The Fair Work
Ombudsman (FWO) recently announced its intention to become more
accessible to visa-holders from non-English speaking backgrounds
who may be more vulnerable to underpayment or unaware of their
workplace rights. The FWO has begun cracking down on employers,
forcing them to fork out thousands of dollars in back-pay and
penalty fines for underpaying workers.
In a recent incident, a farm in Queensland has landed itself in
trouble for underpaying 93 Korean backpackers more than $16,000 for
work sorting and packing carrots.
The workers were entitled to a minimum wage of $21.61 under the
2010 Horticulture Award however they were paid only $21.08 as a
flat rate or occasionally piece-rates for the amount of product
sorted. The employer was unaware of their obligation to have made a
written piecework agreement at that rate with its employees prior
to their employment commencing.
This confusion could have caused a hefty penalty from the FWO
however the company was quick to sign an enforceable undertaking
that they would back-pay the employees, send letters of apology and
take steps to educate itself of its obligations.
However, innocent confusion among employers about their
workplace obligations is not the only situation in which
underpayment occurs. Another recent matter has led to the FWO
describing a Queensland strawberry farm as "exploiting"
workers on Holiday visas by underpaying them, despite previously
being put on notice.
Six workers on this farm were under-paid by $2,601 over a short
two-week period, a somewhat minor infraction. However, as the
company had previously been in hot water in 2013 for the same
issue, the FWO didn't hold back its punishment. Both of the
company's Directors were individually found liable for $6,400
while the company itself copped a further fine of $56,000.
In a similar incident in the Northern Territory, the Federal
Court stepped in to penalise a computer service company which
sponsored its workers under 457 skilled visas. The case, Minister
for Immigration and Border Protection v Hallmark Computer Pty Ltd
 FCA 678, involved a company Director who was found to have
lied to the court and investigators about the conduct of his
company which consistently underpaid its employees for overtime
hours which they were forced to work. The company also forced
workers to repay a portion of their wages and threatened them with
the loss of their jobs if they complained.
The court made note that employers must be mindful of the number
of hours employees work, as well as the minimum penalties for
overtime work. The company was hit with a $430,000 fine whilst the
Director was personally liable for $86,000.
These cases illustrate the importance of being aware of your
obligations as an employer, particularly as the court and FWO may
fine Directors personally if they fail to comply with employment
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Recent amendments to the Migration Act and regulations, along with the imminent commencement of the new federal safety net under the Fair Work Act, highlight a number of issues for consideration by employers in documenting terms and conditions of employment for foreign nationals engaged to work in Australia under Subclass 457- Business (Long Stay) visas.
If you employ 457 visa holders in your business, you should ensure that you are meeting your sponsorship requirements.
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