Interim figures provided by the Fair Work Ombudsman (FWO) Directorate for Migrant Strategy & Engagement show that 73% of all litigation initiated in the first nine months of the 2015-16 financial year involved visa holders.
This astonishing figure gives further context to the FWO’s Calendar 2015 report which was released earlier this year, and included the following notable data:
- The FWO received 1916 requests for assistance from visa-holders in calendar year 2015 (almost 13% of total claims)
- Of this cohort, backpackers on Working Holiday visas continued to account for the highest level of pay disputes, with subclass 457 visa holders, foreign students, recent graduates, and at least 156 ‘unspecified visa holders’ comprising the balance.
- More than $2.2 million in underpaid wages and entitlements was recovered for more than 500 visa-holders – an average of $4,317 for each claimant.
- The majority of claims originated from the accommodation and food services sector, and the agriculture, forestry and fishing, and administration and support service sectors.
- The FWO placed 24 matters before the Courts alleging underpayment of visa-holders and required 15 employers to sign Enforceable Undertakings aimed at addressing non-compliance and encouraging behavioural change.
- Fair Work inspectors issued 157 formal letters of caution to employers, 145 infringement notices (on-the-spot fines) and 39 compliance notices.
Some businesses are unaware that both the Migration Act and the Fair Work Act can extend liability for contraventions of workplace laws beyond the direct employment relationship. This means that an employer, referrer, recruiter or end-user of contracted labour can be held jointly and severally liable for the contravention. In addition, culpability can extend to Directors, HR Advisors, Managers (and beyond), under accessorial liability provisions.
In the string of cases that have followed last year’s landmark Choong Enterprises case, the Courts have signalled an increased readiness to impose heavy pecuniary penalties. It is therefore critical that best practice measures be put in place to mitigate the risk of significant civil penalties, reputational damage or even criminal charges.