Harvesting Change: A year in review of key employment law changes in the agriculture sector

On 1 January 2025, new wage theft laws commenced under the Fair Work Act. The laws make it a criminal offence for employers to intentionally engage in conduct that results in the underpayment of wages or entitlements to, or for the benefit of, their employees under the Fair Work Act or an industrial instrument.

This is not limited to minimum rates of pay, but extends to other entitlements, including overtime, penalty rates, allowances and withholding leave entitlements. A recent Federal Court decision in high profile proceedings by the FWO against Woolworths and Coles (see our recent articles on this decision and its implications here and here) highlights the complexity in this area, including the potential inability to rely on ‘set-off’ rights between pay periods.

Penalties for non-compliance with these laws are serious and:

• companies and other bodies corporate can face fines of up to A$8.25 million or the greater of 3 times the underpayment amount; and
• individuals may face up to 10 years imprisonment or fines of up to A$1.65 million or the greater of 3 times the underpayment amount.

Other individuals and entities can also be prosecuted under the ‘related offence’ provisions in the Fair Work Act, including if they incited, aided, abetted, counselled or procured the commission of the offence.

While the focus of the wage theft laws is on ‘intentional’ underpayments, there is scope for the requisite intention to be established in circumstances other than obvious wrongdoing. In particular, the Fair Work Ombudsman (FWO) has indicated that laws could apply in circumstances where non-compliance is detected but not remediated with appropriate urgency. Additionally, in establishing the fault element, evidence that the organisation lacks a ‘culture of compliance’ can be relevant.

Importantly, the criminal wage theft laws also continue to operate alongside the existing civil penalty regime for underpayments under the Fair Work Act. We expect this to continue to be an active forum used by the FWO given the lower standard of proof that applies.

The agriculture sector has been, and continues to be, recognised as a key priority area for the FWO due to various high-risk characteristics that define the sector, including seasonal fluctuations, large casual workforces, remote work locations, complex industrial instrument arrangements, and low-skilled and vulnerable workers.

In addition, the FWO released the FWO’s Horticulture Compliance Report in June 2025 summarising it findings and compliance next steps in connection with a 3-year campaign aimed at improving compliance in the horticulture sector.

Over the course of the campaign, the FWO investigated growers and labour hire providers in 15 key regional hot spots. In 360 site visits, the FWO identified high-rates of non-compliance with workplace laws and commenced over 500 investigations into compliance issues under the Fair Work Act.

Other key findings from the report included:

• labour hire providers were responsible for 68% of non-compliance.
• poor record keeping and incorrect pay slips were a major concern;
• piecework requirements in the Fair Work Act were not met, including record keeping requirements and payment of guaranteed minimum hourly rate.

Relevantly from a wage theft perspective, the FWO did not consider that non-compliances identified by growers was deliberate. Instead, the FWO found that growers had a good understanding of their obligations, but did not have appropriate arrangements in place (particularly from a governance perspective) which were consistent with these obligations and to ensure they were met. The lack of good governance mechanisms and controls in place were most evident in growers engagement of labour hire providers and the outsourcing of labour – including the failure to engage licensed labour hire providers only and the implementation of systems that provide visibility of labour hire providers’ compliance with state and/or federal workplace minimum standards.

Following the report, the FWO has announced a campaign of inspections targeted at labour hire providers in the horticulture sector together with a continued focus on joint activities with other regulators including the ATO and state labour hire licensing regulators to ensure any non-compliances can be enforced across different laws in each regulator’s jurisdiction.

This, along with the findings of the campaign, means there will continue to be a high-level of scrutiny and regulatory focus on wage and related compliance in the agricultural sector including the prospect of joint site inspections with multiple regulators.

Given the new wage theft laws and the FWO’s spotlight on the agricultural industry, organisations should be prioritising a review of payroll practices and wage governance systems.

The FWO has published its Payroll Remediation Program Guide in April 2025 (accessible here) to assist organisations in doing so.

The guide is not prescriptive but provides helpful guidance as to how organisations should approach payroll remediations. The FWO acknowledges there is no one-size-fits-all approach to payroll remediation programs. Programs require a bespoke, employee-centred assessment that is specific to the size, composition and circumstances of the organisation.

