ABCC secures $88k in underpayments for visa holder

Australian Building and Construction Commission

The Federal Circuit Court has awarded a New South Wales worker $88,949 in underpayments following ABCC legal action against his employer – Open Tiling Services Pty Ltd and its director Jae Jung Kim.

In addition to directing the company to pay outstanding wages and superannuation entitlements, Open Tiling Services was penalised $69,300 and Mr Kim $13,860 for their contraventions of the Fair Work Act 2009 (Cth).

In commencing legal action, the ABCC alleged the company contravened the National Employment Standards in the Fair Work Act 2009, and the terms of Open Tiling’s own enterprise agreements resulting in the employee, a Korean national, being significantly underpaid.

The Court found Open Tiling and Mr Kim failed to pay the employee minimum pay rates, public holiday and overtime rates, fare and meal allowances and failed to make regular superannuation contributions. The company also failed to provide the employee with pay slips.

The Court also found Open Tiling terminated the employee without giving the minimum period of notice and failed to pay him his accrued annual leave on termination.

Judge Driver noted that while Mr Kim and Open Tiling relied on advice, which was incorrect, and took steps to rectify the underpayment when it was brought to their attention, the matter was relatively significant having regard to its effect on the employee.

ABCC Commissioner Stephen McBurney said: “This case involved a Korean national engaged as a tiler on a 457 visa. The significant underpayments will now be rectified, and penalties imposed.

“Any employees in the building and construction industry who have concerns about their pay and entitlements should contact us for free advice and assistance.

“Since the ABCC was re-established in December 2016, we have recovered $3,176, 931 for 4,774 employers from 234 employers. Every dollar in the pocket of workers makes a significant and positive impact on their lives.”

Employers and employees can visit abcc.gov.au or call us on 1800 003 338 for free advice and assistance about their rights and obligations in the workplace. A free interpreter service is available on 13 14 50.

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