Keeping up with changes to harvest labour options

The last 12 months have seen many changes to the way harvest labour can be sourced and paid. Most of these changes have been good for growers with several programs expanded, new ones introduced and some red tape removed. However, other changes will mean growers need to remain vigilant to make sure they comply with some newly introduced laws.

Here is a brief summary of some of the changes.

Horticulture Award

The lengthy four year process to review the Horticulture Award was finally completed on 2 April 2019 when the Fair Work Commission handed down a decision that changes to the Horticulture Award would be implemented from the first full pay period on or after 15 April.

The Award changes are significant, and amongst other things now mean that casual employees are entitled to a night loading and overtime.

Key changes that growers need to understand and comply with include:

  • Casual employees are now entitled overtime pay. This means that casual workers are now required to get paid 175% of the casual hourly rate (including the 25% casual loading which previously applied) when they work more than 12 hours in a single day or engagement, or more than 304 hours in an eight-week period.
  • A night loading now applies. Casual employees are also entitled to a 15% night loading if they work between 8:31pm and 4:59am. This is paid in addition to their 25% casual loading. Both loadings are calculated on their minimum hourly wage.
  • Overtime provisions do not apply to piece rate workers. Where workers are paid on a piece rate basis (i.e. where pay is related to how much you pick or pack), no overtime or night loading applies.
  • Public holiday penalty rates clarified. Although there have been no changes to public holiday penalty rates, the Commission’s decision reaffirmed that casual employees who work on a public holiday are paid 225% of their minimum hourly wage (this includes their 25% casual loading). Employees get this rate whether they’re working overtime hours or normal hours.

There is a lot of detail contained in the updated Award. If growers are unsure what their obligations are they should contact the Fair Work Ombudsman or their industry association for assistance.

Options for sourcing workers

While an agriculture visa may be the desired outcome for many growers, there seems little prospect of this new visa class being introduced in the medium term. Fortunately there are a number of existing visa classes that allow overseas workers to do farm work.

The good news for growers is that the number of people doing horticulture work on these visas is growing strongly.

There are two main types of visas that are issued to workers who pick and pack fruit and vegetable crops:

  • Working Holiday Visas, subclasses 417 & 462 – these are commonly known as the ‘backpacker visas’. They allow workers from numerous countries to come to Australia and work from as little as one day, up to three years, either with the one grower or with a number of employers.
  • Temporary Work (International Relations) Visas, subclass 403 – this includes two visas.  The Seasonal Worker Programme (SWP) allows workers from the Pacific islands and Timor Leste to travel to Australia to work for periods of up to nine months.  Importantly, workers have the opportunity to return in following seasons.  The other is the Pacific Labour Scheme (PLS) which allows workers to stay for up to three continuous years.

Visa conditions constantly changing

While some of these visas have been available for many years, they are constantly being changed to make them more attractive for workers and better suited to the needs of growers.

Working Holiday Visas

Most backpackers doing horticulture work will be on the 417 Working Holiday Visa. Citizens from five countries – the UK, Taiwan, South Korea, France and Italy – are the ones most likely to complete the three months regional work required for a visa extension.

The lesser known working visa – the 462 Work and Holiday Visa, has also allowed people from a number of countries to come to Australia to work on farms. Because previously there was no opportunity for an extension, very few people under this visa chose to do harvest work. That’s now changing rapidly following the Commonwealth Government’s November 2018 changes to the 462 visa. These visa holders can now gain two 12-month visa extensions and effectively work continuously for up to three years with the same business. These changes also apply to 417 visa holders.

As well as being eligible for extensions, 462 visas are now available to a much wider range of countries. Vietnam, Malaysia, Indonesia, China, Mexico, Spain and Argentina are amongst the current group of 25 eligible nations. The Department of Home Affairs is currently negotiating to allow more countries to access this visa, with India, Brazil, Fiji and the Philippines likely to join the program in the next 12 months.

