Fair Work Ombudsman Case Studies Table of Contents Overseas Workers and Working Holiday Makers ..................................... 2 FWO vs Bricklane British Curry House ........................................................................................ 2 FWC vs United Consulting Services for Ignoring Compliance Notice .......................................... 3 Hallmark Computers Darwin ........................................................................................................ 4 Fair Work Orders and Compensations ................................................. 5 FWO v Complete Windscreens (SA) Pty Ltd ................................................................................ 5 Stewart v Next Residential Pty Ltd: Annual Salary Precedent ...................................................... 9 FWO for the Cleaners ................................................................................................................ 10 Penalised for Sham Courier Contracts ....................................................................................... 11 Lycamobile vs Fair Work ............................................................................................................ 12 Fair Work vs Peter Jones ........................................................................................................... 13 Serious Misconduct ...................................................................... 14 Ms. Heidi Cannon v Poultry Harvesting Pty Ltd ......................................................................... 14 Payroll Concerns – Accessory .......................................................... 16 FWO v Oz Staff Career Services Pty Ltd & Ors [2016] .............................................................. 16 PAY- Fair Work Ombudsman Case Studies (December 2017) © The Institute of Certified Bookkeepers Page 1 Overseas Workers and Working Holiday Makers FWO vs Bricklane British Curry House Curry house operator faces Court over alleged unlawful, cash-back exploitation A former Perth restaurant operator is facing Court for allegedly requiring a Bangladeshi worker to repay thousands of dollars of his wages, and then dismissing him because he lodged a workers' compensation claim after injuring his back at work. The Fair Work Ombudsman has commenced legal action in the Federal Court against Perth man Sushil Kumar, who formerly owned and ran the Bricklane British Curry House in Leederville. Bricklane British Curry House and its director, Sushil Kumar, are suspected to have paid cook Khondker Riyadh Hasan a flat rate of $1634 a fortnight, before making him withdraw cash and pay back $434. The allegedly underpaid worker is a Bangladeshi man who was sponsored by Mr Kumar's company to work as a cook at the Bricklane British Curry House on a 457 skilled worker visa. Apparently, the cook, aged in his late 30s, was contracted on an annual salary of $54,000 when he was recruited from Bangladesh in 2015. The cook generally, worked six or seven days a week, often performing more than 50 hours work per week. Mr Hasan was unable to work from February 10 because of a back injury sustained at work, and was prevented from returning on April 4, after he recovered. It is further alleged that the cook sent a workers' compensation claim to Mr Kumar in June last year, and Mr Kumar responded by dismissing him the following day. Mr Kumar allegedly then contacted the Department of Immigration and Border Protection to inform them that the cook's employment had been terminated. After being dismissed, the cook lodged a request for assistance with the Fair Work Ombudsman and an investigation was commenced. It is alleged the dismissal contravened the Fair Work Act because it amounted to adverse action against the cook for exercising his workplace right to lodge a workers' compensation claim. Apparently the unlawful cashback arrangement and the underpayment of contractual and other minimum entitlements led to the worker being short-changed a total of $38,822. Update on Case The Ombudsman claims Mr Kumar dismissed him for exercising his workplace right. The Ombudsman also claims Mr Kumar, the director of parent company Bikaner India which is also facing the Federal Court, was aware of Mr Hasan's roster and rates of pay. The Ombudsman has asked Mr Kumar to pay Mr Hasan $38,822 plus superannuation within 28 days. Mr Kumar faces penalties of up to $10,800 for each of the 13 contraventions and Bikaner India faces a fine of up to $54,000 per contravention. References . Bikaner India Litigation Article . Fair Work Ombudsmen – Visa Holders and Workplace Rights and Entitlements . ICB – Employing Overseas Workers PAY- Fair Work Ombudsman Case Studies (December 2017) © The Institute of Certified Bookkeepers