Unpaid Work in Horticulture: The Hidden Compliance Risk

01

When Does Working Time Begin on a Farm?

One of the most common compliance failures in horticulture is failing to pay workers from the moment working time actually begins. The law is clear: work starts when employer control starts. All time spent under the direction and control of the employer is working time — and must be paid.

Employer Control = Working Time

If workers are required to be at a specific location at a specific time, and are under your direction from that point, working time has begun. It does not start when they reach the picking row.

Arriving at the Facility

When workers are required to arrive at a central facility — whether it is a shed, a muster point, or a car park — their working time begins from that arrival, not from when they start picking.

Pre-Work Activities Are Working Time

Storing personal items, collecting equipment, walking to the work area, attending toolbox talks or safety briefings, and waiting for transport to the block — all of this is working time that must be paid.

You Cannot Log Workers in at the Row

If workers attend a facility first, you cannot log them in only when they reach the picking row. Every minute from the point of employer control must be recorded and paid.

02

Packing Shed Work Must Be Paid at Hourly Rate

Pieceworkers who perform work in the packing shed are not performing their piecework task. Under the Horticulture Award, this additional work must be paid at the applicable hourly rate — not absorbed into piece rate earnings.

Clause 15.2(e) of the Horticulture Award

If a pieceworker does any work in addition to the piecework task, they must be paid at least the minimum hourly rate for that additional work. This is a separate payment obligation.

Packing Shed Rework Is Not the Piecework Task

The piecework task is typically picking or harvesting. Packing shed work — including sorting, grading, and reworking boxes — is additional work and must be treated as such.

Every Minute Must Be Paid

Every minute a pieceworker spends in the packing shed must be recorded and paid at the hourly rate. There is no exception, no offset, and no averaging with piece rate earnings.

03

Directing Workers to “Fix” Boxes Without Pay Is Unlawful

Directing workers to re-sort, repack, or fix poor quality boxes without payment is unlawful on two separate grounds. This is a practice that carries significant legal risk and must be stopped immediately wherever it occurs.

Ground 1: Unpaid Work — Section 323 of the Fair Work Act

Section 323 requires that an employer must pay an employee in full for all work performed. Directing a worker to fix boxes without payment is a direct breach of this obligation. It is unpaid work, plain and simple.

Ground 2: Non-Piecework Task — Clause 15.2(e)

Reworking boxes in the packing shed is not the piecework task. Under Clause 15.2(e) of the Horticulture Award, any work performed in addition to the piecework task must be paid at the minimum hourly rate. Failing to do so is a separate breach.

Quality Issues Must Be Managed Through Training

Quality problems should be addressed through proper training, supervision, and feedback — not by requiring workers to perform unpaid labour. Using unpaid rework as a quality control mechanism is not a lawful practice.

04

The Financial Impact

Unpaid work is not a minor administrative oversight. The financial exposure from even small amounts of unpaid time adds up rapidly across a workforce, and the penalties for non-compliance make it far more expensive than simply paying workers correctly.

$31.19 Per Worker Per Hour

One hour of unpaid packing shed work costs $31.19 per worker at the minimum hourly rate. This is the base underpayment before any penalties, interest, or superannuation shortfalls are calculated.

$62,380 in Unpaid Wages — A Realistic Scenario

2 hours of unpaid packing shed work per day, across 20 working days, for 50 workers = $62,380 in unpaid wages. This is just one month of one type of unpaid work on a single site.

Penalties for Failure to Keep Records

Under section 535 of the Fair Work Act, employers must keep accurate records of all hours worked. Failing to record unpaid working time is a separate contravention that carries additional penalties on top of the underpayment itself.

05

Site Induction & Training Time Must Be Paid

Under both the Horticulture Award and occupational health and safety legislation, all induction and training time is working time. Workers must be paid for every minute spent in site inductions, safety training, and any other required training activities.

All Induction Time Is Working Time

Under both the Award and the OHS Act, any time a worker spends attending a site induction or training session directed by the employer is working time. It does not matter whether the worker performs productive work during that time.

Minimum Engagement: 2 Hours Per Occasion

Clause 11.3 of the Horticulture Award requires a minimum engagement of 2 hours per occasion for casual employees. Even if the induction takes 30 minutes, you must pay for 2 hours.

Applies to All Workers

This obligation applies regardless of the worker's visa status, employment type, or whether they are engaged through a labour hire company. Every worker attending an induction must be paid.

06

Intentional Wage Theft Is Now a Criminal Offence

From 1 January 2025, intentional wage theft is a criminal offence under Australian law. The stakes have never been higher for employers who fail to pay workers for all time worked.

Up to 10 Years Imprisonment

Intentional underpayment of wages now carries a maximum penalty of up to 10 years imprisonment for individuals. This applies to any deliberate failure to pay workers for work performed, including unpaid working time.

Significant Financial Penalties

In addition to imprisonment, substantial financial penalties apply to both individuals and corporations. These penalties are in addition to any back-payment orders and interest on underpaid wages.

Ignorance Is Not a Defence

Employers cannot claim they did not know unpaid pre-start activities, packing shed time, or induction time needed to be paid. The law is well established, and the obligations are clear. Now is the time to audit your practices and fix any issues.

Concerned About Unpaid Work on Your Site?

Unpaid working time is one of the most common — and most expensive — compliance failures in horticulture. We can help you audit your current practices, identify risks, and implement systems that ensure every minute of working time is recorded and paid correctly.

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