Employment & Industrial Relations Update - KPMG Law
Recently, there has been an increased focus on the rights of employees, particularly with respect to the underpayment of wages by employers and the increasing casualisation of the workforce. This article briefly outlines the recent trends regarding these matters in light of action taken by the Fair Work Ombudsman (‘FWO’) and other bodies to address these issues.
The FWO has enhanced its crackdown on employers who underpay their workers. In this respect, foreign workers are involved in more than three-quarters of legal cases commenced by the FWO against employers. The FWO has found that foreign workers on visas with limited English language skills, such as fruit and vegetable pickers, are some of the most commonly exploited workers. As a result, the FWO has dedicated significant resources to addressing the exploitation of vulnerable workers on Australian farms. In this regard, the Federal Circuit Court of Australia recently fined a mango trader over $25,000.00 for paying foreign workers as little as $2.68 per hour.
In a decision that should provide some comfort to employers who may struggle with the strict procedural obligations imposed by some industrial instruments, the Federal Circuit Court recently found that a farm hand engaged for almost eight months was a casual rather than a full-time employee. This decision was made on the basis of the particular facts of the case, despite the fact that the employer failed to specify upon hiring the farm and that his employment was casual in nature, as was formally required under the applicable modern award.
In the context of the increasing casualisation of the workforce, while it is yet to take effect, the Fair Work Commission’s decision that the Pastoral Award (and 85 other modern awards) should provide employees with a right to apply for permanent employment following 12 months’ service as a casual will have a significant impact across a number of industries, including the dairy industry.
The current focus on rights of employees in light of the numerous underpayment claims against employers, as well as the increasing casualisation of the workforce, will continue to impact and alter the employment and industrial relations climate. In these circumstances, it is imperative that employers comply with their obligations under the applicable legislation and industrial instruments.
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