Employer penalised $153,000 for underpaying migrant

A Sydney retailer has been penalised $153,333 for underpaying a Chinese migrant, leaving her struggling to pay for food, despite having previously committed to fixing its compliance problems.

The Federal Court Circuit also ordered the company to back-pay the worker in full.

The company JPA Manchester Pty Ltd (which sells bed linen and homewares under the trading name of ‘Benson Australia’ at retail outlets in Sydney and online) was found guilty of underpaying the migrant worker $60,904 over almost four years.

The company initially claimed it had underpaid the worker less than $2000 and indicated it would contest the legal action. However, in Court JPA Manchester eventually admitted the full of the underpayment.

Moreover, the owner-operator Jia Ping Ou has also been penalised an additional $8505 for his involvement in underpaying the worker’s annual leave entitlements and contraventions of record-keeping and pay slip laws.

Judge Justin Smith found that JPA Manchester had “displayed a significant disregard for workplace law” and said the vulnerability of the worker was a matter of particular concern.

“(The worker) is 56 years old with limited ability to speak and understand English,” said Judge Smith.

“Her understanding of Australian workplace laws is also limited. Although she thought that she was being underpaid, (the worker) thought that, at her age, she would find it difficult to find alternative employment.

“These factors not only made (the worker) vulnerable to exploitation but also sharpened the impact of the contraventions on her.”

Fair Work Ombudsman inspectors first investigated the matter when the underpaid worker requested assistance after her employment was terminated.

The employee had worked as a shop assistant at the Benson Australia stores in Redfern and Miranda between January 2012 and October 2015.

Inspectors found she had been paid flat rates ranging from $9 to $19.05 per hour, resulting in her being underpaid for the ordinary hours and regular overtime work she performed.

Under the General Retail Industry Award 2010 at the time, the worker was entitled to rates of up to $18.99 for ordinary hours and up to $37.98 for overtime.

Inspectors also found that the worker was underpaid for a small amount of Saturday and public holiday work, and that her annual leave entitlements had not been paid.

Judge Smith said (the worker’s) uncontested evidence was that she struggled to pay for basic items such as food and could not afford to visit her family in China. She relied on others, including her former partner, for money and was concerned that she could not meet her mortgage obligations and might have to sell her home.

“On the other hand, JPA has, for years now, benefitted from the underpayment contraventions and has effectively shifted part of the costs burden of its business onto a vulnerable employee,” said Judge Smith.

The worker was underpaid despite JPA Manchester and Ou having publicly committed to revamping their workplace practices to ensure compliance under the terms of an Enforceable Undertaking (EU) they entered into with the Fair Work Ombudsman in 2014.