“Protecting the rights of workers is essential to the future profitability and sustainability of Australian agriculture,” – APAL CEO, Phil Turnbull.
Seasonal farm workers employed on apple and pear orchards are essential to the industry and their contributions are highly valued by growers. Without them the industry would not have enough workers to pick and pack fruit. It is therefore very important that there are enough seasonal farm workers and that they are treated and paid fairly.
Workplace laws have evolved to ensure workers are correctly treated. Increasing scrutiny, legal requirements, fines and market demands all act as checks to ensure growers pay and treat their workers fairly and also act to create a level playing field so employers who do the right thing are not disadvantaged.
All growers, even those who use a labour hire provider to source seasonal farm workers, are responsible for ensuring their workers get paid and are treated fairly. Being able to demonstrate fair treatment will help to ensure businesses attract high quality repeat labour, delivering increased productivity.
APAL is taking a leadership role to bolster a fair employment culture across industry and support the creation of a level playing field to ensure growers who do the right thing, are not disadvantaged.
Follow the ‘Hire Right’ check list for useful tips that will help ensure your labour hire practices are up to scratch.
Read more about ‘accessorial liability’ on the FWO website, which sets out the responsibilities of growers to workers supplied by labour hire providers.
Below are a series of Q&A and resources aimed at helping growers and workers ensure proper labour practices are in place.
Growers can contact APAL for more information.
About seasonal farm workers
Who are seasonal farm workers and where do they come from?
Seasonal farm jobs are temporary employment in the agricultural industry, dominated by peak season harvest opportunities in picking, packing and tending to horticultural crops including apples and pears. The number of positions in an orchard changes seasonally and from year-to-year.
People employed in these jobs are called seasonal farm workers. They typically comprise a large proportion of people visiting Australia on Working Holiday visa (subclass 417) or Work and Holiday visa (subclass 462, or a Seasonal Worker Programme (SWP) visa. Only a small proportion of Australian citizens and permanent residents are employed in these jobs.
Is there a shortage of seasonal farm workers?
In 2013-14 there was a peak in the number of second year 417 visas, this has since declined year-on-year. However, over the same time period, the number of SWP visas granted increased and, with the introduction of 462 visas in 2016-17, this number of workers has also increased. By calculating the full-time equivalents (FTEs) each visa contributes, the overall number of FTEs has increased since 2015-16.
Nevertheless, sourcing enough labour remains a significant issue for apple and pear growers, so it is important there is an ongoing and reliable supply adequate to meet their needs. Moreover, horticulture is increasing its footprint and intensity, stressing the short worker supply.
How do growers recruit seasonal workers?
Growers recruit workers through various mechanisms including:
- employing ‘walk-ins’ who arrive at their farms and ask for work;
- by arranging with a local hostel who may act to connect their residents with employers;
- directly advertising and employing people who they find suitable;
- through referrals, e.g. previous staff recommend the employer and connect their friends and family with them;
- staff returning year after year (relevant to SWP and resident workers); and
- using a labour hire provider who sources and manages the administrative aspect of employing staff.
Each growing business identifies the recruitment mechanism that works best for them. However, regardless of that mechanism, growers are responsible for their staff’s fair pay and treatment.
Growers need to be savvy about their labour needs. Use your data to assist – know how many bins to pick, when, bin picking rates etc. Being prepared helps you professionally address your labour needs whichever source you use.
What is APAL doing to help protect workers?
APAL is taking a leadership role to help industry employers understand their obligations and continue to improve their practices around paying and treating workers fairly. Through this work APAL also aims to bolster a fair employment culture across industry and support the creation of a level playing field to ensure growers who do the right thing, are not disadvantaged.
APAL also recognises that part of the challenge is ensuring there are enough legitimate seasonal farm workers in Australia for growers to employ. Through active membership of the NFF Horticulture Council, APAL has been vocal about the need to address Australia’s growing labour challenge head-on. APAL supports the development of a tailored visa to deal with the unique challenges faced by the horticulture industry. Specifically, APAL wants a visa that attracts workers from a wider group of countries. It needs to be portable, administratively simple and low cost so as to allow small growers to participate, while also ensuring the proper safeguards to protect workers from any exploitation.
Questions from growers
What are my legal obligations to my seasonal workers?
Employers of seasonal farm workers must pay and treat their staff fairly and in accordance with the laws of Australia.
The most reliable place to get information about pay rates for seasonal farm workers is via the Fair Work Ombudsman website. Some particularly useful links for employers include:
- Pay Guide – Horticulture Aware 2010: outlines minimum hourly pay rates for people working in horticulture.
- Piece rates – Horticulture Award 2010: explains what a piece rate is and gives some examples of how it could be calculated. A template for a piece rate agreement can be downloaded from here as well.
- Information regarding other aspects of employing seasonal farm workers such as leave allowances, hours of work, superannuation contributions etc are outlined in the Horticulture Award 2010.
Using a payroll package that automatically updates as tax and other legislated changes come into play is a good starting point. Being a member of an association which specialises in industrial relations can also be helpful.
I’ve heard that labour hire providers have to be licensed? Is this right?
