FWO takes action alleging underpayment of nanny
NOTE: On 1 May 2020, the Court made orders for the Respondents to back-pay the employee $93,235, with no further amounts owing.
17 July 2019
The Fair Work Ombudsman has launched proceedings in the Federal Court alleging that Sydney businessman, Kit Antony (Tony) Lam, underpaid a Filipino nanny and domestic worker up to $155,178.
The regulator alleges that Mr Lam requested or required the employee to work between 88 and 106 hours each week between May 2016 and May 2017, in breach of Australia’s workplace laws.
In addition, the FWO alleges the nanny, aged 26 when she began working for Mr Lam, was covered by the Miscellaneous Award and was underpaid base rates and penalty rates, including those owed for early morning and night hours, overtime hours and public holidays.
Mr Lam’s wife, Ming Wei (Tiffanie) Tong, will also face court for her alleged involvement in requesting or requiring the nanny to work unreasonable additional hours beyond 38 hours a week.
Fair Work Ombudsman Sandra Parker said the action will also help clarify the coverage of domestic workers and nannies under the Miscellaneous Award.
“We allege the worker in this case was vulnerable to exploitation given she was new to Australia, resided with Mr Lam and his family, and did not know what her workplace rights were. The scale of the alleged underpayments and the unreasonable work hours are concerning,” Ms Parker said.
“The Fair Work Ombudsman has an agreement with the Department of Home Affairs where visa holders can ask for our help without fear of their visa being cancelled. Any workers with concerns about their pay, hours of work or entitlements should contact us.”
Fair Work Inspectors investigated after receiving a referral from the then Department of Immigration and Border Protection, who received anonymous reports on the worker’s conditions.
It is alleged that agents for Mr Lam recruited the worker directly from the Philippines. She lived with the couple and their two children in the Sydney CBD for 12 months.
Mr Lam paid the worker 40,000 Philippine pesos per month into her Philippines based bank account. For her 12 months of work, she was paid the equivalent of $12,574 Australian dollars. Spread across all of the worker’s alleged hours, this would equate to just $2.33 per hour.
The FWO alleges the employee was entitled to at least between $17.29 and $18.91 per hour, and up to $37.82 for overtime hours, under the Miscellaneous Award.
If the court decides the worker was not covered by the Miscellaneous Award, she should have been covered by the national minimum wage and entitled to between $17.29 and $17.70 for every hour worked, leading to a total underpayment of $85,834.
The FWO is seeking orders for Mr Lam to make full back-payments plus interest, and for penalties to be imposed. The next Case Management Hearing is on 29 October 2019.
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Matthew Raggatt, Senior Media Adviser
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