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Seasonal workers – home grown and those that are just visiting – have a positive effect on our economy and help ensure that regional employers – especially growers - have access to workers when they need them. But the nature of the work (and the travelling backpacker) also means that they rarely stay in one place for too long. This constant staff turnover can often leave some smaller employers bogged down in paperwork as they administer workers’ checks, payroll, superannuation and all the other obligations that are part and parcel of hiring an employee.

To avoid this situation, more and more growers are turning to contractors and labour hire firms to procure workers. These firms charge employers a premium for providing access to labour and in return take responsibility for the payment and administration of all the associated employment costs.

Sounds like a fair trade except that sometimes hiring a contractor does not free you from your responsibilities and not all labour hire firms operate in a legal or compliant manner. And when the chips are down and the authorities come a calling, it is often the grower who is left to pick up the pieces and often the costs.

If you are considering using contractors or a labour hire firm to procure seasonal workers, here are some of the things you need to be aware of.

Contractors

Many employers think that if they hire an independent contractor to carry out some work, they don’t have to worry about the various laws that apply to employment – you simply pay the bill at the end of the job and you both go your separate way.

In some cases this is true but this is not always the case. Even though a person might say they are a contractor, the law may still class them as your employee and all of your obligations to them (superannuation, tax, workers compensation, annual leave etc) will still apply.

Although there are a number of factors which can help you determine the difference between an employee and an independent contractor, there is unfortunately no single indicator that can determine if a person is one or the other. In the event of a dispute, courts will always look at the totality of the relationship between the two parties before making a decision.

Fair Work Australia (www.fwa.gov.au) and the National Farmers Federation (www.nff.org.au) have both put out guidelines to help you make a determination but if you’re having trouble, it’s best to give Fair Work Australia or your Employer Association a call.

Labour hire firms

Labour hire firms are a great way for employers, especially growers, to access labour when they need it most and often without much notice. They also allow the grower to focus on the job at hand because the labour firm is responsible for the payment and administration of all employment costs.

While the vast majority of these firms provide an excellent service to the community, there are unfortunately a small number that are less than professional. These questionable firms may underpay their workers, may use illegal workers and may not pay workers any of their entitlements, including superannuation.

If things go wrong and Fair Work Australia comes to investigate, growers themselves may be left to foot the bill towards employees’ entitlements.

There are ways you can protect yourself

Insist the labour hire firm sign a contract – although there is no legal obligation for employers and labour firms to enter into a formal contract, if you’re using a labour firm for the first time, it’s a good idea to insist they sign one.

The contract will spell out each party’s obligations and can protect the employers if the firm doesn’t pay their workers correctly.

If the firm you’re dealing with refuses to sign a contract it doesn’t necessarily mean they are operating outside the law but it should raise some red flags. At the very least you should ask them why they don’t want to enter into a formal agreement and be satisfied with their answer. If you’re not, walk away.

Similarly if, you’re unhappy with the contract that’s been provided to you by a labour hire firm, it’s important that you do not commence work with the firm. Often a commencement of work will be interpreted as an acceptance of a contract, even though there is nothing in writing.

If the firm offers to provide you with labour at a price that’s too good to be true, it probably is – Let’s say minimum wage is $20 an hour. If a labour firm offers you workers for $10 an hour it’s a pretty good indication that something is not quite right.

That’s because there’s no way your $10 an hour is going to cover all of the legitimate employment costs for the workers the firm provides. And you can be guaranteed that the firm is not going to cover the extra costs from their own pockets. Instead it’s likely that the firm does not pay their workers correctly or may not pay workers their superannuation or leave entitlements for the work they do.

You may also be liable for hefty fines from the Department of Immigration and Citizenship if they visit your farm and find illegal workers.

Make sure the superannuation entitlements are paid on behalf of the labour hire firm and yourself – To avoid any possible penalties down the track, you should insist that the labour hire firm notify the relevant superannuation fund that the contributions being made are on your behalf as well as the labour hire firm. This doesn’t cost the firm any money and it will protect you from any unnecessary worry.