Harvest Labour

April 19, 2023

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Don't be Casual When Employing Harvest Casuals

 

Harvest is a busy time for farmers and their workers. The lead up to harvest comes quickly and the essentials of recruitment and compliance can often be overlooked. However, it is important that you get appropriate contractual arrangements in place early and that you cover workers’ lawful entitlements to avoid future disputes. 


Employees vs Contractors 


During harvest, labour is often engaged on either an employment or subcontract basis. From a risk perspective, it is important to know the difference between the two because there can be severe penalties if you misclassify an employee as an independent contractor (or vice versa). When considering whether to employ or subcontract your harvest labour, the following factors should be considered:


  • are there fixed working hours;
  • who controls and directs the work;
  • who bears the commercial and financial risk;
  • is there an ongoing expectation of work;
  • what is the method of payment;
  • how is superannuation to be dealt with; 
  • is tax pay-as-you-go (PAYG) or Goods and Services Tax (GST);
  • do you require pre-engagement medicals and or training; and
  • who covers insurance, workers compensation and public liability. 


If you engage a person to provide their labour, establish set hours of work for them and maintain control over the work the person does, then it is likely that the person will be (at law) considered an employee and you will be required to meet certain minimum statutory entitlements, such as payment of a minimum wage, regulated hours of work, leave (casuals are entitled to leave in certain circumstances) and superannuation payments.

 

On the other hand, if you engage a person who uses their own harvester (or other similar equipment) and contracts with other farmers to get their crops off, then the person is likely to be (at law) considered a contractor.


It is important to also note that some statutory obligations, such as safety laws, are likely to apply regardless of whether the person is an employee or contractor whilst working on your property.


Written Agreements 


Regardless of whether you engage employees or contractors, a written agreement should always be set up to establish the appropriate terms and conditions applicable to the relationship. For employees, it is important to have an agreement that provides for conditions such as the role, hours of work, pay and notice, to name a few. 


Employee Entitlements 


Employees will invariably be covered by an “Award”. An Award is a legal document which sets minimum terms of employment within a specific industry or occupation. The two Awards that are most applicable to harvest labour in Western Australia are the Pastoral Award 2020 (Cmlth) and the Farm Employees Award (WA). Again, it is important to understand which of these Awards will apply to your employees. This is a topic for another time. 


Information about the above Awards can be found using the below links:


 

What Should You Do


Taking the time to sort out employment contracts, and contractor agreements, can be the difference between a swift harvest or a stressful one and minimises the prospect of dispute. It is therefore important, and strongly recommended, to engage with a professional to assist you in this area. 


By Matilda Lloyd (Solicitor)


If you would like more information about harvest labour, the Awards or contractual agreements, please contact us on (08) 9321 5451 or by email at office@bailiwicklegal.com.au.


For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/


The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.

Bailiwick Legal newsletter June 2024 edition

By Jessica Brunner • June 19, 2024
Our June 2024 newsletter is now available. Have a read to find out what we have been up to in the first half of the year!

ISCC Spraying decision

May 14, 2024
The International Sustainability and Carbon Certification (ISCC) System has come to the attention of many Western Australian farmers recently, as the scheme has changed one of its policies regarding aerial spraying. What is the ISCC? The ISCC is one of the world’s largest voluntary sustainability certification schemes enabling participants to demonstrate they are producing materials in a sustainable way that meets or exceeds community expectations. In Australia it is widely used in the canola industry, enabling Australian canola growers to access the European biofuel market. CBH Marketing and Trading holds certification for the ISCC EU and ISCC PLUS programs, that cover canola, barley, oats, wheat and lupin, allowing WA growers to participate in both programs. Participating in the ISCC program can result in a premium on grain, however participants are subject to more stringent measures to satisfy sustainability accreditation requirements. Recent decision on aerial spraying ISCC Principle 2.6.2 prevents aerial spraying from taking place within 500 metres of a body of water. CBH has successfully lobbied for an exemption to this Principle, for farm dams and salt lakes of low ecological value. As part of its lobbying, CBH provided expert reports to the ISCC on the hydrology and ecology of WA farm systems. For farmers who are signed up to the ISCC program, this removes an obstacle during the season for weed management. The Principle does still require a 500 metre buffer for other bodies of water, including freshwater lakes, rivers, ponds or creeks. However, for those who farm yabbies and marron, this change may not be welcome. Marron and yabby farmers have noticed impacts on their populations where aerial spraying has taken place close to their properties, and aerial spraying can unintentionally damage natural vegetation, including young and old growth trees. For growers, it’s always prudent to follow best practice guidelines for aerial spraying to avoid spray drift – including monitoring weather conditions and the effect of water added to the chemical. For some farmers, this decision may prompt an examination of whether signing up to the ISCC program might be best for their business. In this circumstance, it is important to weigh up the potential benefits of the program compared to the sustainability accreditation requirements. For others, this decision is a timely reminder to stay up to date with best practice guidelines when it comes to spraying, particularly during the seeding season. For assistance with all of your agribusiness needs, contact Bailiwick Legal on 08 9321 5451 or email office@bailiwicklegal.com.au By Ciara Nalty (Solicitor) For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.

Annual Wage Review on the horizon

May 14, 2024
How does the Annual Wage Review affect workers and small business owners? Each year, the Fair Work Commission reviews the National Minimum Wage and the minimum wages set out in awards. Cost of living and inflation are front of mind for both employers and employees, and this year’s Annual Wage Review is likely to see an increase in the minimum wage and award rates. The Annual Wage Review is conducted by an Expert Panel, which takes submissions from interested groups, including the Federal Government, unions, and business lobby groups. The Federal Government’s submission to the Wage Review this year called for an increase to the minimum wage, though not specifying an amount. The Australian Chamber of Commerce and Industry has advocated for an increase of 2 per cent, at most. The announcement will likely take place in early June and any increase to the national minimum wage will take effect in the first full pay period on or after 1 July 2024. Failure to pay employees at least the minimum rate that is set out in an applicable award can result in penalties, including requirements for back pay and fines. The Fair Work Ombudsman uses its enforcement powers to issue compliance notices to employers, and recovered $14.8 million in unpaid wages in 2022-23. Small and medium businesses are subject to the same scrutiny as large businesses. For business owners, this is a timely reminder to review employment agreements and payments to staff. You should be conscious of which awards cover your staff members, as award rates for each level increase commensurate with the national minimum wage increase. It is also important to be aware of employee entitlements and set-offs, to ensure you are paying employees what they’re entitled to and avoiding future claims. If you are not sure what award your employee is covered by, have a question about employment conditions or require any other assistance with employment and workplace matters contact Bailiwick Legal on 08 9321 5451 or email office@bailiwicklegal.com.au . By Ciara Nalty (Solicitor) For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
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