Employer fined for underpaying 93 weeks' wages

by HRD18 Apr 2018

A migrant employee in Sydney has been underpaid the equivalent of 93 weeks’ wages over a period of almost four years.

The employee claimed that he did not take any morning tea, lunch or afternoon tea breaks and usually ate his lunch while making deliveries.

Nader Bastawrose, Amgad Samaan and Ashraf Youssef - who operate four pharmacies under the Save and Deliver brand – have each been penalised $15,000 in the Federal Circuit Court.

Judge Robert Cameron said in his judgement that the case involved significant underpayment of low-paid, vulnerable workers and that one Egyptian migrant employee had been underpaid “the equivalent of about 93 weeks’ wages”.

Judge Cameron found that Bastawrose, Samaan and Youssef were not novice employers and that there was no reason to suspect they were unaware of the applicable employment entitlements.

“The partnership was largely unconcerned with anything other than its own business needs and was largely uninterested in how those demands were affected by the requirements of industrial law,” Judge Cameron said.

The employee’s tasks between September 2009 and June 2013 included delivering medication to customers’ homes, transporting supplies between Save and Deliver pharmacies in Liverpool and Mt Druitt, and assisting with various duties in the Mt Druitt pharmacy.

He was paid flat hourly rates of between $12 and $14, but was entitled to receive between $16 and $43, depending on his shifts – resulting in a total underpayment of $62,010.

Moreover, a second employee was underpaid $5,296 while working as a pharmacy assistant at a Save and Deliver pharmacy at Shellharbour in NSW.

Pay slip and record-keeping laws were also contravened. The Fair Work Ombudsman (FWO) investigated when the employees lodged requests for assistance. The employees were back-paid only after the FWO commenced legal action.

The underpayments occurred despite the FWO having previously put Bastawrose, Samaan and Youssef on notice to pay minimum wage rates in the context of investigating three prior underpayment allegations from pharmacy workers.

The worker gave evidence that for most of his employment, he worked four days per week for 10 to 12 hours per day, often working more than 40 hours a week.

He was never paid for days he did not work, so he attended work even when he was sick to avoid losing income.

The employee stated that he often asked Youssef to increase his pay rate and Youssef always refused and told him that if he disclosed his pay rate to anyone else his employment would be terminated.

The employee said that he eventually commenced working simultaneously at another pharmacy unrelated to Save and Deliver three days per week because his pay was too low to support himself and his family. This meant he worked every day of the week and did not have any days off.

Judge Cameron found that the prior complaints to the Fair Work Ombudsman demonstrated that the partnership must have had some knowledge of employee and employer rights and obligations and “points to a degree of culpable recidivism in the contraventions”.

Acting Fair Work Ombudsman Kristen Hannah such a blatant disregard for the rights and entitlements of workers cannot be tolerated.

“A small number of unscrupulous employers still need to get the message that it is unlawful to pay overseas and migrant workers a ‘going rate’ that undercuts lawful minimum rates.”

 
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