The Fair Work Ombudsman has commenced court action against a regional NSW employer, alleging a visa holder was underpaid more than $93,000 and false records were provided during its investigation.

The case is particularly relevant for farms employing migrant and visa-holder workers, with the FWO continuing to prioritise compliance involving vulnerable workers.

What Happened?

The worker was allegedly employed full-time and regularly worked between 51 and 77 hours a week.

According to the FWO, only four hours each week were paid into his bank account at the correct Award rate. The remainder of his hours were allegedly paid in cash at a flat rate of $15 per hour, regardless of when the hours were worked.

The FWO alleges this resulted in a total underpayment of $93,257 between August 2021 and May 2023.

The alleged underpayments included ordinary wages as well as overtime, weekend, public holiday and late-night rates. Annual leave, minimum break entitlements and an allowance were also allegedly underpaid.

The worker has since been back-paid in full.

However, the FWO also alleges that false employment records and payslips were knowingly provided to inspectors during the investigation. The allegations are now before the Court and have not yet been determined.

Individuals Also Facing Allegations

The proceedings aren’t limited to the employing company.

Two individuals associated with the business are also facing allegations that they were involved in some or all of the alleged contraventions.

This is an important point for employers and managers. Under the Fair Work Act, individuals who are involved in workplace law contraventions can also face penalties rather than liability necessarily stopping with the business.

The Lesson for Farms

Migrant and visa-holder workers have the same workplace rights and minimum employment entitlements as other employees in Australia.

For farms bringing in workers for harvest, seeding or other busy periods, pay arrangements need to reflect the hours actually being worked, not simply an agreed flat rate.

Depending on the applicable Award and employment arrangement, longer hours can bring overtime, penalty rates, allowances and other entitlements into the calculation. Records and payslips also need to accurately reflect the employee’s hours and pay.

This case also shows why informal arrangements can create problems quickly. Paying some hours in cash doesn’t change the employer’s obligations, and an employee agreeing to a rate doesn’t make an otherwise non-compliant arrangement compliant.

The FWO continues to identify migrant workers as an enforcement priority. For farms employing visa holders, getting the Award, classification, pay arrangement and record keeping right from the beginning is much easier than trying to reconstruct it after months of long hours.

Employing Visa Holders on Your Farm?

Speak with a ProcessWorxAg HR Advisor on (08) 9316 9896 or get in touch for guidance on pay rates, Award compliance and employment arrangements before taking the next