Following the disastrous bushfires that impacted many horticulture producing areas, on 17 February 2020 the Commonwealth Government announced more flexibility for the WHM visas.  Backpackers who perform paid or volunteer bushfire recovery work can also qualify for a visa extension, and can work for up to 12 months with the same employer or organisation without requesting permission from the Department of Home Affairs.

Seasonal Work Programme and Pacific Labour Scheme Visas

Since its inception in 2012, the SWP has undergone constant change to make it more suitable to grower needs. Major changes introduced in 2018 include:

  • increasing the maximum amount of time workers can stay in the country from six to nine months
  • reducing the grower contribution toward airfares from $500 to $300 per worker
  • increasing the validity of compulsory labour market testing from three to six months.

In late 2019 the Regional Agriculture Migration Package was introduced that included further changes to the SWP. The more flexible Seasonal Worker Programme Regional Pilot that is running in the regions of Sunraysia (NSW/Victoria); Goulburn/Murray (Victoria) and the Riverina (NSW) will be extended until 30 June 2022.

From 1 January 2020 all Approved Employers in the four pilot regions of Sunraysia, Goulburn/Murray, Riverina and Wimmera-Mallee will, with approval, be able to share seasonal workers.  This will mean that smaller farms and growers can potentially access seasonal workers for shorter periods of time.

The SWP grew by 3,000 workers in 2018-19 to a total of 12,000. This is an increase of 44%, the largest absolute increase ever and one of the highest percentage growth rates since the inception of the Programme. Three sending countries dominate the SWP with 85% of workers coming from Tonga, Vanuatu and Timor-Leste.

The PLS is a new program that commenced on 1 July 2018. The PLS enables Pacific island and Timor-Leste citizens to undertake semi-skilled work opportunities for up to three continuous years, including in horticulture. This program is ideal for sourcing fork lift and tractor drivers, or supervisors. Further good news surrounding Temporary Work Visas is that they are demand-driven and uncapped, with no shortage of highly motivated people wanting to come to Australia to work.

Horticulture Industry Labour Agreement

Horticulture growers will now be better able to fill skilled and semi-skilled vacancies in their business with a Horticulture Industry Labour Agreement (HILA) becoming available on 1 January 2020. The HILA will enable approved businesses to sponsor skilled and semi-skilled overseas workers from a select list of occupations to fill jobs where growers can demonstrate there are no local workers able or willing to fill them.

The HILA will become the largest and most comprehensive labour agreement in Australia following the acceptance of 31 occupations for the list. The visa is demand driven and hence is uncapped.

Labour Hire Licensing

Labour hire licensing laws are in different stages of implementation in the three states that had indicated they were going to implement them. A brief summary for each state follows:

South Australia: The South Australian labour hire licensing commenced on November 1. Licensing is overseen by SA Consumer and Business Services.

Queensland: Labour Hire Licensing has been operating in Queensland since 15 June 2018 and contractors or labour hire companies cannot operate unless they have a license. If you use a Labour Hire provider you need to ensure they are licensed and this can be done by searching the register of licensed labour hire providers – SA Consumer and Business Services

Victoria: From November 1, 2019 the Victorian system of labour hire licensing is now in force. Labour hire providers need to have applied for their licence, and host employers need to ensure that any labour hire provider they are using is either licensed, or has applied for a license prior to 1 November, 2019. Licensing is overseen by the Labour Hire Authority 

ACT:  On 19 November, 2019 the ACT government announced its intention to introduce labour licensing laws in order to ensure companies abide by federal workplace laws. Specific details and a commencement date are yet to be confirmed.

Use Labour options wisely

There have never been more options available for growers to access workers. Not every business will need to use visa workers, with family and other Australian workers making up the majority of the agricultural workforce. Regardless of where workers come from there is a clear message – plan your workforce needs well in advance and work out which of the many options are best for your business.

For further information on options for sourcing harvest labour, or to find workers, call the National Harvest Labour Information Service (NHLIS) on 1800 062 332. The NHLIS is operated by MADEC, a not-for-profit agency that can legally provide labour hire services – Australia wide.