9 December 2016
Several companies have recently been penalised for underpaying overseas workers. Fair Work Australia is actively monitoring employers to assess their compliance with workplace legislation and sponsorship obligations.
Please ensure that your staff are being remunerated at the market rate for the position. For assistance with sponsor obligations, contact us.
A Taiwanese company that last year back-paid almost $900,000 to a team of overseas workers it brought to Australia has now been penalised in Court for ignoring a demand to make further back-payments to two overseas workers it paid less than $5 an hour.
Chia Tung Development Corp Ltd, which made and installed animal feed mills in regional NSW last year entered into an Enforceable Undertaking with the Fair Work Ombudsman which involved it rectifying $873,000 in underpayments to 43 employees.
The company underpaid the employees – 13 Chinese and 30 Filipino nationals – for work installing animal feed mills across Australia between September 2014 and February 2015. The Ombudsman subsequently found that two of the Filipino nationals had also been underpaid a further total of $61,910 for a previous period of work performed between December 2013 and August 2014.
The Fair Work Ombudsman issued Chia Tung and its Director a formal Compliance Notice earlier this year requiring them to back-pay the workers in full. Under the Fair Work Act, business operators must adhere to a Compliance Notice or make a court application for a review if they are seeking to challenge a notice.
After the Compliance Notice was ignored, the Fair Work Ombudsman commenced legal action. The Federal Circuit Court has now imposed a $24,300 penalty against Chia Tung and a further $4,860 penalty against Lin for failing to comply with the Compliance Notice. The penalties imposed by the Court are 90 per cent of the possible maximums.
In addition to the penalties, the Court has also ordered the company to back-pay the two workers in full. The two workers were in Australia on Subclass 400 short stay business visas during the December 2013 – August 2014 period. Chai Tung paid them a set monthly amount that equated to about $4.90 an hour, which was only a fraction of the minimum hourly rate they were entitled to under the Building and Construction General On-Site Award.
Chia Tung also did not pay the workers’ overtime or penalty rates for Sundays, public holidays and for work undertaken on a rostered day off, and failed to pay their annual leave entitlements.
More than a dozen migrant workers employed at a metal manufacturing business in North West Melbourne have been reimbursed $23,200 following an investigation by the Fair Work Ombudsman (FWO).
Sixteen casual employees from non-English speaking backgrounds were underpaid their ordinary hourly rates of pay, casual loading, penalty and overtime rates over a 10 month period. The underpayments were discovered during audits conducted by Fair Work Inspectors as part of a proactive compliance and education campaign.
The employer, Roo and Oz Sheetmetals Pty Ltd, and its managing director, have rectified the underpayments and entered into an Enforceable Undertaking with the FWO.
Fair Work Inspectors checked the records of the company’s 89 employees who were employed during the audit period. The audit revealed that the majority of workers were employed full-time and were paid above what they were entitled to under the Award.
However, Inspectors found that sixteen casual workers were paid rates equivalent to full-time rates and, as a result, were underpaid their casual loading. The casual workers received hourly rates of between $18 and $19, including on weekends and public holidays. Under the Manufacturing and Associated Industries Award 2010, casual workers of the relevant classification are entitled to receive up to $21.61 per hour for ordinary hours.
Fair Work Inspectors also found that the casual employees were underpaid their weekend and public holiday penalty rates, afternoon shift rates and overtime rates. The highest recovery for an individual worker was $8,677.
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