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Orchardist defends actions in court during Fair Work case

AN Applethorpe farm's advisor has defended establishing two labour hire companies to avoid paying workers more than $10,000 in overtime.

Vince Catanzaro, a Stanthorpe-based solicitor and tax agent, told the Federal Court in Brisbane that people simply were "not offered overtime" in the fruit and vegetable industry.

He said it was seasonal work and people would "voluntarily" elect to work more than 40 hours a week at the ordinary rate of pay.

Mr Catanzaro said the move avoided "unnecessary movement of workers from one property to another" during the busy season.

The Fair Work Ombudsman disagrees, arguing the Eastern Colours farm set up an illegal employment structure to transfer four farm workers from one company to another after they had each worked 40 hours in a week.

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.

Former employee Adela Caruso, from Stanthorpe, told the court she and her father had both worked at the farm, explaining how they each had to fill out two employment forms for two companies to she could work as many hours as she could.

When questioned, she said she did not know anything about overtime and was not informed that anyone who worked over 40 hours was entitled to claim a higher pay rate.

Barrister Geoffrey Phillips, acting for the Fair Work Ombudsman, said the Fruit and Vegetable Growers award applicable to 2005 to 2007 allegation period "entitled" workers to overtime at a higher pay rate after they had worked 40 hours.

Mr Catanzaro accepted that was true but said the current workplace agreement allowed for people to continue on the same pay rate after 38 hours which mirrored what they were doing back then.

He agreed setting up the labour hire companies was a "cost-effective" way to employ people, instead of paying a surcharge to external entities to hire staff.

"There are many commercial reasons you would structure your business that way," he said.

Mr Catanzaro said it was a "simple process" where people would work 40 hours for one company and then move over to work for a second company.

He said otherwise they would be sent away to work on another farm and a new crop of workers would have to come in to finish the job.

"This is not an unusual arrangement in the industry," he said.

"In that industry there is no overtime paid.

"In my experience, they would never receive an offer of overtime, it just doesn't exist, even though the award provides for it."

Mr Catanzaro agreed with the suggestion there were "advantages in keeping the one group in the one place for as many hours as they were needed in any given week during the season".

"There were advantages that justified the whole concept ... the concept of voluntary additional hours," he said.

John Baronio told the court he began the farm in 1988, but after leaving school aged 13 and a half and working through until age 66, he was moving towards retirement.

Mr Baronio disagreed he was winding down the farm, instead saying he had given more control to his nephews.

"I've had a heart attack and I've nearly had enough," he said.

Mr Baronio said he left the labour duties to his wife, Mr Catanzaro and other professional advisors.

He said he understood the two-company payment system worked "provided they were happy enough to voluntarily do additional hours at the same rate of pay".

The hearing continues.

Topics:  fair work australia farming federal court orchard wages workers



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