The penalties were imposed after Green Clean, and the former manager admitted breaching workplace laws by underpaying two Nepali casual cleaners and failing to issue pay slips and were found to have knowingly or recklessly produced false or misleading documents to a Fair Work inspector.
The workers, both international students at the time, were underpaid between March and June 2019 after Green Clean deliberately misclassified them as independent contractors.
It is the second time the Fair Work Ombudsman (FWO) has ordered penalties against Green Clean.
In 2016, the FWO obtained a penalty of $9,450 against Green Clean for failing to comply with a Compliance Notice requiring the company to back-pay two Filipino international students it had employed.
The FWO says it launched an investigation after receiving a request for assistance from the affected Nepali workers.
Source: Supplied / Public Domain/Supplied
During the investigation, the inspectors also allegedly found that Green Clean had failed to pay the workers amounts due to them within seven days of termination.
FWO says the international students were also not paid superannuation.
During the investigation, a Fair Work inspector issued Green Clean a Notice to Produce that required the company to provide specified records or documents, including documents relating to terms of engagement.
On behalf of Green Clean, the former manager provided the inspector with emails purportedly sent to the two affected workers in March and April 2019.
Representative image of two cleaners cleaning windows of a highrise building. (David Davies/PA Wire) Source: Press Association
Green Clean and the former manager subsequently admitted that the two emails were not sent to the workers on those dates or at all during March or April 2019.
The Court found that the underpayment contraventions related to Green Clean’s purported engagement of the workers “as independent contractors when they were, in reality, casual employees and covered by the Cleaning Services Award and the respondents knew this.”
Judge Brana Obradovic found that the breaches were serious in light of the vulnerability of international students who were “unlikely to be aware of minimum Australian labour standards.”
'Not the first time Green Clean has underpaid workers': Judge
In imposing the penalties, Judge Obradovic also found this was “not the first time” that Green Clean had underpaid its employees on student visas and that there was a need to deter it and others from breaches that “undermine the workplace relations system, and its enforcement, as a whole.”
“It is vital for the purposes of the Fair Work Act that the public is left in no doubt as to there being obligations to afford employees their minimum entitlements and to cooperate with statutory notices issued by FWO, such as a Notice to Produce,” the judge said.
A Notice to Produce seeks to allow the FWO to have enough information to properly investigate and ensure that employees are provided with their minimum entitlements. Where a person provides false or misleading information in response to a Notice to Produce, it undermines the Fair Work Act’s enforcement framework and the very purpose of the Fair Work Act.Judge Brana Obradovic
FWO says it sent a contravention letter to Green Clean, which, after receiving it, rectified the underpayments in February 2020.
In a statement, the Ombudsman says in the last five full financial years, it has filed 126 litigations involving visa-holder workers and secured more than $13.4 million in court-ordered penalties in visa-holder litigations.
Fair Work Ombudsman, Sandra Parker, told SBS Nepali that those employers who repeatedly breached workplace laws would face significant consequences.
“Employers need to be aware that protecting vulnerable workers, like visa holders, is an enduring priority for the FWO. It is disappointing that we have again had to take court action and secure penalties against this company for underpaying international students,” Ms Parker said.
Deliberately providing false or misleading documents to inspectors is also a serious breach of the Fair Work Act and will not be tolerated. Any employees with concerns about their pay or entitlements should contact us for free advice and assistance.Fair Work Ombudsman Sandra Parker
Fair Work Ombudsman, Sandra Parker, says employers that repeatedly breach workplace laws will face significant consequences. (Photo: FWO)
Employers and employees can visit www.fairwork.gov.au or call the Fair Work Infoline on 13 13 94 for free advice and assistance about their rights and obligations in the workplace.
An interpreter service is available on 13 14 50.
