The Fair Work Ombudsman has secured penalties totalling $41,580 against the operators of the Elizabeth Cottage respite and care facility in Peakhurst, Sydney, for deliberately underpaying two disability support workers just under $85,000.
The Federal Circuit Court fined Lovely Care Pty Ltd $36,000 and its director, secretary and shareholder Elizabeth Bonilla $5,580 for her involvement in Lovely Care’s underpayment of the workers.
The employees, a man from Egypt and a woman from China, were recent migrants to Australia at the time they were underpaid.
They were paid flat rates of $200 to $312 for shifts of at least 15 hours.
According to the Fair Work Ombudsman, these amounts were insufficient to cover the employees’ minimum hourly rates, casual loadings and a sleepover allowance under the Social and Community Services Employees (State) Award and the Social, Community, Home Care and Disability Services Industry Award 2010.
One employee was underpaid $54,115 and the other was underpaid $30,335.
“Migrant workers are some of the most vulnerable to underpayments in the community as they often have a limited understanding of workplace laws. Unfortunately, some employers take advantage of this by paying them unlawfully low rates,” Fair Work Ombudsman Sandra Parker said.
“This judgment should serve as a warning to employers who would exploit migrant workers that they will get caught and face significant consequences for their actions.”
The Fair Work Ombudsman discovered the alleged underpayments when it investigated complaints lodged by the employees.
The FWO commenced legal proceeding in 2013 against Lovely Care and Ms Bonilla, alleging both breached the Workplace Relations Act 1996 (Cth), the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and the Fair Work Act 2009.
In November 2015, Lovely Care, shortly before a trial was due to commence, admitted all the alleged contraventions and rectified the underpayments with interest. However, Ms Bonilla denied involvement in the contraventions.
In January 2019, the Federal Circuit Court found Ms Bonilla was involved in some of the contraventions, including that she had knowledge of the employees’ casual employment, the hours they worked and Lovely Care’s failure to pay the full minimum ordinary time entitlements, casual loadings and other allowances.