Another day, another underpayment: 5 migrant workers exploited by a waste management business

After an extensive investigation and prosecution, the Fair Work Ombudsman (FWO) has secured significant fines and penalties from the Federal Court after five vulnerable workers working for a Victorian-based waste management facility, were underpaid almost $200,000 over 20 months.

Employed by Polytrade, these five workers were refugees from Southern Asia, speaking limited English, and had bridging and protection visas. Here we share the details of this case, and the outcome, and remind employers that visa holders have the same workplace rights as every other worker in Australia.

The details of the case

The companies Polytrade, now known as PT 349 Pty Ltd, and Polytrade Employment Services, now known as PTES 928 Pty Ltd, were one of the biggest recycling companies in the state of Victoria holding waste management contracts with several local government bodies. These companies had more than $335,000 in fines and penalties imposed against them by the Federal Court.

In the case of Polytrade, this was as an accessory to underpayment, and for Polytrade Employment Services, for directly underpaying employees as the labour provider. The owners of Polytrade, Mr Man Sang Chen and Ms Pui Shan Ho were also individually penalised with more than $36,000 in fines. The heavy penalties were imposed not only to hold Polytrade and Polytrade Employment Services accountable but to serve as a warning to other employers of the consequences of breaching award conditions and mistreating migrant workers.

Acting Fair Work Ombudsman, Kristen Hannah said blatant underpayment of visa holders in Australia is not tolerated.

The unfortunate circumstances involved employees always being paid at the same $22.00 rate. They were required to work nights, weekends, and public holidays under the Waste Management Award 2020, with the company also breaching other rules around minimum engagement periods, payment of super, record-keeping, pay slip information, and informing employees of the correct terms of their engagement with the company. It was also uncovered that employees were, in some situations, working 12-hour shifts, often for six or seven days a week.

What did the Federal Court find?

Justice Snaden described the conduct as “wantonly naïve, at best. At worst, it involved a deliberate and cavalier disregard of important award safety net obligations”. The situation was made worse given the employee’s limited knowledge of English.

While back payments have been made to the five affected employees, PTES 928 Pty Ltd has also made back payments of $2.2 million to other workers who have been underpaid since 2012.

It serves as an important reminder that employers must be aware of the relevant award entitlements and ensure that employees are paid correctly. Especially where employees are paid at loaded rates, employers must consider allowances, penalties, and loadings, and ensure that the loaded rate accounts for these too. This case is a timely reminder for businesses that exploiting migrant workers given their heightened vulnerability, especially where they are unaware of their working rights or have limited ability to speak or understand English, will result in significant penalties from the FWO.

About our author

Zaynab Aly is a Senior Workplace Relations Consultant at Citation HR. She has a particular interest in the retail industry and regularly provides advice on workplace matters to find solutions for clients.