The Fair Work Ombudsman has commenced action under the ‘serious contravention’ provisions of the Protecting Vulnerable Workers laws, alleging the underpayment of 30 migrant employees in Sydney.
The FWO has commenced proceedings in the Federal Court against Winit (AU) Trade Pty Ltd, a Hong Kong-owned company that provides warehousing and distribution services in Sydney for products sold on online platforms, including eBay.
Also facing court is the company’s director and general manager Mr Song Cheng.
The regulator alleges Winit underpaid 30 employees a total of $368,684 under the Services and Wholesale Award 2010 between July 2017 and June 2018.
All 30 employees were working holiday visa holders, mostly from Taiwan and aged in their 20s, who performed various duties associated with sorting, loading and packing goods at Winit’s warehouse at Regents Park, western Sydney.
Individual alleged underpayments range from $446 to $28,202, with 19 of the employees being allegedly underpaid more than $10,000.
It is alleged that four of the underpayment contraventions meet the definition of ‘serious contraventions’ under the Protecting Vulnerable Workers amendments to the Fair Work Act because there is evidence to show the contraventions were deliberate and systematic.
Fair Work Ombudsman Sandra Parker reminded companies that maximum penalties for serious contraventions are $630,000 per breach.
“Employers are on notice that the Fair Work Ombudsman will enforce the Protecting Vulnerable Workers laws to ensure that any individuals or companies who allegedly commit serious contraventions are held to account,” Ms Parker said.
“All workers in Australia have the same rights, regardless of nationality and visa status. Anyone with concerns about their pay or entitlements should contact us for free assistance.”
It is the fifth matter nationally in which the FWO has alleged the increased maximum penalties should apply.
FWO investigated Winit after receiving requests for assistance from several employees.
It is alleged employees regularly worked up to 60 to 70 hours per week over six or seven days but most were paid a flat hourly rate of $24.41 with no penalty or overtime entitlements.
Winit allegedly also failed to comply with laws relating to pay slips, providing new employees with a Fair Work Information Statement and various award obligations, including shift allowances, meal allowances and frequency of pay.
FWO also alleges the company contravened adverse actions laws by reducing at least two employees’ shifts after they refused Winit’s settlement offer, made shortly after FWO commenced its investigation, to pay only 25 per cent of their outstanding entitlements.
All employees have now been back-paid in full.
It is alleged Mr Cheng was involved in Winit’s contraventions concerning overtime rates, penalty rates and frequency of pay.
Under the Protecting Vulnerable Workers laws, which came into effect in September 2017, the maximum penalties for the alleged serious contraventions are $630,000 per breach for a company, 10-times the penalties which would ordinarily apply.
In addition to the penalties faced for the alleged ‘serious contraventions’, Winit faces penalties of up to $63,000 per contravention for other alleged contraventions.
Mr Cheng faces penalties of up to $12,600 per contravention for the contraventions he was allegedly involved in. Serious contraventions are not alleged against Mr Cheng.
A directions hearing is listed in the Federal Court in Sydney on 18 June 2021.