A small business operator in Darwin will face court in December for allegedly paying his young, overseas workers less than $5 an hour.
The Fair Work Ombudsman alleges the operator of Scott’s Painting Service, Scott Davenport, paid three workers $450 for 134 days’ work, which equates to hourly rates of between $4.62 and $4.71.
It also alleged a fourth worker was paid $300 for five days’ work, which works out to be $11.54 an hour.
The workers were French nationals in their 20s in Australia on 457 working holiday visas. The underpayments are alleged to have occurred between December 2013 and January this year.
The business engaged the workers to perform painting and general labouring duties at a local college. The Fair Work Ombudsman investigated the matter after the workers sought help.
Rachel Drew, partner at TressCox Lawyers, told SmartCompany the Fair Work Ombudsman regards overseas workers as a vulnerable group.
“Working visa holders are typically young, may not have English as a first language and have little opportunity to understand and enforce their workplace rights,” she says.
“The ombudsman is ready and willing to investigate and commence court proceedings against businesses who exploit them.”
Drew says it is very important that employers who use overseas labour know the correct wages and entitlements for this particular group.
“Overseas workers are entitled to the same wages and conditions as if they were Australian residents, and there are no exceptions because of the temporary nature of their engagement,” she says.
Fair Work alleges that after initially cooperating with the ombudsman and agreeing to rectify the underpayments, the operator of Scott’s Painting Service ceased cooperating and did not make any back-payments to the former employees.
In addition, the business operator also allegedly failed to respond to a notice to produce documents issued by Fair Work inspectors in March.
Drew says the employer watchdog focuses on ensuring employers rectify underpayments where they are found.
“Where an employer provides full cooperation to the ombudsman, and engages reasonably with the ombudsman’s investigators in relation to the calculation of correct entitlements, the ombudsman is less likely to prosecute that employer,” she says.
“If the only way to ensure an employer cooperates or rectifies an obvious underpayment is to commence a court claim, the ombudsman will do so. That does not mean employers need to simply agree with the ombudsman. The employer is entitled to put its case to the ombudsman.”
Fair Work Ombudsman Natalie James said in a statement an attempt was made to resolve the matter outside of court, but this was not successful.
“Our inspectors attempted to engage with this business operator to try to resolve the payment matters by agreement and obtain the documents required for our investigation, but were not able to secure sufficient co-operation,” she says.
“Young and overseas workers can be vulnerable if they are reluctant to complain or not fully aware of their workplace rights, so we place a high priority on taking action to protect their workplace rights.”
A directions hearing will be held in the Federal Circuit Court in Darwin on December 1. The business operator faces a maximum penalty of $10,200 per breach.
SmartCompany contacted Scott’s Painting Service this morning, but did not receive a response prior to publication.
Broede Carmody is a former senior SmartCompany reporter. Before this, he was a co-editor of RMIT University’s student magazine Catalyst.
