A labour-hire operator in Sydney who says she hired young Asian workers because they are “younger, cheaper and faster than locals who are old and slow” has been penalised more than $100,000, as a result of legal action by the Fair Work Ombudsman.
Sydney woman Yan Hu has been penalised $17,556 in the Federal Circuit Court and her company Global Express Consultancy Pty Ltd has been penalised a further $87,783.
The penalties were imposed in the Federal Circuit Court after Hu admitted breaching workplace laws by underpaying 19 employees – all 417 working holiday visa-holders from Taiwan and Hong Kong – a total of more than $45,000.
The Fair Work Ombudsman said the penalties should help to dispel the myth that overseas workers of any particular nationality can be paid a ‘going-rate’ that is less than what the law requires.
“Overseas workers are entitled to receive the same minimum rates and entitlements that apply to all workers in Australia – and the rates are not negotiable,”
The Global Express employees were underpaid between February, 2014 and May, 2015 when Hu’s company supplied them to work at three factories in Sydney:
A Taren Point factory operated by Banquet Desserts Pty Ltd, which supplies cheesecakes and muffins to Coles and Woolworths,
A factory at Mascot operated by Vienna Schubert Estia Pty Ltd, supplying patisserie products to organisations including hospitality businesses, airlines and schools, and
A Kirrawee factory operated by South Pack Laboratories Pty Ltd, which operates a business packing vitamins and other non-prescription complementary medicines.
Hu paid employees flat rates of $16 to $18 an hour, resulting in underpayment of the minimum hourly rates, casual loadings, Saturday penalty rates and overtime rates the employees were entitled to under the applicable Awards.
Hu also unlawfully deducted bonds of up to $400 from some of the employees’ wages, to be returned if they stayed with her company for at least six months and were not “lazy”. Pay slip laws were also contravened.
Fair Work inspectors investigated after employees contacted the Agency for assistance.
Tthe Fair Work Ombudsman says the penalty also serves as a reminder to companies that they face potential reputational and legal risks if they source labour through a contractor and do not take any steps to ensure the contractor pays the workers correctly.
“Outsourcing work to the lowest-cost contractor and turning a blind eye to whether the contractor pays workers’ correctly is not acceptable conduct,”
In the 2015-16 financial year, 13 per cent of dispute forms lodged with the Fair Work Ombudsman related to visa-holders and 44 per cent of visa-holders who came to us for assistance were 417 visa-holders.
The Fair Work Ombudsman recovered just over $3 million for all visa-holders in 2015-16, with $1.37 million of this for 417 visa-holders.
In 2015-16, 38 of the 50 litigations (76 per cent) filed by the Fair Work Ombudsman involved a visa-holder – and 16 of those litigations involved a 417 visa-holder.
Source: Fair Work Obudsman Media Release 21/10/2016
