Australia’s most exploitative industry exposed and humiliated by Fair Work Commission

For decades, one of Australia’s worst industries for exploitation, abuse and harassment of workers has avoided the public opprobrium it richly deserves, skating by on its rural setting, its targeting of migrants and visitors, the unthinking support of journalists and the unconditional support of the National Party. It was even able to get Labor to do its bidding.

Now the horticulture industry has been belted by the Fair Work Commission (FWC), which has dissected its exploitation and its efforts to cover it up and sell a story of pastoral idylls and happy migrants in bucolic settings

It’s what happens when independent decisionmakers consider and assess actual evidence and ignore polling, politics and donations in working out what is best for the public interest.

Wednesday’s Fair Work Commission decision granting an Australian Workers Union (AWU) application to vary the horticulture award means an end to the current award exemption from a minimum hourly wage if the fruit picker agrees to a piece work rate. Under the current award, theoretically a fruit picker can either work for a minimum wage or take a piece work rate agreed by employers and unions that will mean if they work hard enough they can earn 15% more than the minimum wage, or even more for high-productivity pickers.

The FWC found that the piece work system instead is a recipe for ripping off workers, and the victims are usually foreign temporary workers — working holidaymakers, temporary visa holders, undocumented migrants — whose visa restrictions and language skills leave them especially vulnerable to exploitation by greedy farmers.

The way that the industry association, the Australian Fresh Produce Association (AFPA), and the national farming lobby, the National Farmers’ Federation (NFF), tried to bullshit the FWC is a story in itself.

The AWU and other unions assembled a mountain of evidence that the piece work rate — which Julia Gillard as industrial relations minister in 2009 retained — is used to push worker wages below minimum wage. Adelaide legal academic Dr Joanna Howe, who has long experience in documenting the horticulture sector and who had authored a report commissioned by the industry itself into the horticulture workforce in 2019, prepared a statement. Professor Elsa Underhill provided detailed analysis of the composition of the workforce and piece rate payments accumulated over several years.

AFPA tried to discredit both experts. Its expert claimed Howe’s work was “a collection of anecdotes and stories”, that Howe — who was “unimpressive” and biased (despite being commissioned by employers to produce a report) — had hidden evidence by not including all the very large appendices from her own, earlier, publicly available report in her current statement. They also tried to misrepresent her qualitative research as purporting to be quantitative, and told the commission to ignore Underhill’s research because it was only focused on working holidaymakers, rather than the entire industry.

The FWC dismissed AFPA’s efforts to undermine the evidence. What it did reject was a survey offered by the National Farmers’ Federation, which was explicitly circulated as part of an NFF campaign to oppose the case. One farmer respondent even wrote form letters for migrant fruit pickers to sign to add to their response to the NFF questionnaire.

The crux of the AFPA/NFF case is that piece work is great — it enables productive workers to earn well above minimum wage, and piece work has a long history in the relevant award. The FWC rejected the argument. The evidence showed widespread payment well below the minimum wage. And the history of the award, and the current wording, was about a piece work rate agreed between employers and unions.

The unions produced a long list of workers and union officials who talked about how below-minimum wages were paid and no effort was ever made to negotiate a rate with unions — employees were offered a rate devised by the farmer on a take-it-or-leave-it basis, and employers simply ignored the requirement to negotiate a rate with unions. “Piece rates are dictated by the grower,” the FWC says, “and are not the subject of negotiation between the employer (which may be the grower or, more commonly, a labour hire provider).”

What the industry portrays as a risk-reward balance for workers is in fact all risk and little reward for many workers — especially those with a poor grasp of English, or unaware of their basic rights. “A substantial proportion of the seasonal harvesting workforce are engaged on piece rates and more than half of the seasonal harvesting workforce are temporary migrant workers,” the FWC found. “These characteristics render the seasonal harvesting workforce vulnerable to exploitation.”

From now on, there’ll still be reward for productive workers — the piece rate system remains in place. But workers can’t be paid less than the minimum wage. A key rort exploited by one of Australia’s most sordid industries has been closed — unless the industry can successfully appeal the decision. To do so, it might have to improve its grasp of basic facts.