The Workplace Ombudsman found no evidence to substantiate allegations made from the Australian Workers Union that up to 16 workers had not received their full entitlement.

The investigation, initiated following complaints from the workers’ union, found that the workers all held 456 Australian short-stay visas, which do not attract a minimum wage.

Further, the workers were employed by foreign entities in a labour hire arrangement with McDermott’s.

Workplace inspectors boarded McDermott’s barge – the DB30 – in April 2008 and found up to 16 workers from Indonesia, Malaysia, India and the Philippines working 12-hour shifts on a 60-days on/30-days off roster.

They were being paid between US$3.50 (approx AUD$4.20) and US$8.51 (approx AUD$10.20) an hour under employment contracts constructed in their country of origin. All held subclass 456 Australian short-stay visas issued by the Department of Immigration and Citizenship (DIAC).

Workplace Ombudsman Executive Director Michael Campbell says that, as a consequence, the Workplace Relations Act’s minimum wage rules did not apply to these workers.

The current Federal Minimum Wage is AUD$13.74 per hour.

Workplace inspectors travelled to Karratha again on July 2 this year after additional underpayment complaints that up to 90 foreign workers undertook “de-mobbing” work on the DB30 in preparation for its departure, but the barge had already departed.

“Our investigation determined that because of the nature of the employment and visa arrangements of the foreign workers, we were unable to enforce a minimum Australian wage for these workers,” Mr Campbell said.

The Workplace Ombudsman sought external legal advice from a specialist Senior Counsel which states that when the gas pipeline being laid by the DB30 touched the seabed, workers aboard the barge would be considered to be within the Migration Zone, and therefore require a 457 visa – rather than a 456 visa.

Mr Campbell said foreign workers issued 457 visas were subject to the WR Act and, in the McDermott’s case, his office would have had the power to further pursue matters that fell within the scope of the legislation, including a minimum wage, had such visas been required.

A copy of the Workplace Ombudsman’s legal advice has been given to DIAC.

Mr Campbell said that he was confident that the Workplace Inspectors had conducted a thorough investigation.

“It is a proper and legitimate exercise of power for Workplace Inspectors, in the course of an investigation, to first establish whether they have jurisdiction to enforce federal workplace relations laws. It would be unacceptable if our inspectors merely accepted the advice of one or other of the parties on this important issue without first making all necessary inquiries, speaking to people and witnesses, getting advice and forming a view themselves,” he said. #

The Workplace Ombudsman says the treatment of one male and two female 457 visa-holders was nothing short of shabby.

“There were times when these vulnerable workers did not have enough money to put food on the table,” Workplace Ombudsman Executive Director Michael Campbell revealed.

Mr Campbell says the migrant workers were treated unconscionably by a Sydney-based labour hire agency, which deliberately underpaid them more than $15,000.

“When they asked about their wages, they were fobbed off with false promises and threats,” he said.

Mr Campbell said the case highlighted a serious dereliction of duty by Healthcare Recruiting Australia and its sole director Michelle Lloyd.

Lloyd and her company have been fined a total of $48,000 in the Federal Magistrate’s Court for four breaches of the Workplace Relations Act.

Mr Campbell says the company withheld the workers’ entitlements for more than a year after workplace inspectors identified the underpayments.

He says the company unlawfully deducted significant sums of money from their wages for training that was never provided, for rent, agency fees and airfares.

“The workers have told how there were times when they were living on the charity of others and felt ashamed they could not pay their rent,” he said.

“They were upset and frustrated and their treatment was obviously a very difficult time both financially and emotionally.”

HRA placed the three workers at two Sydney nursing/aged care facilities in 2005 and 2006 where they provided residents with personal care and assisted them with showering, dressing and eating.

However, Mr Campbell says HRA failed to pay full wages, casual loadings, penalty rates and holiday pay and made unlawful deductions without the workers’ consent.

He described the case as very serious and said the court penalty should serve as a warning to other recruitment companies bringing in migrant workers.

The Philippine Consulate General in Sydney welcomed the ruling of the Federal Magistrate’s Court.

Consul General Maria Theresa Lazaro said: “We are pleased with the outcome of the case and we are very appreciative of the efforts and the assistance extended by the Workplace Ombudsman to the affected Filipino nurses.”

The Workplace Ombudsman has investigated more than 400 matters relating to 457 visa-holders over the past two years, recovering more than $1.3 million in underpayments for overseas workers. / Workplace Ombudsman
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