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WA Strawberry Picking - Are These Employment Terms & Conditions Legal?

Discussion in 'Employment Law Forum' started by mexpirate, 28 September 2014.

  1. mexpirate

    mexpirate Member

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    Hi folks, pretty sure some of the stuff written here is not legal under Australian employment law - these T&Cs & Piecework agreement are online available for employees to view, but at no point is anyone presented with a hard copy or asked to sign in agreement:

    "Employment Terms and Conditions
    Before being accepted for the job, all workers are required to attend the farm for an unpaid trial. You will be required to try both picking and packing work so that the company and yourself can assess your suitability for the job. This trial includes site induction and some basic training and takes approximately half a day to complete.

    All employees (including those that have just commenced work) must give fourteen (14) days' written notice of their intention to leave. Employees that fail to give the required notice or that leave without working on their rostered days during the fourteen (14) day notice period may forfeit any wages owing to them by the Employer.

    Payment is processed weekly. Payment is made for the week ending Sunday and is made on the Thursday that falls eleven (11) days after the week ending Sunday.

    The rate of pay advised by the Employer for both hourly and piece rate work is inclusive of all relevant superannuation and taxation that may need to be paid by the Employer.

    The Employee authorises the Employer to deduct any monies owing from the Employee to the Employer for incidentals supplied by the Employer including (but not limited to) accommodation charges of $11.00 per day, one-way bus charges of $3.00 per trip, return bus charges of $6.00 per trip and food charges at cost, directly from the Employees wages.

    Cheating, physical abuse or verbal abuse are not tolerated and will result in instant dismissal.

    Consumption of alcohol and/or drugs is not permitted onsite at any time. Persons found to be intoxicated onsite will be instantly dismissed and will forfeit any wages owing.

    It is the Employees responsibility to ensure that they have a the right to work in Australia. Employees that to are found to be ineligible to work in Australia will be instantly dismissed and will forfeit any wages owing.

    Any Employee that completes registration through the [Employer name redacted] online portal and is issued a [Employer name redacted] ID number will be considered to have read and accepted the Employment Terms and Conditions and the Piecework Agreement and will be bound by the terms of these agreements.

    Piecework Agreement
    Agreement between:
    [Employer name and address redacted] ("Employer") and You ("Employee")

    The Employer and the Employee agree to enter into this Piecework Agreement (Agreement) under clause 15 (Pieceworkers) of the Horticulture Award 2010 [MA000028] (Award). The Employer and Employee mutually agree as follows:

    1.The work to be performed under this Agreement is as described below (work):

    Fruit picking, fruit packing, runner planting and general farm duties.

    2.The minimum piecework rate/s which must be paid by the Employer to the Employee for performing the Work is as specified in Schedule A to the Agreement.

    3.The piecework rate/s fixed by this Agreement enables the average competent Employee to earn at least 15% more per hour than the minimum hourly rate prescribed in the Award for the type of employment and the classification level of the employee.

    4.The piecework rate/s in this Agreement must be paid for all work performed in accordance with this Agreement and will be paid instead of the hourly or weekly wages specified in clause 14 of the Award[2]. The calculation of piecework rates for casual employees will include the prescribed casual loading.

    5.The piecework rate/s in this Agreement will be reviewed in light of any changes in the Award rate, or in the nature of the work, or the conditions under which it is performed. This ensures that the minimum requirements set out in clause 15 of the Award continue to be met.

    6.The Employee’s earnings will depend on their productivity. This Agreement does not guarantee that the Employee will earn at least the minimum ordinary time weekly or hourly wage in the Award for the type of employment and the classification level of the Employee or the National Minimum Wage.

    7.A copy of this Agreement is available through the [Employer name redacted] online portal.

    8.The Employee is employed as a casual employee.

    9.The date this agreement starts is the date that the Employee is registered with [Employer name redacted].

    SCHEDULE A
    Piecework rates

    Minimum of $1.55 per tray (3kg net).

    This rate may be higher depending on the fruit size and crop yield. Please check with our foreman for the current rate.

    $0.15 per punnet, for each carton of punnets completed.

    $20.00 per carton of approximately 500 runners

    And / or

    $40.00 per carton of approximately 1000 runners

    Crop type:
    Strawberries"

    Just to add, CASUAL employee - which I understand under Australian law gives the employee the right to quit without notice. In order to earn the legal minimum wage (including casual loading) employees would have to pack a punnet on average every 24 seconds ($0.15 a punnet) something that is undoubtedly impossibgle, especially considering the unpaid tasks required - fetching boxes, labelling punnets, sorting bad fruit, toilet breaks, getting more strawberries for packing etc etc. Also worth noting they are expecting employees to work 8.00am until 10.00pm 6 days a week, regularly without the legally required breaks every 5 hours.
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi there,

    Yes, casual employment gives either party the right to terminate employment without notice or with limited notice. 14 day notice is more akin to a part-time or full-time contract.

    Further, there may be a problem with an unpaid trial period.

    I would suggest speaking with the Fair Work Ombudsman and enquire about these terms. They are a free service that advises on employment matters in Australia and offers dispute resolution services between an employee and employer. They should be able to advise you on the legality of these terms.

    Some terms, such as withholding wages if notice is not met (in part-time and full-time employment) is normal. As well as the terms about payment on weekly basis, or wages being inclusive of tax and superannuation.
     
  3. mexpirate

    mexpirate Member

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    Just to clarify, I terminated employment (Strawberry PACKING) without notice 23rd September due to the unbearable working conditions

    I have already contacted the fair work ombudsman who indicated that for the T&C's/piecework agreement to be enforceable they should be signed by the employee - they were however not able/prepared to look at detail in to the contract/agreement as it was just a phone enquiry. May start a complaint/dispute resolution with them against the employer which should mean they take a closer look at the details.

    So if I understand your interpretation correctly, there is not an issue with the "witholding wages" clause in itself, but it cannot be legally applicable in this case as it clearly states it is casual work - weekly basis/tax & super clauses are obviously no issue (apart from the ludicrously low pay rate)

    I am thinking that if the piecework agreement can be shown to be invalid (through the lack of a signature) that I may be able to attempt to claim the legal minimum wage for hours worked ($21.09 inc casual loading I believe), I may struggle to accurately demonstrate the actual hours worked as there is no clocking in/out but does this seem like a reasonable basis of a potential claim or could this muddy the waters and perhaps would be better just trying to claim the $641 (minus super/tax) that they would ordinarily pay, or try for the $1,687 based on 80 hours @ $21.09

    Unpaid trial period was only 3-4 hours and worth about $12 for picking, with the packing work un-tracked so really not too concerned about that element

    Many Thanks for your reply.
     
  4. lawanswers

    lawanswers Moderator
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    Sarah J likes this.
  5. mexpirate

    mexpirate Member

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    Nice, thank you for that link - good to have something in writing I can challenge them with and to back up what the fair work ombudsman had said.

    There's anything up to 250 people - all working without a valid piecework agreement then...
     
  6. Sdred

    Sdred Member

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    Hi Mexpirate, I am a journalist looking in to something similar for a story I'm working on and would like to speak with you about your experience. You can email me dredge.suzanne@abc.net.au if you're happy to chat.
     

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