18 September 2024

The Fair Work Ombudsman has secured more than $100,000 in penalties and back-pay orders in court against the operators of a supermarket in Darwin for breaches affecting a migrant worker.

The Federal Circuit and Family Court has imposed a $39,960 penalty against Om Shiva Foods Pty Ltd, trading as Wulagi Supermarket, and a $7,992 penalty against the company’s sole director Vinay Madasu.

The penalties were imposed in response to Om Shiva Foods failing to comply with a Compliance Notice requiring it to calculate and back-pay entitlements owing to a casual retail assistant it employed between February 2020 and August 2021, and for failing to issue the worker pay slips.

The worker was an Indian national in Australia on a temporary graduate visa at the time.

Mr Madasu was involved in the contraventions.

In addition to imposing the penalties, the Court has ordered Om Shiva Foods to fully rectify the $68,970 underpayment of the employee. The underpayment has been only partially rectified to date.

Fair Work Ombudsman Anna Booth said business operators that fail to act on Compliance Notices need to be aware they can face penalties in court on top of having to back-pay workers.

“When Compliance Notices are not followed, we will continue to take legal action to protect employees. Employers who fail to act on these notices risk substantial penalties and back-pay orders,” Ms Booth said.

“The underpayment of the worker in this case was significant – more than $68,000 across 18 months – and it is disappointing that we have had to litigate to secure orders for the full back-pay.

“Employers should be aware that taking action to protect migrant workers is among our top priorities. Any employees with concerns about their pay or entitlements should contact us for free advice and assistance.”

The FWO investigated after receiving a request for assistance from the affected worker.

A Fair Work Inspector issued a Compliance Notice to Om Shiva Foods in October 2022 after forming a belief that the worker had been underpaid minimum wages, and penalty and overtime rates for working weekends and public holidays, owed under the General Retail Industry Awards 2010 and 2020.

Judge Anastasis Liveris said he considered “the circumstances of this matter to be serious” and found that there was a need for penalties to deter Om Shiva Foods, Mr Madasu and other employers from similar conduct in future.

“In my view there is a need for general deterrence and a need to ensure that there is compliance with minimum standards by the provision of an effective means for investigation and enforcement of employee entitlements and loss,” Judge Liveris said.

“There is a need for small businesses in the supermarket and grocery industry to appreciate the seriousness of their obligations to comply with compliance notices and their record keeping obligations.”

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. Employees can also seek information from their employer or their union, if they are a member.

The FWO also has resources on our website for visa holder workers.

The FWO provides a free online course to help employers understand what a Compliance Notice is and how to respond if they get one. The Compliance Notice course, among a suite of free interactive courses on offer for employers, managers and employees, is available in our online learning centre.

Small businesses can find targeted resources at the Small Business Showcase.