The FWO has also published a raft of other guidance over the course of the past year:

• FWO Compliance and Enforcement Policy: The Policy highlights the FWO’s three main responses to allegations or instances of non-compliance – encouraging voluntary compliance, guiding compliance where required and enforcing the law when it is in the public interest.
• Voluntary Small Business Compliance Code and Guide to paying employees correctly: While focused on small business employers, the Code and Guide provide helpful insights into the regulator’s expectations as to steps which should be taken to demonstrate compliance with minimum pay obligations.

We have previously unpacked what Boards and senior management should be doing to proactively manage wage compliance risk as part of their risk governance frameworks in our articles here and here.

The past year has seen an increase in applications for regulated labour hire arrangement (RLHA) orders which were introduced by the Albanese Government as part of the Closing Loopholes legislation.

RLHA orders require workers employed by third party providers of labour to be paid no less than the rate of pay under an enterprise agreement that would apply to them if they were employed directly by the host employer. Typically, the increased cost base to the labour hire provider is then passed on to the host employer and has the potential to undermine the benefits of the typical labour hire arrangements.

At the time of this article, RLHA orders in the food and agricultural sector have been focused on workers in the meat industry, including meat processors and poultry processors. Most significantly, the Australasian Meat Industry Employees Union (AMIEU) has successfully applied for over a dozen RLHA orders covering meat processing workers across employers and worksites.

Although the AMIEU has limited coverage in the broader agriculture sector, their recent success in obtaining RLHA orders has the potential to encourage unions with wider coverage (such as the Australian Workers Union) to pursue RLHA orders for agriculture workers, particularly given the significant reliance on labour hire workers in the sector.

In the meantime, businesses should bear the new RLHA regime (including the anti-avoidance provisions) in mind when entering into labour hire arrangements as well as considering these changes in relation to the key terms and conditions which apply to their workforce (i.e., enterprise agreement negotiations). 

The Pacific Australia Labour Mobility (PALM) scheme is currently under review following a commitment by the Albanese Government to improve the administration of the scheme. The scheme allows Australian businesses to hire workers from Pacific Island countries and Timor-Leste when sufficient local workers aren’t available.

The review will look at the current red tape underpinning the PALM scheme to assess whether it meets its stated government objectives and priorities, including ensuring the scheme protects workers against exploitation and ensuring there is a reliable and productive workforce available to meet the needs of Australian employers.  

The Department of Employment and Workplace Relations has recently finalised the public consultation phase, where stakeholders were invited to consult on specific aspects of the PALM scheme, including accommodation standards, pay parity, welfare and wellbeing support and transport standards.

The review may result in greater access to labour by organisations in the sector via the PALM scheme. 

In addition to physical risks, the agriculture sector is particularly vulnerable to a number of common psychosocial risks, including low job control, remote or isolated work; job demands, such as during harvest time; long and irregular hours; remote and isolated working locations; sexual harassment, job insecurity and poor physical environments.

Additionally, the diverse composition of agriculture workforces – including workers from culturally and linguistically diverse backgrounds, young workers, and casual / fixed-term employees - heightens the risk of psychosocial hazards.

To mitigate these risks, employers must be vigilant in proactively identifying and responding to psychosocial hazards by implementing suitable controls and measures. SafeWork Australia has indicated that measures in the agricultural industry to control psychosocial risks include having regular breaks, staying in regular contact with workers in remote or isolated locations, regularly consulting with workers to keep them informed of updates to work arrangements, giving workers adequate equipment and sufficient training.  

The Work Health and Safety (Managing Psychosocial Hazards at Work) Code of Practice provides helpful guidance for duty holders, along with various other resources published by SafeWork Australia. We unpack psychosocial hazards in more detail in an earlier article (accessible here and here).

Following WorkSafe WA’s Agricultural Industry Inquiry in 2023 – which was focused on understanding the specific matters which affected safety performance and increased incidents resulting in fatalities in the agricultural industry in WA - WorkSafe WA has published the ‘First steps to farm safety: Guide’.

The guide is aimed at providing farmers with foundational knowledge for establishing good safety practices but acknowledges that it does not address other potentially significant hazards such as psychological risks.

While there has been no indication from other states that similar inquiries will take place in the agriculture industry, the guidance published by WorkSafe WA provides a useful reference point for organisations in the agriculture industry.