A Victorian fruit farmer has been penalised $144,000 for deliberately underpaying two Malaysian fruit pickers, and then using false documents to try and cover it up.
Zucco Farming Pty Ltd, which operates a stone fruit farm near Swan Hill, has been penalised $120,000 and the company’s sole director and part-owner Chris Zucco has been penalised a further $24,000, by the Federal Circuit Court.
The two workers were Malaysian nationals on bridging visas and were underpaid a total of $13,529.
They were paid flat hourly rates of between $15.41 and $16.77 by Zucco Farming for all hours worked to pick fruit and perform pruning, packing and cleaning duties.
Under the Horticulture Award 2010, they should have received minimum ordinary rates, including casual loading, of $21.61 for all hours, except for public holidays when they were entitled to $38.90 per hour.
When one of the workers queried Mr Zucco as to why their pay slips listed a rate of $21 an hour and asked to be paid lawful rates, Mr Zucco replied, “I am not paying you $21… I do that just for my bookwork.”
Mr Zucco and his company also breached workplace laws by knowingly providing false and misleading records to Fair Work inspectors.
The paperwork suggested that the two employees worked less hours than they actually did, and overstated how much they were paid.
‘Serious exploitation of employees’
In court, Judge Anthony Kelly said that Mr Zucco and Zucco Farming had “made deliberate and conscious decisions to underpay the employees” and had “persistently attempted to deceive the FWO”.
“They deliberately sought to mislead the FWO, both before and after the proceeding had commenced,” Judge Kelly said.
“The nature of the contraventions and the circumstances in which they were committed are significant as evidencing the serious exploitation of employees and a deliberate falsification of records,” Judge Kelly said.
Judge Kelly said that making declarations of contraventions would “provide due warning” of the consequences for such conduct.
“I accept that it is necessary that the penalty imposed reflects the strong need for general deterrence in circumstances where employers may be tempted to prey on the vulnerability of employees, whether by reason of their migratory status or lack of knowledge of their legal entitlements,” Judge Kelly said.
Penalties not enough
Industrial relations advocate Miles Heffernan said the case is more evidence of the need for criminal penalties for rogue employees who steal wages from their workers.
“If these two workers had stolen $13,000 from the company safe, they would be charged with a crime and face a court and criminal penalties – why are the rules different for bosses who steal from their workers?” Mr Heffernan asked.
“You can impose all the monetary penalties in the world, but they are not working, because wage theft continues to be rife in many industries in this country, including the fruit and vegetable picking sector.
“Unfortunately, with the re-election of the Coalition government, it is highly unlikely that we will see any government action to effectively address this problem, because the Liberals and Nationals are terrified of upsetting the business community, which believes wage theft is the result of simple accounting mistakes made by bosses.
“Well, as this case proves, wage theft is often deliberate and systemic.
“If the government won’t consider criminal sanctions for unscrupulous employers, then they should at least increase the budget of the regulator – the Fair Work Ombudsman – so it can employ more inspectors and pay for more prosecutions – it’s the only hope hard working vulnerable workers have got.”
If you are not being paid your correct wages and entitlements, or if you are considering legal action to recover stolen wages, we can help.
Please call our team at Industrial Relations Claims today on
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