AN Indian restaurant in Melbourne has been ordered to pay $72,000 for exploiting a 457 visa worker employed as a cook. The worker who had limited english had been employed on a 457 visa from May 2006 to July 2009 and was sponsored by the restaurant.

The court heard that the employer had committed 16 breaches of workplace law, these included a failure to:

• Pay basic periodic rate of pay; Pay the required overtime rates under the award;
• Pay the required accrued annual leave and annual leave loading;
• Keep employment records; and
• Provide pay slips.

Federal Magistrate Grant Riethmuller said breaches of these provisions are ‘notorious’ in the Australian workplace culture.

The company submitted that it had simply and mistakenly believed they had complied with their obligations by applying minimum annual salary conditions set out in the worker’s visas. However the Magistrate said that it was important that employers of 457 visas ‘take real care to comply with workplace laws’.

The Magistrate said ‘this was simply an exploitation of a foreign worker.’ The worker told the court that he received a weekly wage of $752 regardless of how many hours he worked and submitted some weeks he worked up to 71 hours.

The Magistrate said that ‘feature of Australian society that is particularly attractive to immigrants from around the world is the industrial law system that attempts to ensure fair wages and working conditions for employees. The [worker] in this case was more vulnerable than the average Australian worker as his visa was conditional upon his employment, and he came from a country where wages and working conditions were very poor.’

In setting the penalties, the Magistrate said that the employment agreement provided by the restaurant to the cook showed that the managers had knowledge of workplace laws and as a result he could not accept that the breaches ‘were not simply borne of confusion as to their obligations’ ‘

It was necessary to send a message to the community, and I particular to small employers, that employers must take steps to ensure correct employee entitlements are paid.’

‘It is important that employers of such workers take real care to comply with workplace laws’, the Magistrate said.

Implications for members

While conditions of employment enjoyed by those 457 visa workers in the resource industry are generous, this decision reinforces the importance of business sponsors who employ 457 visa workers the importance of complying with their obligations under the business sponsorship whilst complying with the Industrial Relations law.

Employers of 457 visa workers are obliged as part of their standard business sponsorship to ensure visa worker’s enjoy the same terms and conditions of employment as those that an Australian citizen enjoys in the same position in the workplace. To view the decision, click here.