Migrant worker secures almost $400,000 backpay for him and co-workers

Court finds violations affected at least 30 employees

Migrant worker secures almost $400,000 backpay for him and co-workers

The federal court dealt with alleged breaches of the Fair Work Act which was committed by an employer that underpaid its migrant workers. The alleged misconduct was discovered after a sole worker contacted the Fair Work Ombudsman and said that their pay “didn’t feel right.”

From July 1, 2017, to June 30, 2018, and at various other times, Winit, the employer, operated a warehouse in Regents Park, New South Wales. This warehouse facilitated storage and distribution services for merchants selling products on online platforms like eBay.

Song Cheng, the general manager and sole director of Winit during that period, along with Xiaodi Li, who served as Winit’s payroll and human resources manager at one point, managed the operations.

During this time, Winit engaged at least 30 workers to perform tasks at its warehouse, each subject to the regulations of the Storage Services and Wholesale Award 2010 under the Fair Work Act.

One of their migrant workers, in an originating application dated February 24, 2021, alleged Winit's breach of the Award's obligations and other FW Act obligations. Additionally, the worker alleged Cheng's involvement in some of these breaches.

Employer failed to pay award entitlements

According to records, from July 1, 2017, to June 30, 2018, the Award which covered the employees entitled them to specific rates of pay, allowances, and loadings, which Winit failed to provide.

Instead, Winit paid flat amounts per hour worked, irrespective of timing or weekly hours. This resulted in underpayments detailed in the statement of agreed facts, totaling $368,684.23.

Upon discovering the underpayments, the court found that Winit took measures to minimise potential claims. It offered affected employees written agreements to settle for substantially less than owed under the Award.

Some employees accepted these agreements, while others refused, resulting in reduced hours for the latter. This reduction amounted to adverse action, contravening the FW Act.

The court found that it was undisputed that the alleged breaches indeed occurred. Therefore, pecuniary penalties are deemed appropriate: $550,000.00 against Winit and $8,190.00 against Mr. Cheng.

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