Fighting migrant worker wage theft

In a job paying less than $25 an hour, an employer has to work really hard to underpay an employee $50,000 in just 18 months.

Our client, Lao, had migrated to Australia six years ago. He did not speak English well, and had no real idea about his employment rights under Australian law.  Lao had found a job as a process worker in a factory in western Sydney. He could not read the contract that he signed, and it was not translated for him. 

Lao had signed himself up to a job which described him as a casual employee, even though he worked 7 days a week. He averaged 67 hours a week, and sometimes worked up to 82 hours. He typically started at 5.00am, although this often changed in overnight texts from his supervisor.

The employer told Lao that the pay arrangement was a payslip which showed 38 hours each week paid at Award rates with tax deductions, and an extra $17 paid cash in hand for each additional hour over that.  Lao got no sick leave or annual leave. Lao worked public holidays, excessive overtime and weekends, but never received any penalty rates or overtime pay.

We brought an unpaid wages claim in Court, which the employer strongly resisted.  The company repeatedly refused to produce any employee records setting out the hours worked by Lao, and relied simply on the payslips as proof. Those payslips clearly were inaccurate, and told the completely implausible story of a casual worker who was paid for precisely 38 hours a week, every week, Monday to Friday, for 18 months, never working a minute less or a minute more, never taking a day off, never working a weekend or a single hour which qualified for a penalty rate.

Lao faced all sorts of opposition to his claim from the employer, who argued all the way up to the day before hearing that the payslips were accurate and that the few timesheets which Lao had photographed when he was at work were “of indeterminate provenance and veracity”. As we say, that argument only lasted until the day before hearing, when the employer crumbled and paid Lao everything that he was seeking.

This was a case of significant exploitation, where the employer relied on our client’s ignorance of his basic rights in order to con him into working cash in hand for sometimes up to one-third of the relevant Award rate of pay.