After a decade of Labor “modernisation,” the federal wage system now comes with a hidden tripwire buried deep in the fine print — and it’s farmers who keep stepping on it
Under the Pastoral Award 2020, a harvester driver on a base machine operators’ rate of $32.90 an hour can suddenly cost you $48.50 once the 152-hour overtime cliff kicks in. That’s not rational economics; it’s central planning with double penalty rates.
The story of how we got here goes back to the Rudd era — the great sell of “modern nation-building,” where everyone from Sydney baristas to wheatbelt chaser-bin drivers would finally work under one tidy industrial banner. It was supposed to simplify life. It did the opposite. What we have now is a federal industrial system designed for CBD office towers being forcibly applied to broadacre farming. The result is absurd, costly, and completely divorced from the reality of seasonal work. And the more you run the numbers, the clearer it becomes that Western Australia was the only state smart enough not to buy the snake oil.
The old common-sense rule that overtime started when a worker did more than ten hours in a day is long gone as far as Canberra is concerned. Rudd scrapped it and replaced it with a theoretical averaging model that might look elegant inside a bureaucracy but collapses the moment it hits a wheatbelt paddock. The Federal Award is explicit. Clause 34.1 sets 38 ordinary hours a week averaged over a period of up to four weeks. Clause 35.1 then commands that all time worked in excess of the ordinary hours in clause 34 must be regarded as overtime. In English: you get 152 ordinary hours in any rolling four-week block. Once the cumulative total passes 152, it doesn’t matter whether it’s Monday morning or Saturday night — everything after that is overtime.
The 152-hour rule didn’t descend from Mount Canberra in one go; it crept in through decades of industrial tinkering. The 38-hour week was carved into awards in the early 1980s after the national “38-hour week test case,” when unions pushed to shrink the standard 40-hour week. That became the new definition of “ordinary hours.” Fast-forward to 2009 and Kevin Rudd’s Fair Work Act. As part of the award-modernisation process, hundreds of old federal and state awards were rolled into the new “modern awards,” including the Pastoral Award 2010. The lawyers needed a way to express 38 hours over a month, so they multiplied it by four — 152 hours — and locked it in as a rolling average. What began as a factory-floor rostering formula became, in Fair Work’s hands, a mathematical cliff that now governs every farm worker in the country (except those still under WA’s saner state system).
During harvest that line is crossed early on the Monday of week three of the government’s rolling four-week calculation. The worker has only just started the new week, but in Federal Fair Work land the “previous” fortnight follows them around like a tax audit. Every single hour for the rest of the cycle becomes penalty time. And not gentle penalty time. Saturday within the ordinary bracket is 150 per cent. Sunday is 200 per cent. Once you’re over the cap, Monday to Saturday jumps to 175 per cent and Sunday goes to 225 per cent.
Run a standard harvest roster — twelve hours a day for thirteen days, Sunday off, then another thirteen. That’s 312 hours in four weeks. Only 152 are ordinary; the other 160 are overtime. On a base casual rate of $32.90, the effective hourly cost jumps to $48.50 once penalties are applied. To stay Better off Overall (BOOT) compliant, have a safety margin and avoid a Fair Work audit, the only safe flat rate is around $50 an hour. This is why farms that run incorporated entities — companies, trading corporations or unit trusts with corporate trustees — get smashed on harvest wage bills. Once you’re in the federal system, you’re paying city rates for country work.
Now compare that with the WA Farm Employees Award 1985, our state-based system. An older instrument, yes, but written when regulators still understood that grain and livestock don’t run on neat five-day office cycles. There’s no averaging, no theoretical modelling. Ordinary hours run between seven in the morning and seven at night, capped at ten hours per day. Saturdays attract time-and-a-quarter (125%), Sundays time-and-a-half (150%), and public holidays double time-and-a-quarter (225%). Hours worked beyond ten in a day are time-and-a-half for the first two hours and double time after that. That’s it — simple, transparent, and workable. Run the same harvest roster under the WA system — twelve-hour days, six or seven days a week with every second Sunday off — and your labour costs stay predictable. At a base casual rate of $30.35, the effective average sits around $34–35 an hour. No cliffs. No week-three explosion. Just a steady, sensible harvest wage bill.
Put simply, your business structure decides whether you’re paying thirty-five or fifty dollars an hour for the same job. Employ through a company or a trust with a corporate trustee and you’re in the federal system. Employ as a sole trader, partnership, or unincorporated trust and you stay in WA’s. Too many accountants have restructured farms into companies without realising the payroll trap, and too many growers never ask. The gap is staggering — roughly four to five thousand dollars more per worker every four weeks under Fair Work. Multiply that across a crew and a season and you’re talking the price of a new auger or ute gone thanks to Kevin Rudd and interestingly not corrected by the coalition but that’s another story.
The argument for uniform national laws made sense on paper. No one disputed that the old patchwork of awards was messy. But when the states — led by Queensland and New South Wales — referred their industrial relations powers to the Commonwealth in the 1990s and 2000s, they didn’t just tidy up the system. They handed the keys to Canberra. Only Western Australia refused to refer its powers, keeping its own Industrial Relations Act 1979 (WA) and awards such as the Farm Employees Award 1985 alive.
The result today is that any employer structured as a constitutional corporation — which includes nearly every incorporated farm business across the eastern states — falls under the Fair Work Act 2009 (Cth). Unincorporated farms — sole traders, partnerships, and family trusts without a company trustee — were swept into the federal net too, once their states referred their industrial powers to Canberra in the 1990s and 2000s. Only Western Australia refused the referral. Here, small unincorporated employers still operate under the WA Industrial Relations Act 1979 and its state awards. In short, WA kept a door open that every other state slammed shut.
Lower labour costs don’t excuse fatigue. WA’s Work Health and Safety laws are blunt: fatigue is a foreseeable hazard, just like chemicals, augers or PTO shafts. If a worker rolls a ute after a sixteen-hour day on six hours’ sleep, it won’t matter whether you paid them thirty-five or fifty dollars — you’ll still need a lawyer, a very good lawyer.
WorkSafe inspectors will be all over your farm asking questions: what hours were worked, how much rest was taken, where did they sleep, and what controls were in place? The defensible benchmark is twelve hours on, twelve hours off, for no more than twelve to fourteen days before a full day’s rest, preferably once a week. Anyone running operators deep into the night on regular fourteen-hour shifts is inviting trouble. Rotate high-intensity jobs, provide decent quarters near the paddock, and keep digital timesheets — even a simple clock-on, clock-off email trail shows you’re taking fatigue seriously. A farmer who writes rest breaks and fatigue management into the employment contract is in a far stronger position when in front of the judge than one who lets workers push through to midnight.
Lets be clear, Fair Work and WorkSafe don’t exist to help you; they exist to protect workers. Both are large, well-funded bureaucracies with sweeping powers handed to them by Labor governments, and both approach every complaint with a “guilty until proven innocent” mindset. Ignore that at your peril. The days when government wasn’t interested in what is happening in the back paddock are long gone. Every smartphone is a potential evidence log of hours worked and safety systems not in place. One disgruntled worker can set off a compliance investigation with a single phone call.
In this environment, paperwork isn’t red tape — it’s insurance. Record your hours. Keep copies of fatigue plans. Have employment contracts that reflect reality, not theory. Structure your business so it sits under the industrial system that actually fits how farms work. Because once you’re trapped in Fair Work’s or Work Safes world, you’re no longer farming — you’re on trial.
