Exploitation of overseas workers – Summary of recent FWO decisionsAugust 18, 2016
Student visa holders underpaid
Two overseas workers on student visas have been found to have been underpaid thousands of dollars, during a random audit of a fast-food business by the Fair Work Ombudsman.
The two employees were each underpaid upwards of $3,000 and the business failed to issue payslips; under the Fast Food Industry Award, they should have been paid $23.74 for ordinary hours, $28.49 on Saturdays, $33.24 on Sundays and $52.23 on public holidays.
The business has now received a Letter of Caution that places it on notice that further breaches of workplace laws may result in enforcement action.
Tour operators underpay visa holders
A Japanese national working in the Australian tourism sector was underpaid approximately $10,000, and has been reimbursed following action by the Fair Work Ombudsman earlier this month.
The employee was paid sporadically for months, then not at all for her final five pay periods before she resigned; the employer said that the underpayments occurred because the business could not afford to pay wages on a regular basis.
“For an employer to simply shrug off their legal responsibilities to staff by saying they can’t afford to pay them is simply not acceptable,” Fair Work Ombudsman Natalie James said.
Court orders business owners to pay overseas workers
A business in Queensland that deliberately exploited vulnerable overseas workers has been penalised over $200,000 and ordered to pay former staff tens of thousands of dollars in back-pay.
The employees, paid as little as $10 an hour, were underpaid amounts ranging from $8,300 to more than $18,000 when they worked at the Japanese Sakuraya café in two different Queensland locations between 2013 and 2014.
The owners have been penalised $28,000, and the company has been penalised a further $140,000, including record-keeping penalties.
The Court further ordered that costs of more than $12,000 be paid to the Fair Work Ombudsman towards the cost of flying witnesses from overseas to Brisbane for the litigation; this is the first successful Costs Order sought by the Fair Work Ombudsman in relation to international witness travel for a trial that did not proceed.
Fair Work Ombudsman Natalie James said legal action was taken because of the employer’s refusal to rectify the back-payments and because one of the owners had previously been apprised of his workplace obligations following complaints from other employees of an associated entity of the business dating back to 2012.
Ms James says the penalty decision is a strong wake-up call to employers who think they can ignore their workplace obligations. Failure by vulnerable employees to complain about being underpaid is also no excuse for employers to continue to take advantage of staff, particularly when the employer has previously been apprised of its minimum wage responsibilities.
Korean backpackers underpaid
Two Korean backpackers working as cleaners in Sydney were underpaid thousands of dollars over the course of three months in early 2015.
Under the Cleaning Services Award they should have received a minimum of $18.01 an hour – rising to $27.02 on Saturdays, $36.02 on Sundays and $45.03 on public holidays. The two were paid a flat rates as low as $15 an hour.
The two overseas workers were short-changed a total of $5,400 and $4,085 each between March and June, and have now been reimbursed fully after the Fair Work Ombudsman issued a Compliance Notice to the employer.
Employers need a robust approach to identify foreign workers and their visa conditions
“Anyone operating a business, including migrants, needs to ensure they take the time to understand the workplace laws applicable to their business,” Fair Work Ombudsman Natalie James said.
“Visa-holders can be vulnerable if they are not fully aware of their rights or are reluctant to seek help, so we place a high priority on taking action to ensure their rights are protected,” Ms James said.
Almost 75% of all FWO litigation is instigated by visa holders, with 13% of recent FWO decisions involving visa holders (July 2015 – March 2016).
This just goes to show how important compliance with both the Fair Work Act and the Migration legislation is. As the Fair Work Ombudsman has said on a number of occasions, overseas workers are often the most vulnerable members of the work force, and it is therefore crucial that employers have a robust system to identify foreign workers and the conditions attached to their visas which relate to their work rights in Australia.
Ensuring regulatory compliance with foreign workers and contracted labour
With an increasing number of high profile cases in recent months, the concerns of our clients are growing. In response, FCB is bringing together workplace and migration experts from across our group (FCB Smart Visa and FCB Workplace Law) to co-present a series of seminars that will comprehensively cover all the compliance issues for Australian businesses where foreign workers are involved. This holistic approach to navigating both the industrial and immigration regulatory frameworks is made possible by FCB’s unique expertise in both practice areas.
Details of the seminar series to be held in Melbourne (15/16 September), and Sydney (19/20 September), and Brisbane (23 September) can be found here.
If you have any migration matters that you would like to discuss in the meantime, please call one of our migration professionals on 02 9922 5188.