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  • HR Heartbeat: Underpaid migrant workers, mental health, and...

HR Heartbeat: Underpaid migrant workers, mental health, and...

This week’s HR Heartbeat gets into the weeds of the protections for migrant workers in Australia, updates to the CFMMEU, and an unfair dismissal case rooted in bullying.

First published on Friday, Oct 20, 2023

Last updated on Friday, Oct 20, 2023

7 min read

Have you heard the latest news?

Everything you need to know about the latest trends impacting employers all over Australia. Keep up to date with the HR Heartbeat.

Let’s get into the headlines.

“Obnoxious conduct” against migrant workers

In the 6 financial years leading up to June 2023, the Fair Work Ombudsman (FWO) filed 138 litigations involving visa-holding workers. The litigations have led to $15 million in court-ordered penalties.

The latest company added to the list is a Sydney-based business that was found to have been deliberately and systematically underpaying almost 400 of their migrant employees from 2014 to 2019. With the underpayments adding up to over $3.6 million.

Federal Court penalties amounted to a total of $558,190 against both the company and its sole director.

The Ombudsman’s litigation focused on a sample of 30 migrant employees who were unpaid under the Services and Wholesale Award 2010. Three of the underpayment contraventions fell under the definition of serious contraventions under Protecting Vulnerable Workers laws, which hold maximum penalties that are tenfold the generally applicable penalties.

The 30 underpaid employees involved in FWO’s legal action:

  • Were all young, working holiday visa holders
  • Regularly worked up to 60 to 70 hours per week over six or seven days
  • Were mostly paid a flat hourly rate of $24.41 with no penalty or overtime entitlements owed under their Award
  • The company failed to comply with laws relating to their pay slips
  • Didn’t receive a Fair Work Information Statement from their employer
  • Didn’t receive a variety of other Award obligations including meal allowances and frequency of pay

The company has now backpaid these 30 employees in full.

In case it isn’t clear, the Court is sending a clear message with this case. “The court must exact a heavy toll: not merely to ensure that Winit is brought to account for its obnoxious conduct; but also to serve as a warning to other employers who might be minded to ignore their own important Award and statutory obligations...,” Justice Snaden said.

While FWO Anna Booth said, “All workers in Australia have the same rights, regardless of nationality and visa status.”

Make sure you’re meeting your award obligations and stay on the right side of the law with 24/7 employment relations advice from BrightAdvice.

October is mental health month

And the Australian Bureau of Statistics (ABS) is right on theme with its release of its National Study of Mental Health and Wellbeing results.

  • Over 2 in 5 people aged 16-85 years had experienced a mental disorder at some point in their lives
  • Over 1 in 5 had experienced symptoms of a diagnosable mental disorder in the 12 months

The figures match the 2022 report from the Australian Government Treasury on diagnosable mental health conditions among small business owners.

Whether you’re a sole trader an employer or a small business owner starting out, here’s a reminder that taking care of you and your employees’ mental health are your most valuable assets.

CFMMEU dropping an M?

Yup, the Mining and Energy Union (MEU) has moved to formalise their withdrawal from the CFMMEU and become a standalone union.

The CFMMEU will soon be known as CFMEU (Construction Forestry Maritime Employees Union)

This move was first endorsed in early 2021, and members voted on it between May and June 2023. 95% of voters agreed that the MEU should be separated in a proposed change to take effect from 1 December 2023.

Other than the new name, nothing much will change for the approximately 20,000 CFMMEU members who fall under the Mining and Energy Division. Memberships are also set to automatically transfer across.

Bully’s plan backfires

Unfair dismissal is a dish best served hot, and that’s exactly what this restaurant owner in Queensland learnt thanks to the Fair Work Commission (FWC).

It all started when the former employee lodged an application for an order to stop bullying in response to the conduct of the restaurant’s Business Manager. Who also just happened to be the owner’s de facto partner.

Unfortunately, the owner decided to turn up the heat by targeting the employee in a survey.

Unconventional? We think so. But basically, the survey sent out to the restaurant’s employees requested information about whether the former employee had ever been observed engaging in sexual harassment and name-calling. 7 of the 8 employees responded saying they had either observed, or been subjected to these behaviours.

The restaurant owner then immediately terminated the employee with no notice.

But that wasn’t the end of the matter. The FWC noticed that:

  • All the survey responses were worded similarly
  • Additional statements from the respondents yielded inconsistent results
  • And the owner had some degree of control over them all through either familial ties or because the employees relied on the owner for accommodation and visa maintenance—making them unreliable

The Commission ruled that the employer had no way of forming a reasonable belief about the sexual harassment allegations since they undertook no further investigation following the initial survey, and didn’t have a conversation with the employee prior to termination. Making this case, an unfair dismissal.

That wraps up this edition of HR Heartbeat. Stay tuned for more headlines and all the latest updates that will keep you in the know with all the major employment changes coming your way.

If you’ve got questions about the top HR headlines from this week, ask BrightLightning:

What are the changes to migrant worker protections as a result of the Protecting Worker Entitlement amendments to the Fair Work Act?

Breaches of the Migration Act 1958 do not affect the validity of employment contracts or contracts for services for the purposes of the Fair Work Act.

This means migrant workers will be entitled to the protections of the Fair Work Act, (i.e., claims unfair dismissal or general protection) even where the individual may be in breach of their visa conditions.

Can I stop employees from joining a union?

All employees (and independent contractors) are free to choose to join or not join a union. This is also known as freedom of association. It's illegal for a person to pressure another person about their choice to join or not join a union. It’s also illegal for an employer to take or threaten to take adverse action against a person for being or not being a union member, taking part or not taking part in industrial activity, or choosing to be represented, or not to be represented, by a union.

Is intimidation bullying?

A repeated behaviour that creates a risk to health and safety is likely to constitute bullying. Depending on the nature and context of the conduct, bullying behaviours can include intimidation.

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