to use agencies who hold a Labour Hire Licence (if required in your State), ideally have a clean record with Fair Work, have a physical presence, and provide relevant information about workers and pay rates.
Dodgy employment practices in the Horticulture industry not only resulted in the introduction of Labour Hire Licences in multiple states, but they are also one of many driving factors that lead to the Modern Slavery Act 2018. This demonstrates the importance of compliance. There are excellent operators in the industry, but there are also others that may not align with the values of your business, or have the expertise required to provide effective advice and support.
Common grower non-compliances
The Fair Work report acknowledges that many growers were not compliant due to a lack of knowledge and were in fact happy to correct mistakes when identified. Common non-compliances included the following.
- Key contraventions, record-keeping and pay slips: Poor record-keeping and non-compliant pay slips were the main breaches, making it difficult to verify employee entitlements, employer identity, pay rates, penalty rates, and tax and superannuation details for both workers and inspectors. Contraventions of the FW Act commonly included failing to issue Fair Work Information Statements and/or Casual Employment Information Statements to employees at the commencement of their employment.
- Misunderstanding and misapplication of entitlements: These included underpayment of casual rates of pay, failing to pay leave loading entitlements, incorrect classification of employees, and misapplication of overtime and time-off in-lieu arrangements.
- Non-compliance with new pieceworker requirements: Some of the issues included workers not knowing their piece rate prior to starting work, and employers failing to pay workers on an individual piecework basis. Rather, many workers were paid as a group and not recording or monitoring hours worked. There needs to be a guaranteed hourly minimum rate of pay.
- Grower governance for outsourcing: Growers often lacked oversight of labour hire providers, relying on contracts that required compliance but rarely enforced it. Electronic systems tracked output and hours, but failed to record employment details or pay rates, making it difficult to verify minimum wage and entitlements. These gaps contributed to widespread non-compliance and challenges in ensuring fair treatment of workers.
What the report doesn’t say is that it’s difficult for employers to get it right every time. Larger companies with in-house expertise may still find gaps in pockets of their business, while SMEs often lack the internal expertise to navigate complex and changing legislation.
“We’ve seen how gaps occur in both of these scenarios, and we provide ongoing support to organisations to close them,” says Alan. With a collaborative approach, responsible employees feel more comfortable and leaders have peace of mind, knowing that they have put sufficient governance mechanisms in place to protect the business.
To learn more about how our Workplace Relations team can support your business, call Alan Doyle on 0488 600 528 for a confidential discussion, or enquire about our services
here.
