Most Read Contributor in Australia, September 2016
The Fair Work Ombudsman (FWO) is the Commonwealth Regulator that
promotes and enforces minimum wages and conditions for
On 4 August 2014, the FWO announced its Overseas Workers Team
(OWT) will conduct a review of the wages and conditions of overseas
workers who hold the 417 Working Holiday Visa (417 Visa). This will
involve the FWO conducting field visits in the coming months.
Statements in this FWO announcement suggest that the cleaning
services industry will be targeted by this review.
The FWO announcement states that the cleaning services industry
is among the industries that attract the highest number of FWO
litigated proceedings regarding the underpayment of overseas
Since the FWO was established in July 2009, it has commenced 51
legal proceedings regarding the underpayment of wages and
conditions of overseas workers, representing approximately 20% of
The top five industries involved in these 51 legal proceedings
include restaurant, retail, fast food, cleaning and maritime.
Additionally, the largest total penalty awarded by the courts
was against cleaning company Housekeeping Pty Ltd and its manager
in 2013. The total penalty awarded in this case was $343,860;
$286,550 for the company, and $57,310 for its manager. These
penalties were imposed in addition to the $22,510 ordered as
back-pay to six cleaners, five of whom were on 417 Visas.
The total penalty in this case exceeded the previous record
total penalty in 2009 of $288,000, which also involved the cleaning
services industry. This comprised of a $240,000 penalty for Saya
Cleaning Pty Ltd and $48,000 for its director, for underpaying its
Ongoing FWO compliance measures
The final mention of the cleaning industry in the FWO
announcement is that the FWO already has ongoing involvement in
compliance measures for the industry, in recognition that it
employs significant numbers of overseas workers.
The inherent characteristics of cleaning services, including
seasonal demand, odd hours, and sometimes remote workplaces, means
that the industry attracts many overseas workers, particularly
those on 417 Visas.
Given that the OWT was established in recognition of overseas
workers' general capacity to be vulnerable and/or requiring
special assistance, other employees who hold a visa other than the
417 Visa may also be caught by the review (for example, student
The implication for employers in the cleaning services industry
is a need to comply with both employment and migration legislation.
As an employer of any overseas workers, you should ensure that:
you are compliant with the minimum wages and conditions in the
Fair Work Act 2009 and the Cleaning Services Award
your workers have appropriate work rights (if they are not
Australian citizens or permanent residents).
Businesses that are non-compliant may be issued with
infringement notices or, in more serious cases, prosecution in the
Federal Circuit Court where maximum penalties under the Fair
Work Act 2009 include $51,000 (per contravention) for
companies and $10,200 (per contravention) for individuals.
Penalties also apply under the Migration Act 1958 where
employers have engaged overseas workers who do not hold an
appropriate visa, or engage in work which is contrary to their visa
This publication does not deal with every important topic or
change in law and is not intended to be relied upon as a substitute
for legal or other advice that may be relevant to the reader's
specific circumstances. If you have found this publication of
interest and would like to know more or wish to obtain legal advice
relevant to your circumstances please contact one of the named
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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