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24 Jun 2022 Sham Contracting

$50,260 Worker Win!

Working Women’s Centre SA wins $33,500 in Pecuniary Penalties in the South Australian Employment Tribunal (SAET) .
Wan came to the Working Women’s Centre SA in July 2020 for legal assistance. She is a migrant worker and had been in Australia for five years at that time studying accounting.
Wan worked at Gratitude Massage as a receptionist on the weekends. She was told she needed an Australian Business Number (ABN) and that she would be an independent contractor.
She was paid $50 per day, and later $70 per day, plus a small percentage of commissions to work from 10am-7pm on Saturdays and Sundays. This equated to between $9 and $16 per hour which was well below the relevant Award rate.
The Working Women’s Centre SA assisted Wan to make an application to the SAET. Emma Johnson, Senior Industrial Officer, represented Wan at a hearing in October 2021.
It took almost two years, but in April 2022 the SAET found that Wan was a part-time employee, that she should have been paid at a Level 3 of the Health Professionals and Support Services Award 2020 and ordered the Respondent to pay $16,760 in outstanding wages, entitlements, superannuation and interest.
On 31 May 2022 the SAET further ordered that the Respondents were in breach of the Fair Work Act, for failing to pay the minimum rate of pay, failure to pay penalty rates, failure to provide breaks, failure to pay superannuation, failure to pay leave entitlements, failure to provide a Fair Work Information Statement, failure to make and keep employee records and failure to provide payslips.
The employer company was ordered to pay $22,000 in penalties and Wan’s boss was found personally liable for the breaches and ordered to pay $11,500.
The Judge found that the First and Second Respondents had exploited Wan as a vulnerable worker and that the underpayment was significant.
The total amount we recovered for Wan is $50,260.
This case is an excellent example of the work of the Working Women’s Centre and a vulnerable, migrant worker raising their rights to an employer.
Links to the decisions can be found here:
南澳职业妇女中心在南澳就业法庭赢得33,500澳元的罚款
Wan于2020年7月来到南澳职业妇女中心寻求帮助。 她是一名移民工人,已经在澳大利亚生活了5年,学习会计。
Wan在Gratitude Massage工作,担任周末前台。 她被告知她需要一个ABN,她将是一个独立承包商。 她的工资是每天50澳元,后来是每天70澳元,加上周六和周日上午10点至晚上7点工作的少量佣金。每小时相当于9至16澳元,远远低于合法标准。
南澳职业妇女中心协助Wan向南澳就业法庭提出了申请。 劳资关系专员Emma Johnson在2021年10月的听证会上代表Wan。
花了近两年时间,于2022年4月,南澳就业法庭判定Wan是一名兼职雇员,她本应被支付2020年健康专业人员和辅助服务的3级工资,法庭命令被告支付16,760澳元的拖欠工资、应享待遇、养老金和利息。
2022年5月31日,南澳就业法庭进一步判定,被告违反了《公平工作法》,因为他们没有支付最低工资,没有支付惩罚性工资,没有提供休息时间,没有支付养老金,没有支付休假权利,没有提供《公平工作信息声明》,没有记录和保存雇员记录,没有提供工资单。被告公司被命令支付22,000澳元的罚款,老板被认定对违规行为负有个人责任,被命令支付11,500澳元。
法官认为,第一和第二被告人剥削了Wan这个弱势工人,并且少付了大量款项。
我们为Wan追回的总金额为50,260澳元。
本案是展示南澳职业妇女中心工作的一个很好的例子,一个弱势的移民工人向雇主提出他们的权利。

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