Almost $30,000 in fines for failing to keep records for foreign workers

29 September 2011

Two companies and two directors associated with a Perth café have been fined a total of $28,820 after failing to keep proper employment records for three Chinese workers who were not paid wages for months at a time.

  • Orwill Pty Ltd - which leased the Jacaranda Deli and Café in High Wycombe and sponsored three Chinese workers to come to Australia on 457 visas to work as cooks at the cafe – has been fined $12,100,
  • Orwill director and part-owner Irwan Lewis Farkas, of Tennant Creek, has been fined $2200,
  • Total Trades Personnel Australia Pty Ltd, which operated the café, has been fined $12,100, and
  • Total Trades Personnel Australia director and former café manager Siaw Kin Yeow, now of Singapore, has been fined $2420.

The fines, which are the result of a prosecution by the Fair Work Ombudsman, were imposed in the Federal Magistrates Court and must be paid by October 28.

The respondents admitted breaching workplace laws by being involved in failing to keep proper employment records for the three Chinese employees - two men and one woman - and failing to issue them pay slips.

The lack of basic time-and-wages sheets prevented Fair Work inspectors from determining whether the Chinese workers had been underpaid.

However, Federal Magistrate Toni Lucev said the evidence indicated there was a failure to pay some of the employees for several months at a time, resulting in the need for later back-payments of up to $11,000.

Federal Magistrate Lucev said: “The Court ought leave no room for doubt as to its view that foreign workers who enter Australia on business sponsored visas ought to have their employment records maintained as required by Commonwealth workplace relations legislation.”

The Chinese employees worked at the cafe in 2008. The café no longer operates.

The Fair Work Ombudsman started investigating the café in 2009 after receiving a complaint from a migrant advocate that the Chinese workers were being underpaid and that their hours of work were not being recorded.

Fair Work Ombudsman Nicholas Wilson says breaches of record-keeping obligations are treated very seriously when they prevent inspectors from determining whether workers are being paid correctly.

“We will not hesitate to pursue employers who blatantly flout their record-keeping obligations and we treat cases involving foreign workers particularly seriously,” Mr Wilson said.

The penalties in this case are among the highest the Fair Work Ombudsman has secured for a case solely involving record-keeping and pay slip breaches.

Maximum penalties for record-keeping obligations have increased under the Fair Work Act.

Federal Magistrate Lucev said there was also a need to deter the respondents from re-offending, as each of them continues to operate at a corporate and individual level, including Total Trades Personnel operating as a labour hire company.

The Fair Work Ombudsman has a number of tools on its website - www.fairwork.gov.au - to assist employers to keep proper records, including templates for time-and-wages sheets and pay slips.

Employers or employees seeking assistance can also contact the Fair Work Infoline on 13 13 94.

A free interpreter service is available on 13 14 50, and information on the website is translated into 27 different languages.

The Fair Work Ombudsman has also launched 14 Online videos to assist foreign workers understand their workplace rights and entitlements.

The short videos - available at www.youtube.com/fairworkgovau - are presented by native speakers of Mandarin, Cantonese, Indonesian, Serbian, Arabic, Dari, Farsi, Khmer, Korean, Spanish, Vietnamese, Thai and Turkish.

Decision: Fair Work Ombudsman v Orwill Pty Ltd external-icon.png (PDF 1.7MB)

Follow the Fair Work Ombudsman on Twitter @fairwork_gov_au external-icon.png.

Media inquiries:

Ryan Pedler, Senior Adviser, Media & Stakeholder Relations
(03) 9954 2561, 0411 430 902
ryan.pedler@fwo.gov.au

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