Fair Work Commission Update – Nov 2015


Dentist allegedly underpaid $66 000

An international student studying dentistry in Melbourne was allegedly underpaid tens of thousands of dollars after being recruited by a dental clinic in the CBD.

The female student, from South Korea, was recruited by the Nobrace Dental Clinic on a 457 skilled worker visa on a nominated annual salary of $50,000. However, documents lodged with the Federal Circuit Court allege the woman, in her late 20’s, was paid a flat rate of just $15 an hour.

On 1 December 2015 the Fair Work Ombudsman announced legal proceedings against the 2 former owners of the Nobrace Dental Clinic and the company.

In its Statement of Claim, the Fair Work Ombudsman alleges the employee was short-changed a total of $66,945 between April, 2011 and February, 2014. Under the Health Professionals and Support Services Award, the employee should have been paid between $16.90 and $18.93 for normal hours and up to $37.85 an hour for overtime.

The Fair Work Ombudsman discovered the alleged underpayment when it investigated a request for assistance from the visa-holder.

Fair Work inspectors allegedly found that tax deductions from the employee’s wages were based on her nominated salary, not what she was actually paid.  False time-and-wages records for the employee were also allegedly created to give the impression the employee was paid her nominated salary.  Workplace laws relating to pay-slips, payment of annual leave entitlements and employee records were also allegedly breached and a Notice to Produce records was not complied with.

The owners face maximum penalties of up to $10,200 per contravention and their company up to $51,000 per contravention. The Fair Work Ombudsman is seeking a Court Order for full back-payment of the employee and an injunction restraining the couple from underpaying health industry workers in future.


Hotel Resort underpayments of $63,000 to 457 visa holder a breach of fair work and racial discrimination laws

The former operators of a Tasmanian resort, Scamander Beach Resort Hotel, will face Court for allegedly underpaying two Malaysian visa-holders more than $63,000. The Fair Work Ombudsman has commenced legal proceedings against the owner, Mr Chang, and his private company Yenida Pty Ltd.

Mr Chang allegedly advertised in a Malaysian newspaper in 2007 for a chef to work at the hotel’s restaurant. Yenida subsequently sponsored a Malaysian national on a 457 skilled worker visa. His wife accompanied him on a spousal visa. She was also employed at the restaurant as a kitchen hand for about four months.

The man was allegedly required to work six days a week, starting each day when the restaurant opened for lunch and finishing after it closed for dinner.

He was paid an annual salary of up to $46,280, but did not cover applicable penalty rates for night, weekend and overtime shifts. He was allegedly underpaid $52,928 between 2010 and 2014.

His wife was allegedly required to work the same hours and was paid a flat rate of between $446 and $594 a week. She was allegedly underpaid $10,406 between September, 2009 and January, 2010.

In contrast to its treatment of the Malaysian couple, Mr Chang and the Resort paid Australian employees their minimum hourly rates, penalty rates and loadings largely in accordance with the Hospitality Industry (General) Award. It is alleged that Mr Chang and the company chose to pay the Malaysian couple significantly less than Australian staff because of their race, in breach of racial discrimination laws.

“Overseas workers in Australia have the same rights and entitlements as Australian workers and must be paid according to Australian workplace laws.

“We treat underpayment of overseas workers and contraventions of their workplace rights very seriously because we know they can be vulnerable if they are reluctant to complain or are not fully aware of their rights.”

Yenida Pty Ltd faces maximum penalties of up to $51,000 per contravention and Mr Chang faces penalties of up to $10,200 per contravention. The Fair Work Ombudsman is also seeking a Court Order for Mr Chang’s company to back-pay the former employees in full.

Under the Fair Work Act, it is unlawful to discriminate against employees on the grounds of pregnancy, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer responsibilities, religion, political opinion, national extraction or social origin.


Spot checks conducted on Western Sydney businesses

The Fair Work Ombudsman will audit up to 200 businesses throughout western Sydney as part of a new compliance campaign.

Fair Work inspectors will check that employers are paying the correct minimum hourly rates, penalty rates, allowances, loadings and providing appropriate meal breaks.  Compliance with record-keeping and pay-slip obligations will also be monitored.

Employers from a range of sectors will be included, such as manufacturing, road freight transport, carpentry, building and industrial cleaning, computer system design, cafes and restaurants, investigation and security, childcare, hairdressing and beauty, and employment placement and recruitment.

Fair Work Ombudsman Natalie James says western Sydney is home to thousands of businesses and the Agency receives a constant stream of requests for assistance from employees across the western suburbs.  She says one of the aims of the campaign is to ensure employers are aware of their workplace responsibilities and how the Agency can assist them to access, understand and apply information to build a culture of compliance.

“It’s important we check workers are being paid correctly, but we also want to be pro-active about ensuring employers understand their obligations,” Ms James said.

This is a timely reminder for employers that immigration compliance is relevant for all businesses regardless of size or whether they hire local employees or employees on work visas.

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