Overseas farm worker an employee and covered by Award
- Created: 06 November 2019
The Industrial Magistrate has upheld a claim against a sole trader for contravening the Farm Employees Award 1985 (WA) (Award) by failing to pay an overseas worker certain award entitlements as a farm hand.
The claimant argued that the worker was not a volunteer, but an employee, and subject to the terms of the Award during her employment. The claimant asserted that the worker was not paid wages owed, sick leave and annual leave under the Award.
The respondent, a farm operator, denied the claim and argued that the worker was not an employee, but a volunteer, at her farm. The respondent argued that as part of an agreement, the respondent offered the worker food, accommodation and payslips for the purposes of obtaining her second-year working visa.
There were three issues for determination:
- Whether the worker was an employee or volunteer, in respect of the respondent’s business;
- Whether the worker’s employment, if she was an employee, was covered by the Award; and
- Whether the worker was paid in accordance with the Award, if she was an employee, and covered by the Award.
In relation to the first issue, the Industrial Magistrate considered the level of control exercised by the Respondent, and the payment of tax and superannuation on behalf of the worker. In the Industrial Magistrate’s application of common law legal principle, she found that, on the balance of probabilities, the worker was an employee of the respondent and not a volunteer.
Regarding the second issue, the Industrial Magistrate considered whether the employee was covered under clause 3 of the Award, which protects employees working in the farming industry. The Industrial Magistrate found, because the employee’s work involved all aspects of animal husbandry in connection with the breeding and grazing of horses, her employment was covered by the Award.
In relation to the third issue, the Industrial Magistrate found that the respondent contravened the Award and ordered the respondent to pay the claimant for the employee’s unpaid wages totalling over $10,000, sick leave on three occasions, sick leave on termination of employment and annual leave on termination of employment. The Industrial Magistrate also ordered the respondent to pay the claimant a penalty of $1,500 under s 93(4) of the Industrial Relations Act 1979 (WA).
The decision can be read here.