Industrial relations advocate Miles Heffernan from WAGETHEFT.net.au has criticised the Fair Work Ombudsman’s decision not to commence litigation against a Melbourne supermarket operator who underpaid three workers by almost $75,000.
Rather than taking Ying “Alex” Zhang and his company Oriental Food Australia Pty Ltd to court, the workplace watchdog has entered into an agreement called an Enforceable Undertaking.
The terms of the Enforceable Undertaking
Under the terms of the agreement, Zhang will pay back the workers, make a donation to a local legal service, and agree to change his workplace practices to ensure the underpayments don’t happen again.
“These Enforceable Undertakings are an absolute joke,” Mr Heffernan said.
“This employer has stolen $75,000 from his workers – he should be taken to court and face hefty penalties – instead he walks away with a slap on the wrist – no wonder wage theft is rife is this country.”
Workers were on student working visas
The three workers who were ripped off were from China and were in Australia on student working visas, and were employed at two Crown Asian Supermarkets in the Melbourne CBD.
Fair Work inspectors found they had been paid below the legal minimum hourly rates, resulting in underpayments of the ordinary hourly rate and weekend and public holiday penalty rates.
Mr Zhang and his company also breached workplace laws by failing to pay the employees a clothing allowance, failing to provide rest and meal breaks, and failing to provide the workers with a Fair Work Information Statement when they commenced employment.
Ombudsman defends Enforceable Undertakings
Fair Work Ombudsman Sandra Parker said the Enforceable Undertaking requires the company to overhaul workplace practices across all of its supermarket stores.
“Enforceable Undertakings such as this one require major improvements from employers, which creates sustainable compliance improvements that benefit current and future employees,” Ms Parker said.
Ms Parker said Oriental Food Australia had narrowly avoided litigation by promptly back paying the workers in full, agreeing to make a significant donation to the Job Watch Employment Rights Legal Centre and committing to a number of measures aimed at ensuring future compliance across all stores owned by Mr Zhang.
“Every worker in Australia has the same workplace rights, regardless of their citizenship or visa status, and paying migrant workers a ‘market rate’ that undercuts the applicable minimum Award rates is unlawful and unacceptable,” Ms Parker said.
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