Blueberry farmer penalised over serious record-keeping failures for 417 visa-holders

18 May 2016

A NSW blueberry farmer who employed dozens of overseas backpackers to pick his crop has been penalised $13,005 for serious record-keeping failures.

The Federal Circuit Court has imposed the penalty today against Gurmakh Dosanjh, a farmer at Sandy Beach on the NSW Mid-North Coast, following legal action by the Fair Work Ombudsman.

Dosanjh's property was selected for auditing in 2014 as part of the Fair Work Ombudsman's national Harvest Trail project.

Fair Work inspectors discovered that records of 60 casual employees were limited to their first names and how many buckets they picked.

Under workplace laws, employers must keep employment records for all employees, including basic personal details and details of pay rates and hours worked.

Dosanjh also breached workplace laws by failing to issue employees with pay-slips within one day of being paid and failing to have written piecework agreements in place for employees who were paid per-bucket.

Imposing the penalty, which is 75 per cent of the possible maximum, Judge Tom Altobelli described the contraventions as "extensive".

"It is hard to imagine a more superficial or half-hearted attempt to comply with any standard of record keeping, let alone the statutory standard," Judge Altobelli said.

Most of the fruit-pickers Dosanjh employed were young overseas backpackers in Australia on the 417 working holiday visa, many from non-English speaking countries.

Dosanjh was required to pay the employees minimum rates as stipulated in the Horticulture Award.

Under workplace laws, employers can only pay piece rates if there is an agreement in writing signed by the employee.

Judge Altobelli found that Dosanjh's "minimalistic" record-keeping had made it impossible for the Fair Work Ombudsman to pursue him for underpaying his vulnerable employees.

The Court found that Dosanjh's workers were paid $6 for each bucket of blueberries they picked.

"The harsh reality in this case is that the Respondent's failure to keep records makes it impossible to calculate the precise quantum of the underpayments, and thus, to investigate the Respondent’s compliance with minimum entitlements under the Award," the judgment says.

"The record keeping was so minimalistic that it was not even possible for the Respondent, let alone the (Fair Work Ombudsman), to contact the vast majority of the employees in question."

Judge Altobelli found that Dosanjh’s contraventions were not deliberate, but that "his culpability cannot be obviated, or mitigated, by ignorance of the law, particularly in the circumstances of a case where his employees are vulnerable, palpably so."

He also found that record-keeping was a "critical tool in assessing compliance with workplace laws" and "the bedrock of compliance with the (Fair Work) Act and the minimum standards under a modern Award".

"There is a need to send a message to the community, and particularly to employers, that employers must provide their employees with the current entitlements, and steps should be taken to understand and comply with those entitlements," he said.

Fair Work Ombudsman Natalie James says failing to keep proper employment records is a serious matter and contraventions involving overseas workers are particularly serious.

"We have issued dozens of on-the-spot fines to horticulture businesses for record-keeping breaches since we launched the Harvest Trail project in mid-2013 and Court action was warranted in this case because of the blatant contraventions affecting so many vulnerable employees," she said.

Ms James says the Fair Work Ombudsman is devoting considerable resources to ensuring the many farms around the country that rely heavily on labour from overseas workers are complying with workplace laws.

The Harvest Trail was launched in response to ongoing requests for assistance from employees in the horticulture sector and confusion among growers and labour-hire contractors about their workplace obligations.

"We are conscious many fruit pickers are young overseas workers, who may be vulnerable if they are not fully aware of their rights, are reluctant to complain or face language barriers," Ms James said.

"It's important we are proactive about ensuring they receive their full lawful entitlements."

The Fair Work Ombudsman is also conducting a national review of the wages and conditions of overseas workers in Australia on the 417 working holiday visa after receiving allegations that some unscrupulous operators were exploiting backpackers.

The Fair Work Ombudsman recovered more than $2.2 million in underpaid wages and entitlements for 513 visa-holders from disputes completed by the Agency last calendar year - an average of $4317 each.

The Agency received a total 1916 requests for assistance from visa-holders in 2015, or 12.6 percent of the total number lodged by all workers.

Workers on the 417 backpacker working holiday visa accounted for 807 requests for assistance last year. Almost $1 million of all money recovered for overseas workers last year was for 250 employees on 417 working holiday visas.

Employers and employees seeking assistance can visit or contact the Fair Work Infoline on 13 13 94. An interpreter service is available on 13 14 50.

Information on the website to assist people from culturally and linguistically diverse backgrounds has been translated into 27 languages.

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