Australian Government

Farr Work
OMBUDSMAN

GPO Box 9887, ADELAIDE SA 5001

COMPLIANCE NOTICE
(issued under section 716(2) of the Fair Work Act 2009 (Cth))
Date of Issue: 30 May 2016

Name of Employer:

Huy Bros Recruitment Pty Ltd

ACN:

113697484

Employer Contact

Sue Chhen

I Luke Thomas, being a duly appointed Fair Work Inspector, reasonably believe that Huy Bros
Recruitment Pty Ltd (Employer) has contravened Horticulture Award 2010 (Award) in relation
to the employment of:
a.
b.

and
Sana Ullah (Mr Ullah)
(collectively, the Employees).

In forming a reasonable belief I have determined that:

1. The Employer is an employer within the jurisdiction of the Fair Work Act 2009 (Act).
2. The Employer's business activities are within the coverage provisions of the Award. The
Employer operates a labour hire company supplying workers to host employers in the
farming/horticultural industry.
3. The Employer employed the Employees between 18 November 2013 and 30 June 2015
(the Employment Period) as follows:
a.
b. Mr Ullah from 27 June 2014 to 30 June 2015.

and.

4. During the Employment Period, the terms and conditions of employment of the Employees
include minimum wages, loadings and penalty rates were governed by the FW Act and the
Award.
5. For the purposes of the transitional provisions of Schedule A to the Award, the applicable
transitional minimum wage instrument was the Australian Pay and Classification Scale
derived from the General Storeworkers, Packers, Wholesale Sellers and Distributors Award
(AN150057).

www.fairwork.gov.au

Fair Work Infoline 13 13 94

ABN: 43 884 188 232

6. During the Employment Period, the Employees were employed on a casual basis and
classified as a Level 1 in accordance with schedule B of the Award. The Employees' duties
included mainly grading, packing, stacking and weighing carrots at Zerella Fresh at Johns
Road, Virginia in South Australia.
7. During Employment Period, the Employer paid
a.
b.
8.

a flat rate of:

gross per hour for all hours worked from

, and
gross per hour for all hours worked from

During the Employment Period, the Employer paid Mr Ullah a flat rate of:
a. $17.00 gross per hour for all hours worked from 27 June 2014 to 30 June 2015.

Details of the contravention(s)

The details of the contraventions are as follows:
Base rate of pay for ordinary hours
9.

During the Employment Period, pursuant to clause A.3.5 of Schedule A and clause 14.1
of the Award, the Employer was required to pay the Employees for all ordinary hours
worked Monday to Sunday (excluding public holidays) no less than the following
minimum hourly rates:
Period

Minimum hourly rate

18 November 2013 to 13 July 2014

$16.66

14 July 2014 to 30 June 2015

$16.87

10. During the Employment Period

a. worked the following ordinary hours and was entitled to be paid:

i.
;
ii.

b. was paid the following amounts with respect to ordinary hours worked:
i.
ii.

and

c. was therefore underpaid the following amount with respect to ordinary hours
worked:
i.
amount for the period
.
11. The Employer contravened clause A.3.5 of Schedule A of the Award by failing to
during the Employment Period.

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Casual loading
12. Pursuant to clause 10.4 of the Award, the Employer was required to pay the Employees
a casual loading of 25% for all ordinary hours worked Monday to Sunday.
13. During the Employment Period, the casual loading payable to the Employees was as
follows:
Period

Casual loading

18 November 2013 to 13 July 2014

$4.16

14 July 2014 to 30 June 2015

$4.22

14. During the Employment Period

a. worked the following ordinary hours and was entitled to be paid the following
amounts in respect of the casual loading:
i.
;
ii.
and
b. was paid the following amounts with respect to the casual loading:
i.
ii.

