Mr Ram, a functionally illiterate Indian national with poor English speaking skills, has been awarded nearly $200,000 after the Federal Circuit Court [FCC] in Ram v D&D Indian Fine Food Pty Ltd & Anor [2015] FCCA 389 found he had been trafficked from India and forced to work in "conditions akin to slavery".

BACKGROUND

Through a mutual acquaintance, Mr Ram was approached by Mr Trivedi, the director of the Mand's Indian restaurant, to work in Australia as a cook at Mr Trivedi's restaurant. Mr Ram, who lived in very modest circumstances in India, and who had a wife and two children to provide for, accepted the offer of employment. Subsequently Mr Ram was brought to Australia on a 457 skilled worker visa.

Upon Mr Ram's arrival in Australia, Mr Trivedi took possession of his passport and informed him that he could not leave the country unless he repaid the $7,000 cost of bringing him to Australia.

Mr Ram was effectively held as a slave, working 12 hours a day seven days a week, living, eating, working and sleeping in the kitchen of the restaurant. He was not paid for his work and only had one day off in 16 months.

Mr Ram, with the help of a fellow employee, finally managed to escape and alert the Australian Federal Police [AFP]. The AFP charged Mr Trivedi with human trafficking offences to which Mr Trivedi pleaded guilty. Following the criminal charges, Mr Ram filed a claim in the FCC.

SUBMISSIONS

Mr Ram claimed his employers breached the Industrial Relations Act 1996 (NSW) and the Restaurants, etc, Employees (State) Award (Award) resulting in underpayment of wages.

Mr Trivedi claimed Mr Ram fabricated his evidence as a means of gaining permanent residency in Australia.

DECISION

The Court found the employers "built a façade upon sham documents, to deceive the Department of Immigration and the ATO and attempted to deceive this Court, in an effort to create the illusion that there was an employment arrangement in accordance with Australian law."

The Court found that there had been "a grotesque abuse of the 457 visa programme [and that the] obvious purpose of Mr Ram being trafficked to Australia under the visa programme was for his exploitation in breach of Australian law."

The Court held that Mr Ram was covered by the Restaurants Employees (State) Award and that the employers breached this award and the contract of employment in relation to ordinary hours of work, overtime, Saturdays and Sundays, public holidays and annual leave loading.

The Court ordered Mr Trivedi and his restaurant pay Mr Ram $125,431.22 in underpayments plus $57,408.97 in interest.

IMPORTANCE

While this is a most extreme case it does highlight the fact employers need to be aware of, and comply with, relevant award rates and conditions or risk significant monetary penalties being imposed against them.

To read the case in full click here.