Fair Work Ombudsman: Horticulture makes up less than 1 per cent of workload

We look at the number of disputes about the horticulture industry the Fair Work Ombudsman handles each year. But the downward trend may not reflect the reality.

Complaints about pay and conditions in the horticulture make up just a fraction of the Fair Work Ombudsman’s work. Picture: Andy Rogers

DISPUTES about pay and entitlements in the horticulture sector make up less than 1 per cent of the Fair Work Ombudsman’s cases.

Figures show the FWO handles an average of 165 disputes about the horticulture industry each year – out of more than 26,900 completed matters each year.

The National Farmers’ Federation said it was encouraging to see a downward trend in most figures, with just 130 disputes in 2019-20.

But the Australian Workers Union said data was not a true reflection of what was happening on the ground, arguing vulnerable farm workers such as temporary migrants were unwilling to come forward with their complaints.

The two groups will go head-to-head at the Fair Work commission in July, as the AWU seeks to introduce a minimum rate of pay for workers on piece rates.

An analysis by The Weekly Times shows that between 2013-14 – the year the FWO’s landmark, five-year Harvest Trail Inquiry began – and 2020, the number of completed horticulture disputes has remained relatively stagnant, at an average of 165 each year.

Over the same time period, the FWO dealt with an average 26,969 disputes each year.

The numbers have not greatly changed since the Harvest Trail Inquiry – which recovered more than $1 million in lost wages to more than 2500 workers – concluded at the end of 2018, despite the FWO’s commitment to improving compliance in the sector through a new dedicated strategy.

In 2019-20 horticulture accounted for 130 disputes out of 20,914; in 2018-19, there were 162 horticulture disputes of 29,130.

Completed disputes includes litigations, infringement and compliance notices, early interventions and other dispute resolutions; the FWO did not provide breakdowns of how many cases in each category.

An FWO spokesman said improving compliance in the sector had been a focus since the Harvest Trail Inquiry, with more than 250 disputes investigated since 2019.

Those investigations have led to court penalties of $144,000 against a Victorian fruit farmers for underpaying two Malaysian pickers, he said.

An FWO update last year also showed that, of 245 businesses that were found to be non-compliant during the Harvest Trail Inquiry, 162 were no longer operating. Among the 83 businesses still operating, 38 were found to be non-compliant during 2019-20.

NFF chief executive Tony Mahar welcomed the FWO making horticulture a priority, and urged farm workers to report employers were not complying with the law.

“It is difficult to draw conclusions from raw data but it is encouraging to see that the recent numbers are trending in the right direction,” Mr Mahar said.

“Where a farmer has deliberately not complied with their legal requirements as an employer, they must be held to account”.

Australian Workers Union national secretary Daniel Walton, however, argued the numbers were “wildly unrepresentative” of the extent of the problems in horticulture.

The Harvest Trail Inquiry itself found poor record-keeping, cash payments and the transient nature of the workforce made it difficult to evaluate the extent of underpayments; while issues around the misuse of piece rates and low consumer awareness of workplace conditions were also identified.

“Piece-rates are deliberately vague and make actual underpayments difficult to prove,” Mr Walton said.

“In addition, workers know that taking a concern about underpayment to the FWO is usually a lot of hassle for no result.

“We also know that employees on temporary visas are the most likely to be exploited and they won’t engage with the FWO or any government body.”

Mr Walton maintained a royal commission on the horticulture industry was needed to “lift a lid” on the sector.

So far neither to Government nor Opposition have supported that call, which the unions first proposed in February this year.