Different states have different laws when it comes to labour hire agency licensing. As at November 2018:
- ACT: No licensing, however there is an Inquiry into the Extent, Nature and Consequence of Insecure Work in the ACT.
- NSW: No licensing.
- Queensland: Mandatory licensing required under the Labour Hire Licensing Act 2017. More information on the Labour Hire Licensing Queensland website.
- Victoria: A licensing system is being established under the Labour Hire Licensing Act 2018. More information on the Victorian Labour Hire Authority website.
- South Australia: Licensing currently not open with the Labour Hire Licensing Act 2017 is expected to be repealed.
- Tasmania: No licensing.
- WA: No licensing.
How can I check if my labour hire agency is paying my workers properly?
To help ensure that a labour hire provider is paying workers correctly APAL recommends growers follow our ‘Hire Right’ checklist.
Even if growers take all these measures, deception can still occur. The transient nature of seasonal farm work makes it hard to keep track of individual faces and names. Labour hire providers can deceive you in regard to who is working in your orchard or shed at any given time. Employees may also feel too scared to confess to problems or be unable to communicate any issues they may be experiencing in English. Nevertheless, you should take every reasonable measure to prevent such illegal activity and the suggestions above may go some way to preventing these types of problems.
It is important to remember that regardless of how you employ staff you must provide a safe place of employment.
Some growers are investigating using innovative new fingerprint technology that could be used in the orchard to identify workers quickly and accurately on arrival on any given day. This would ensure the individuals working were legitimate and verified and would go a long way to preventing illegal treatment of workers.
Is it still OK to pay piece rates?
Yes, it is OK to pay piece rates where the employee has agreed to them. However, it is important to be aware that individual ability varies greatly and the intent of the law is that “the average competent employee (can) earn at least 15 per cent more per hour than the relevant minimum hourly rate in the award”.
Piece rates for seasonal farm workers employed in the apple and pear industry come under the Horticulture Award 2010. The Fair Work Commission summarises piece rates under the Horticulture Award 2010 in the following way:
“An employee can enter into a written agreement to be paid pieceworker rates under the Horticulture Award. This agreement has to be genuinely made without coercion or duress.
A pieceworker isn’t guaranteed a minimum hourly or weekly rate that applies to the type of work they do, or the national minimum wage.
The piecework rate has to allow the average competent employee to earn at least 15 per cent more per hour than the relevant minimum hourly rate in the award. Casual employees also get a casual loading.
There are many factors that affect what an average competent employee is. There’s no standard across the horticulture industry.”
For growers in Victoria, Fruit Growers Victoria (FGV) publishes a piece rate guide for its members each season. To set these rates, FGV meets with key growers and analyses the bins picked, taking into consideration the length of time it takes to pick bins of fruit and environmental conditions. The price per bin that it publishes is a guide and growers are encouraged to keep productivity records to allow them to show how their rates have been calculated. Any changes must be agreed in writing by each worker.
I want to demonstrate that my fruit is grown using workers who are paid and treated fairly – how can I demonstrate that? I’ve heard about the Fair Farms certification scheme – What is this and how does it help protect workers?
Various certification schemes exist to help growers demonstrate that they comply with fair work practices and that their employees are fairly paid and treated. Three options are emerging in Australia:
- The Fair Farms Initiative (managed by Growcom) is currently being piloted and may be rolled out nationally in 2019. It has in principle support from the FWO and leading retailers in the domestic market. The program comprises a standard benchmarked against Australian workplace laws, employer training to improve employment standards, certification including a mechanism to enable third-party audits, and data capture to enable industry and customer reporting in relation to compliance.
- A.P. is an international farm assurance program that certifies producers who meet safe and sustainable standards. With more than 40 standards and add-ons the program is already used by growers in Australia to certify other aspects of their productions – such as food safety.
- Sedex is a membership organisation and collaborative platform for sharing responsible sourcing data on supply chains.
- StaffSure is a certification scheme managed by the peak industry body for the recruitment and staffing industry – Recruitment Consulting Services Association. StaffSure aims to help businesses, including labour hire businesses in the horticulture industry, to prove their integrity.
Questions from workers
Where do I find out about my rights in terms of pay? What are the legal pay rates for seasonal farm workers?
Seasonal workers have the same rights at work as other employees in Australia. The most reliable place to get information about your rights, responsibilities and pay is via the Fair Work Ombudsman website. Some particularly useful links for seasonal farm workers include:
- Pay Guide – Horticulture Aware 2010: outlines minimum hourly pay rates for people working in horticulture.
- Piece rates – Horticulture Award 2010: explains what a piece rate is and gives some examples of how it could be calculated.
- The P.A.C.T. (pay and conditions tool): online tool run by the Fair Work Commission to help employees calculate if they are getting paid fairly.
What’s the difference between piece rates and hourly pay? What piece rate should I be getting paid? How do I know if my piece rate is fair?
Seasonal farm workers can be paid an hourly pay rate – so you get paid based on the number of hours you work. Or you can be paid ‘piece rates’ where you get paid by the piece or, in other words, the amount picked, packed, pruned or made.
