Darwin café to face court for allegedly underpaying overseas workers

10 February 2015

Two overseas workers were underpaid more than $3000 while working at a Darwin café, the Fair Work Ombudsman alleges.

The Fair Work Ombudsman today announced it had commenced legal action against Darwin husband-and-wife Moya and Peter Buckley, who own and operate the Java Spice Café Emporium on Mitchell Street.

Also facing court is their company Java Spice Australia Pty Ltd.

It is alleged the company and Mrs Buckley were responsible for two workers on 417 working holiday visas - from Hong Kong and Taiwan - being underpaid a total of $3667 for work in February last year.

The employees, aged in their 20s, were employed on a casual basis in front-of-house roles at the Java Spice café.

The Taiwanese employee was allegedly employed for several months and was not paid any wages for two weeks of work she performed towards the end of her employment.

The second worker from Hong Kong was allegedly employed for just over three weeks, but was not paid anything for one of those weeks.

The Fair Work Ombudsman investigated the matter after receiving complaints from the two workers.

It is alleged that Mr Buckley and Java Spice Australia breached workplace laws by failing to comply with a Notice to Produce documents issued by a Fair Work inspector investigating the matter. Breaches of pay slip laws are also alleged.

Fair Work Ombudsman Natalie James says inspectors made repeated efforts to try to resolve the matter before commencing Court action, but were unable to secure sufficient co-operation.

Ms James said it was also a concern that Java Spice Australia had been the subject of five previous underpayment complaints in 2012 and 2013.

Four of the complaints were resolved through Java Spice Australia back-paying employees, including three overseas workers, and Mrs Buckley and the company were put on notice of the need to pay employees their full lawful entitlements.

The Buckleys each face maximum penalties of up to $10,200 per contravention and their company faces maximum penalties of up to $51,000 per contravention.

The Fair Work Ombudsman is also seeking a Court Order for the company to back-pay the workers in full.

The litigation comes after the Fair Work Ombudsman announced in October that it had commenced legal proceedings against a Darwin employer for allegedly paying backpackers on 417 working holiday visas less than $5 an hour.

The Fair Work Ombudsman alleges Scott Aeron Davenport, whose business trades as Scott’s Painting Service, paid three French nationals in their 20s just $450 for 13 days’ work – the equivalent to hourly rates of between $4.62 and $4.71.

A fourth worker was allegedly paid just $300 for five days’ work – an effective hourly rate of $11.54.

The Fair Work Ombudsman says they were entitled to be paid more than $22 an hour for normal hours and more than $38 an hour for weekend work. 

It is alleged the four workers were underpaid a total of $5940, with individual underpayments ranging from $451 to $1889.

In August last year, the Fair Work Ombudsman announced it would conduct a national review of the wages and conditions of overseas workers in Australia on the 417 working holiday visa.

Ms James said: “while the Fair Work Ombudsman has always had a strong focus in relation to visa-holders, we now give these vulnerable employees priority through our Overseas Workers’ Team - and have invested significant resources in compliance and litigation activities.” 

The Director of the Fair Work Ombudsman’s Overseas Workers’ Team, Ms Carey Trundle, recently met key stakeholders in Cairns, Darwin and Alice Springs to gain intelligence as part of the 417 review.

Employers and employees seeking assistance can visit www.fairwork.gov.au or contact the Fair Work Infoline on 13 13 94.

Information to assist people from culturally and linguistically diverse backgrounds has been translated into 27 languages. Overseas workers can call 13 14 50 if they need interpreter services.

The Fair Work Ombudsman has fact sheets tailored to overseas workers and international students on its website.

The Agency has also produced videos in 14 languages and posted them on YouTube to assist overseas workers understand their workplace rights in Australia.

The Fair Work Ombudsman supports compliant, productive and inclusive Australian workplaces.

Follow Fair Work Ombudsman Natalie James on Twitter @NatJamesFWO external-icon.png, the Fair Work Ombudsman @fairwork_gov_au External link icon or find us on Facebook www.facebook.com/fairwork.gov.au External link icon.

Media inquiries:

Ryan Pedler, Assistant Media Director
Mobile: 0411 430 902
ryan.pedler@fwo.gov.au

Media inquiries:

Tom McPherson, Media Adviser
Mobile: 0439 835 855
tom.mcpherson@fwo.gov.au

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