Page 2 FWC vs United Consulting Services for Ignoring Compliance Notice Labour-hire operator, United Consulting Services, has been fined after paying car debt instead of paying apprentice. Melbourne labour-hire operator Leonard Greenan has been referred to the Commonwealth Director of Public Prosecutions and fined $10,800 after failing to repay three months' worth of wages to an apprentice mechanic after being ordered to do so by the Fair Work Ombudsman. Federal Court Judge, Joshua Wilson, found that instead of paying the worker his wages, Mr Greenan issued invoices to the dealership “allegedly for the worker's wages but in reality was for the progressive down payment of the purchase price for an expensive Peugeot motor vehicle.” Following its initial investigation, the Fair Work Ombudsman issued a Compliance Notice requiring Mr Greenan and his companies, United Consulting and United Consulting Services, to back-pay the worker a total of $7,066 in outstanding wages – but this notice was not complied with. Under the Fair Work Act, business operators must adhere to Compliance Notices or make a court application for a review if they are seeking to challenge a notice. Failure to comply with a Compliance Notice can result in financial penalties of up to $27,000 for a company and $5,400 for an individual. Bridging Visa The employee, aged 29, was in Australia on a bridging visa and had also obtained loans to pay $9,500 to Mr Greenan for a visa sponsorship service that he offered, but did not progress. Mr Greenan supplied the Pakistani employee to work as a mechanic at a car dealership in Richmond between January and March 2016, but failed to pay the worker any wages during this time. Judge Wilson said Mr Greenan, “personally benefitted out of the worker's service, rather than paying the worker, wholly antithetical to his role in placing the worker and his obligations under the Fair Work Act.” He said Mr Greenan's “brazen attitude” and “appalling conduct” warranted the imposition of penalties. “The respondent could have but failed to offer a repayment regime. He could have but failed to make any payments to the worker. “The only contrition exhibited by the respondent lay in his being caught. In my view, there was no real contrition in this case.” he said. PAY- Fair Work Ombudsman Case Studies (December 2017) © The Institute of Certified Bookkeepers Page 3 Hallmark Computers Darwin Hallmark Computers has been slapped with a $516,000 fine by the Federal Court for underpaying workers. In June, the Federal Court found the company had engaged in “deliberate, deceptive and systematic” abuse of workers employed under the 457 skilled visa scheme. The court heard that the Hallmark owner Ashok Alexander coerced employees from India and the Philippines into returning a significant pay packet every fortnight in cash under threat of losing their job and deportation. This meant that employees' annual salaries were pushed below the minimum threshold for 457 visa holders, while appearing to the Immigration Department to be making legitimate wage payments. Alexander previously claimed to CRN's sister title, iTnews that he had reached an agreement with the workers to pay them $45,000 per annum – under the 457 threshold, but in line with the salaries earned by the organisation's local staff. The company and its owner were hit with fines at the top end of the sentencing threshold, which Judge Robert Buchanan said would ensure the risk of being caught breaking 457 rules is "not seen by those who commit civil penalty offences as an acceptable cost of doing business". Alongside the $516,000 fine, Hallmark and Alexander were also told to pay back the three 457 visa workers, still employed at the company, a combined $66,000, and the Commonwealth another $17,500 in taxes. The Judgment The court found that the breaches involved “calculated, systematic, repeated and callous infringements of the sponsorship conditions and the rights of the employees” and were “a cynical misuse and exploitation” of the company's position. Hallmark was also ordered to pay more than $83,000 in restitution to the workers and its sole director, Ashok Alexander, was also personally penalised $86,000. The court found that from October 2012 to November 2014, the company underpaid the 457 workers and also illegally recovered costs from them by requiring them to repay some of their monthly salary. One of the employees was also being told to work in a different role from the position he had been sponsored to fill. The court action followed an investigation into the company by the Department of Immigration and Border Protection. References . Workforce Guardian – Fine for Underpaying Workers . ARN News – 457 Workers Breach . CRN News – Fine for Underpaying Workers PAY- Fair