Minimum hourly pay rates are set under the Horticulture Award 2010 and may be updated annually. For the hourly rates from 1 July 2018 view the Pay Guide – Horticulture Aware 2010 and for ongoing updates check the Fair Work Ombudsman website page on pay guides under the Horticulture Award.
Piece rates for seasonal farm workers employed in the apple and pear industry come under the Horticulture Award 2010.
More information on piece rates can be found on the Fair Work Ombudsman website.
There is no national pre-defined benchmark piece rate for the apple and pear industry. However, it is based around what an average competent worker would be expected to pick. This is influenced by the type of picker and crop load. It may not be static but needs to reflect your workplace conditions. Each change needs to be agreed in writing.
How can I check if my employer is paying me properly?
Within one day of being paid you should receive a payslip outlining all the details of your work. You should also be keeping a record of your own working hours in a diary or by using the ‘Record My Hours’ app. You can compare your personally recorded hours and what you expect to get paid with what is on your payslip. If there is a discrepancy or you don’t fully understand what is on your payslip you should speak to your employer about it if you feel comfortable to do so. The FWO has an online course on difficult conversations which seasonal workers can do to help them through this process.
If you have concerns about how you are being treated or paid at work you can make an anonymous report to the FWO. Find out more about your rights as a person working on a visa in Australia. Contacting the FWO is a free service.
What paperwork should I expect from my employer before I start work?
Most employers will supply each new employee with an induction pack. This may include forms requiring you to share certain details to ensure you get paid correctly including name, tax file number and bank account number.
The FWO’s guide to starting a new job has lots of handy tips to help you prepare for your first day of employment, understand what to expect and what information you should take with you. You can also complete the FWO’s starting a new job online course to help get prepared.
What can I expect my employer to do to ensure I am safe work
All employers – including in the apple and pear industry – have a responsibility to keep their employees safe at work.
All employers in the apple and pear industry should be providing all new workers with a safety induction before you start working. You should also be informed of any specialised safety equipment or clothes required for the job before you start. Many employers will provide specialised safety equipment and clothes but you may be required to provide some of your own too such as sun hats and sunscreen.
If you are concerned about your safety at work you should raise your concern with your supervisor and/or employer. Each state in Australia also has a work safety authority that you may contact if they have an issue or concern. Visit Safe Work Australia for more information.
If I am concerned about my living conditions – who can I go to for help?
Some employers or labour hire providers may offer accommodation, transport or food for seasonal workers. Accepting these additional services should not be a condition of your employment and the rates charged need to be reasonable and at competitive market rates.
Farm-based employers may provide accommodation for their seasonal workers where it is more convenient for the workers, and in locations where other accommodation options may be limited. Employer-provided accommodation – whether it be camping or a room in a shared building – must meet minimum basic requirements including being clean and hygienic, safe, and with suitable amenities provided, including toilets, washing facilities, rubbish disposal and access to clean drinking water etc. Exact requirements may vary between states depending on state-based legislation.
If you have a concern about your employer-provided accommodation or the rates for transport that you are being charged you should raise it with your supervisor and/or employer. Note that any deduction from your wage for such services must be agreed to in writing. The FWO has an online course on difficult conversations which you can do to help you through this process.
APAL articles on labour
APAL has a long history of providing advice and resource to growers to promote fair pay and treatment for overseas workers. Previous labour and employment articles may be found on the APAL website. A selection of articles communicating best practices, case studies and the legal requirements of employers in the apple and pear industry include:
- Fair Farms Initiative supports growers and farm workers (27 Mar 2018)
- Best practices around managing harvest labour (14 Feb 2018)
- Investing in international employees (30 Jan 2017)
APAL’s government submissions
APAL is an active member of the National Farmers Federation Horticulture Council which represents the interests of Australia’s $11 billion horticulture sector and will advocate for the best interests of horticultural producers. APAL has signed the NFF Horticulture Council Memorandum of Understanding stating the Council will ‘strive for more efficient, effective, cohesive horticulture policy and advocacy that affects all Agriculture at the national level’.
APAL has previously been active in supporting the industry by voicing support for international workers and communicating their value and importance to the industry and representing growers’ interests to government to ensure a reliable supply of labour is available. See all government submissions on the APAL website and here is a selection of those specific to labour:
- APAL statement in response to proposed changes to Horticulture Award (16 May 2018)
- Voice of Horticulture: witness statement to Fair Work Commission (at a time when APAL was a member of the Voice of Horticulture) (21 Dec 2016)
- Voice of Horticulture: Working Holiday Maker Visa Review Submission (at a time when APAL was a member of the Voice of Horticulture) (31 Aug 2016)
- APAL submission on the ‘backpacker’ tax to Senate inquiry (21 Oct 2016)
- APAL submission to Seasonal Worker Inquiry (26 Aug 2015)
- Fair Work Ombudsman ‘Inquiry into the wages and conditions of people working under the 417 Working Holiday Visa Program’: statement | report (15 Oct 2016)
- Fair Work Ombudsman – ‘Harvest Trail Inquiry’ report (November 2018)
- Fair Work Ombudsman – Harvest trail campaign: resources to help employers and employees in horticulture understand their rights and obligations. Includes:
- Horticulture Award 2010