Farm chemicals and large businesses
Primary production has changed over the last 20 years. Farms are growing in size and capability, requiring farmers to change the way they operate their business. In some cases, farms are now fully functioning workplaces, with multiple employees performing various specialist roles.
This change has been beneficial in that employees can specialise in specific tasks. However, this can mean that some business processes have not kept pace with the changes, which can lead to the systematic failure of the business to address key issues such as the use of chemicals, residue management and record keeping.
The department regularly audits chemical users throughout Victoria across a wide range of industries. Analysis of recent audit data has identified trends that need to be addressed by large farming businesses to ensure both they, and their employees act appropriately when using agricultural and veterinary chemicals.
The Agricultural and Veterinary Chemicals (Control of Use) Act 1992 (the Act) and subordinate regulations provide a regulatory framework for chemical use on farms. There are several sections of the Act that are of importance for large businesses, in particular Section 73.
Chain of responsibility
Section 73 of the Act creates a chain of responsibility starting from the chemical user, who may be a direct employee or a contractor, through to the employer. An employer is responsible for any offence committed by an employee or contractor in the course of their employment unless the employer:
- did not authorise or permit the acts or omissions of the employee
- used all reasonable diligence to prevent the employee from committing the act or omission.
As such, the onus is clearly placed upon the employer to make certain they have systems and processes in place that ensure appropriate chemical use. While quality assurance (QA) programs provide an ideal system to address many of these issues, large businesses must also ensure they meet the legal requirements set out in the Act and subordinate regulations.
Illegal use of chemicals
Scenario 1: A large tomato producer has employed a seasonal worker to spray chemicals on his crop. The chemical user sprays endosulfan, a 'restricted use' chemical on the tomatoes. He has completed a course in the safe and appropriate use of farm chemicals.
Users of 'restricted use' chemicals must be trained in the safe and appropriate use of farm chemicals and hold authorisation to use these chemicals. The most common form of authorisation is an Agricultural Chemical Users Permit (ACUP), which is issued by the department.
In this example, the employee (i.e. the seasonal worker) did not hold appropriate authorisation, hence they have committed an offence under the Act. Employers are responsible for ensuring employees have the appropriate training and authorisation (e.g. licence, permit) to perform the tasks required by their position. In this example, the employer did not ensure the worker was appropriately authorised to use a 'restricted use' chemical, therefore the employer has also committed an offence.
Inappropriate use of chemicals
Scenario 2: An orchardist instructs their employee to spray a block of peaches with an insecticide on an excessively windy day. When the employee sprays the block, some of the insecticide drifts onto the neighbour's apricots, which are picked the next day. The apricots are tested and contain unacceptable residues of the insecticide.
In this scenario the employer gave a specific instruction to the employee to spray the insecticide during inappropriate weather conditions. As the employee's action has resulted in the contamination of the neighbour's apricots, they have committed an offence. Since the employer specifically instructed the employee to spray during inappropriate conditions and did not have a process in place that addressed this potential risk (reasonable diligence), they have also committed an offence.
Non-compliant record keeping
Scenario 3: A large vegetable grower has multiple employees applying chemicals to their crops. The users keep records of their chemical use, but fail to make a record of the full name of the chemical user.
The system of recording chemical use as set out in the Agricultural and Veterinary Chemicals (Control of Use) Regulations 2007 ensures that chemical use can be traced back to the specific person who applied the chemical. This ensures that the user can be held accountable for their actions. As the employees have not complied with the record keeping requirements, they have committed an offence. As the employer failed to have a system in place that ensured the required records were kept, they too have committed an offence.
Sale of contaminated produce
Recent amendments to the Act have placed greater emphasis on the responsibility of people selling produce to ensure it is fit for sale. It is now an offence for a person to sell produce derived from a plant or animal that contains a chemical residue that is above the Maximum Residue Limit (MRL) of either the Food Standards Australia New Zealand (FSANZ) or the Australian Pesticides and Veterinary Medicines Authority (APVMA). This is demonstrated in the following example
Scenario 4: An employee of a business that produces hydroponic tomatoes uses a fungicide in a permitted off-label manner to control botrytis on young tomato plants that are planted inter-row with mature tomato plants. Tomatoes are then harvested from the mature tomato plants, and are later sampled as part of the department's chemical residue monitoring program. An unacceptable residue of the fungicide is detected at a level above the maximum residue limit (MRL).
In this specific scenario, the employee's chemical use was a permitted off-label use as the chemical was not used in at a rate higher than the label rate, more frequently than the label states or in contravention of a 'DO NOT' statement. Despite this, the producer has still committed an offence because it is illegal to sell or offer to sell produce if it is contaminated. In this scenario, it is the responsibility of the business to ensure that internal spray drift of chemicals does not occur, and a sampling and analysis regime should be used to confirm that the off-label use of the fungicide did not result in unacceptable residues.
To protect farming businesses and their employees, it is essential for employers and business owners to address the risks associated with inappropriate or illegal use of chemicals. Large businesses must have clear processes and procedures in place to address risks and use chemicals according to good agricultural practice.
Chemical Standards Officers
Fax: (03) 5430 4590
|Steve Field||(03) 5430 4463|
|Alex Perera||(03) 5430 4591|
|Felicity Collins||(03) 5833 5203|
|Neil Harrison||(03) 5336 6616|
|Craig Clutterbuck||(03) 5226 4719|
|South East and Metro|
|Jane Collin||(03) 5172 2198|
|Natalie Myring||(03) 5924 2609|
Enquiries from other regions should be directed to the nearest of the above-named regional officers.