Penalties for underpayment of Sydney nanny
15 March 2021
The Fair Work Ombudsman has secured $37,500 in penalties in court after a domestic worker and nanny in Sydney was underpaid by $93,235 in one year.
The Federal Court has ordered the employer Kit Antony (Tony) Lam to pay penalties of $32,500 and his former wife Ming Wei (Tiffanie) Tong to pay $5,000 in penalties.
Mr Lam and Ms Wong agreed that the female employee worked at times up to 82 hours per week during her employment with the family between May 2016 and May 2017.
The employee, aged 26 when she began her work, was a citizen of the Philippines and her employment with Mr Lam was her first job in Australia. She lived with the then couple and their two young children in the Sydney CBD throughout her employment.
Mr Lam paid the worker 40,000 Philippine pesos per month into her Philippines-based bank account. Across the 12 months of her work, this was the equivalent of a total $12,574 Australian dollars.
The parties agreed that under the Miscellaneous Award 2010 the employee should have received the equivalent of $105,809 Australian dollars for hours worked. Mr Lam admitted the amounts paid to the employee resulted in underpayments of base rates and penalty rates, including those owed for early morning and night hours, overtime hours and public holidays.
Fair Work Ombudsman Sandra Parker said the case highlighted the consequences if employers require unreasonable hours of their employees.
“The scale of the underpayments in this matter was particularly concerning to the Fair Work Ombudsman. We viewed the employee as a vulnerable worker because she was new to Australia, resided with her employer, and did not know her workplace rights,” Ms Parker said.
“The Fair Work Ombudsman prioritises matters involving vulnerable workers, including migrant workers, and will continue to take court action to ensure employers are held to account. Workers with concerns about their pay, hours of work or entitlements should contact us.”
The parties agreed that the employee had been unreasonably required to work more than 38 hours per week in breach of the Fair Work Act’s National Employment Standards, and that Ms Tong was involved in this particular breach. There was also annual leave, record-keeping and pay slip breaches.
All underpayments were rectified last year, three years after the employee ceased work.
Justice Nye Perram said the contraventions relating to underpayments and the working of “excessive” hours were “quite serious”.
“Mr Lam’s conduct was deliberate in the sense he decided to hire a domestic worker and nanny from overseas and to pay her outside the Australian regulatory framework,” Justice Perram said.
The FWO has an agreement with the Department of Home Affairs where visa holders can ask for our help without fear of their visa being cancelled. See information for visa holder workers.
Employers and employees seeking assistance can visit www.fairwork.gov.au or call the Fair Work Infoline on 13 13 94. An interpreter service is available on 13 14 50. Know a workplace not doing the right thing but don’t want to get involved? Report it anonymously – in your language.
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Matthew Raggatt, Assistant Media Director (A/g)
Mobile: 0466 470 507
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