;
and

c. was therefore underpaid the following amounts with respect to the casual loading:
i.
ii.
15. During the Employment Period Mr Ullah:
a. worked the following ordinary hours and was entitled to be paid the following
amounts in respect of the casual loading:
121.79 hours and $506.65 amount for the period 27 June 2014 to 13 July
2014;
ii. 2,751.87 hours and $11,612.89 amount for the period 14 July 2014 to 30
June 2015; and
i.

b. was paid the following amounts with respect to the casual loading:
i. $41.58 amount for the period 27 June 2014 to 13 July 2014;
ii. $871.68 amount for the period 14 July 2014 to 30 June 2015; and
c. was therefore underpaid the following amounts with respect to the casual loading:
i. $465.07 amount for the period 27 June 2014 to 13 July 2014;
ii. $10,741.21 amount for the period 14 July 2014 to 30 June 2015.
16. The Employer contravened clause 10.4 of the Award by failing to pay the Employees the
applicable casual loading for ordinary hours worked on a Monday to Sunday during the
Employment Period.

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Penalty rate public holiday

17. Pursuant to clause A.7.3 of Schedule A and clause 28.3 of the Award, the Employer was
required to pay the Employees the public holiday rate for all ordinary hours worked on a
public holiday as follows:
Period

Public holiday rate transitional

percentage of base rate

18 November 2013 to 13 July 2014

180% of the base rate

14 July 2014 to 30 June 2015

200% of the base rate

18. During the Employment Period the applicable public holiday rate was as follows:
Period

Public holiday rate

18 November 2013 to 13 July 2014

$29.99

14 July 2014 to 30 June 2015

$33.74

19. During the Employment Period

a. worked the following ordinary hours on a public holiday and was entitled to be paid
the following amounts:
i.
;
ii.
; and
b. was paid the following amounts with respect to hours worked on a public holiday:
i.
;
ii.
and
c. was therefore underpaid the following amounts with respect to hours worked on a
public holiday:
i.
;
ii.
.
20. During the Employment Period Mr Ullah:
a. worked the following ordinary hours on a public holiday and was entitled to be paid
the following amounts:
i. 57.37 hours and $1,935.66 amount for the period 14 July 2014 to 30 June
2015; and
b. was paid the following amounts with respect to hours worked on a public holiday:
i. $1,123.35 amount for the period 14 July 2014 to 30 June 2015; and
c. was therefore underpaid the following amounts with respect to hours worked on a
public holiday:
i. $812.31 amount for the period 14 July 2014 to 30 June 2015

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21. The Employer has contravened clause A.7.3 of Schedule A of the Award by failing to
pay the Employees the public holiday rate for work performed on a public holiday.
Required action under this Notice
22.1n accordance with section 716(2) of the Act, the Employer is now required by 1 July
2016 to the Employees the following outstanding amounts in relation to the
underpayment contraventions identified above:
a. To
total outstanding amount of
b. To Mr Ullah total outstanding amount of $12,018.59.

and

23. In accordance with subsection 716(2) of the FW Act, the Employer is also required to
produce reasonable evidence to the FWO confirming the amount has been paid (gross
and net) td. the Employees as specified above, and the date of payment, by 1 July 2016.
Evidence of compliance with this Notice is required to be produced to me at:

Level 2, 148 Frome Street Adelaide SA 5000;

GPO Box 9887, Adelaide SA 5001; or
luke.thomasfwo.qov.au

Employer rights and obligations under this Compliance Notice

24. Failure to comply with this Compliance Notice may contravene a civil remedy provision
of the Act.
25. If the Employer does not comply with this Compliance Notice, the Fair Work
Ombudsman may commence legal action against the Employer and/or individuals
involved in the contraventions to recover any outstanding monies and to seek civil
penalties. Civil penalties may also be sought for noncompliance with this Compliance
Notice.
26. Complying with the Notice is not an admission that the Employer contravened, or was
found to have contravened, the Award.
27. The Employer may apply to the Federal Court, Federal Circuit Court or an eligible State
or Territory Court for a review of this Compliance Notice on either or both of the following

grounds:

(a) the Employer did not commit the contraventions set out in this Compliance Notice;
(b) this Compliance Notice does not comply with sections 716(2) or 716(3) of the Act.
Yours sincerely

uke Thomas
Fair Work Inspector
Fair Work Ombudsman

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