Federal Court asked to rule on pickers' wage row

LAWYERS have argued that an Applethorpe farm did not set up a sham arrangement to avoid paying workers more than $10,000 in overtime in what could be a test case for the fruit and vegetable industry.

Eastern Colour farm is accused of setting up two labour hire companies to transfer four farm workers from one company to another after they had each worked 40 hours in a week.

Barrister Warren Friend, for Eastern Colour, said the case should fail because the Fair Work Ombudsman had taken action against Eastern Colour when the fruit packers were employed under separate companies, SB Employments and NB Employments.

He told the Federal Court in Brisbane yesterday that even if the court looked further, the labour hire company structure was common in the industry.

Mr Friend said it was seasonal work and people would elect to work more than 40 hours a week at ordinary pay rates instead of knocking on the door of the next farm down the road to get more hours.

"What occurred is a well-recognised aspect of work in this field of fruit picking," he said.

"This is not a sham arrangement to avoid (paying) overtime.

"If there's a business rationale for it, and the business rationale isn't to avoid award obligations, then it's not a sham."

Justice Berna Collier questioned whether common use in the industry could make the practice legal.

"I draw a hesitant inference that this is a test case," she said, suggesting Fair Work could use a successful outcome in this case for further action.

Barrister Geoffrey Phillips SC, for Fair Work, said the two labour hire companies were merely payroll companies, "nothing but a shell", and could not be defined as businesses.

"We say confidently when you look at all the evidence in this case ... at all times Eastern Colour was the employer," he said.

Mr Phillips said there was a regular turnover of labour hire companies to suit the Baronio family but the workers still wore the Eastern Colour farm T-shirts, signs, stickers and boxes.

Original documents lodged with the court in 2010 alleged three packers and one fork-lift driver were denied $13,719 in overtime payments but the total underpayment could be more than $19,000 because they did not meet minimum hourly rates or pay public holiday rates.

Justice Collier has reserved her decision.

Topics:  wages

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