A Victorian horticulture company and one of its directors have been handed heavy fines for underpaying Vietnamese workers, falsifying records and pay slips to hide the underpayments and making unlawful deductions from a pay packet.
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The Fair Work Ombudsman investigated the Werribee South operation after receiving requests for assistance from two former employees who alleged unlawfully flat hourly rates of $13-$14 while working at the farm as pickers and packers.
The Federal Circuit and Family Court has subsequently imposed penalties of $130,806 against Lotus Farm Pty Ltd, which primarily produces tomatoes and cucumbers, and $28,987 against one of the company's directors, Son Thai.
Lotus Farm admitted it failed to meet the employees' minimum rates of pay, casual loading, overtime and public holiday penalty rates as set out in the Horticulture Industry Award 2010.
It was found the company also failed to provide the workers payslips or maintain records as required.
In doing so, one worker was underpaid $22,364 and the other $6,167 for periods of work between June 2017 and September 2020.
Mr Thai conceded he was involved in the underpayments and contraventions.
Acting Fair Work Ombudsman Michael Campbell said the employer's conduct was serious and the exploitation of vulnerable, non-English speaking migrant workers "is not something we tolerate."
"These substantial penalties against Lotus Farm and its general manager send a clear message that those who attempt to cover up significant underpayments, including with false payslips, will be found out and face costly consequences," he said.
Deputy Chief Judge Patrizia Mercuri characterised the conduct of failing to provide the employees with pay slips, then providing false pay slips to the FWO as "particularly serious" and that this "deliberate act" had the potential to derail and or extend the investigation.
Deputy Chief Judge Mercuri noted the importance that the punishment reflect the Court's "strong disapproval", particularly "given the nature of the industry and the vulnerability of the affected employees".
The court noted that Lotus Farm and Mr Thai had introduced changes to minimise the risk of non-compliance occurring again.
Meanwhile, the finding follows Immigration minister Andrew Giles warning employers previously found guilty of having exploited migrant workers that he will be asking them personally why they should not be permanently barred from hiring people on temporary visas in a direct hammer strike against bad actors in the industry.
The comments were made prior to the introduction of tough new prohibition measures on July 1 giving government powers to stop employers caught engaging in serious, deliberate or repeated forms of non-compliance from hiring the visas holders.
Large pockets of the agriculture industry rely heavily on migrant workers and labour hire operations for a steady stream of farm labourers.
However, both isolated and endemic exploitation of migrant workers have blighted the industry for years, including stolen wages and passports, extreme charges for food and lodgings, being tormented with empty promises of permanent residency and, in some cases, physical and sexual abuse.
Mr Giles also said employers subject to a prohibition notice will be named and shamed on the Department of Home Affairs website and the number of compliance officers will be increased to enforce the new regime.
The FWO has an agreement with the Department of Home Affairs, called the Assurance Protocol, where visa holders with work rights can ask for help without fear of their visa being cancelled.
