Court hearing over pickers alleged $646K underpayment. Is Uber next?

Important Developing Story

A story carrying strong resemblance to RSDU’s initiated FWO investigation into Uber is now being heard in the Federal court. This is a very interesting case because just like in Uber’s case it examines the rates contracted workers are able to earn per hour based on work on demand, or in that case ‘pay per-piece/kg Mushrooms picked’ as opposed to being paid the award hourly rates for time spent on the job as required by law.

If successful, this case has the potential to affect the entire on-demand gig economy and force companies to stick to minimum award level, hourly pay rates and stop circumventing Australia’s known stringent fair work laws, a practice that has the potential to take us all back more than 100 years to the days of borderline slavery with very little take home pay.

The RSDU can only hope to see the same action taken against Uber by the FWO in due course. Current FWO investigation is still ongoing. We will be posting an update as soon as we have more news.

Max B. , Head of RideShare Drivers United – 16/10/2017


Federal Court hears Marland Mushrooms Qld Pty Ltd case, Mushroom pickers testify over alleged $646k underpayment.

In this case, workers were paid $6.76-$11 per hour based on the rate they were able to pick mushrooms and not the hourly award rates as required by law.

The workers were employed through contractor HRS Country on a piece-rate basis. HRS Country owner Tao Hu admitted during a trial in the Federal Court in Brisbane she knew workers were being underpaid.

One woman was paid $6.76 an hour and hundreds of her colleagues earned less than $11 an hour while employed to pick mushrooms at one of Queensland’s biggest edible fungi growers.

The companies involved tried to cover up the underpayments by sending mysterious mushroom picking data and using excuses like “we don’t speak good English”, the Federal Court heard today.

Brisbane Market supplier Troy Marland and his company, Marland Mushrooms Qld Pty Ltd, are on trial in Brisbane for allegedly underpaying 406 workers $646,000.

The Fair Work Ombudsman says the underpayments occurred over seven months in 2014.

NFF  (National Farmers’ Federation) chief executive Tony Mahar said the NFF’s will intervene in this case to ensure “proper construction is given to the piecework provisions in the Horticulture Award”.

Mr Mahar said piecework rates were a fair mechanism for rewarding hard work and any move to abolish them would have wide implications.

“The Marland Mushrooms (case) has the potential to set a precedent for how the award is applied across the horticulture sector,” he said.

Mr Mahar said under the award, piecework rates were fixed by agreement between employer and employee.

And this rate should enable the average competent worker to earn at least 15 per cent more than the minimum hourly rate.

“The Fair Work Ombudsman’s approach to the award means the worker would receive at least 15 per cent more than the award rate, regardless of how fast or hard they worked,” Mr Mahar said.

The FWO is alleging 406 employees of HRS Country, who worked on the Marland Mushrooms farm, were short-changed $646,711 for an eight-month period in 2014.

It also suggests piece rates were set so low during the period the FWO investigated that pickers were able to earn 15 per cent more than the award rate on only about 3 per cent of days they worked.

Mr Marland contracted Tao Hu and her labour hire firm, HRS Country Pty Ltd, to provide pickers at his Stapylton business from January 2014 to August 2014.

Representing the Fair Work Ombudsman in the Federal Court today, barrister Justin Bourke said Ms Hu admitted underpaying her employees while they were contracted to pick Mr Marland’s product.

A TAIWANESE student has testified it was difficult to consistently pick high volumes of mushrooms at a plant accused of underpaying more than 400 workers.

Jia-Sing Chen, who called herself Diana while in Australia, was one of several workers who made complaints about Marland Mushrooms to the Fair Work Ombudsman.

“If you were working in a room where the harvest was really good, you could do about 20 kilos per hour. If you are working in a room where it’s not so good, you could only get about four kilograms per hour,” she said through an interpreter.

But under questioning from Marland Mushrooms’ defence barrister Robert Bain, Ms Chen agreed there were times when there were not enough pickers to harvest the amount of mushrooms being produced.

Labour hire provider HRS Country owner Tao Hu has admitted during the trial in Federal Court she knew workers were being underpaid but Marland Mushrooms owner Troy Marland maintains he was unaware.

The National Farmers’ Federation is an intervenor on the case, saying the trial could set a precedent about farm-worker awards because it will test whether piece rates paid in horticulture are successful.

On Monday, the court heard two Fair Work inspectors met with Mr Marland and Mr Hu in February 2014 to explain the mushroom pickers’ wages of 60-80 cents a kilogram picked was well short of the 91 cents a kilogram they should have been earning.

Today barrister Justin Bourke presented five witnesses as part of the Fair Work Ombudsman’s case, all of whom worked at the Stapylton farm, south of Brisbane.

During an eight-month Fair Work Ombudsman audit in 2014, the mean average of mushrooms picked per hour was 14kg, which was short of the 29.5kg needed reach the appropriate award.

Ms Stevula said some workers were capable of picking more than others.

“Some days you have good days, and other days you have bad days,” she said.

Ms Stevula was also questioned on the amount of time it took for workers to clean up their equipment at the end of a shift.

During the trial on Tuesday, former Marland Mushrooms picker Jing-Sin Jian, who called herself Fei while in Australia, explained through an interpreter this job could take half an hour as there were limited amounts of taps, and there was often a queue.

In an unprecedented step, the Ombudsman will also allege agreements between an employer and employees to pay piece rates did not take effect because the pickers to whom they applied were not able to earn a sufficient wage.

The trial has been adjourned until October 25.


Mushroom pickers testify over alleged $646k underpayment
Marland Mushrooms case: Big nights slow down pickers, court told
Federal Court hears Marland Mushrooms Qld Pty Ltd case