Two massage parlour workers who were sacked after starting a relationship have been awarded almost $40,000 compensation, after the Fair Work Commission found they had been unfairly dismissed.
In addition, the former owner and former supervisor of the Canberra Foot and Thai massage parlour are now facing up to a year in prison over allegations that they gave false and misleading evidence to the Commission.
Delo Be Isugan was one of a number of workers from the Philippines working at Canberra Foot & Thai on 457 skilled visas.
The workers were transported to and from the massage parlour in a van each working day and were provided with accommodation at a house where the gates were locked overnight to stop them from leaving.
It is alleged that the then owner Colin Kenneth Elvin and manager Jun Millard Puerto underpaid the workers almost $1 million dollars and threatened to have their families in the Philippines killed if they complained about their working conditions
The relationship and escape plan
In 2015, Ms Isugan started a secret relationship with Bart Durado, a handyman at the business.
Late on the night of Sunday October 26, she ran away from the house where she lived with the other workers after she got word that Mr Elvin had found out about the relationship, and was planning to sack her and put her on a plane back to the Philippines.
Mr Elvin had previously told staff they were banned from having relationships in Australia, and, on the day in question, had been interviewing other staff about the relationship between the pair.
Mr Durado told the Commission that Mr Elvin and Mr Puerto had told Ms Isugan that she would be sent back to the Philippines – so the couple came up with the escape plan.
The day after Ms Isugan ran away from the house with Mr Durado’s help, Mr Durado was fired from his job.
Even though Ms Isugan left her employment, the Commission found that she had been “constructively dismissed,” because she was forced to leave her job as a result of the actions of her employer – in this case because Mr Elvin intended to send her back to the Philippines.
Deputy president John Kovacic said Ms Isugan’s dismissal was “harsh, unjust and unreasonable” and Mr Durado’s dismissal was “unjust and unreasonable”.
The Fair Work Commission found Ms Isugan was owed $29,228 and Mr Durado $8,000.
Greater protections needed for overseas workers
Ms Isugan and Mr Durado told The Canberra Times that they were relieved at the outcome.
“We are just pleased at the outcome, that justice has been done at last,” Mr Durado said.
Ms Isugan now has a new job at another massage parlour in Canberra, but said that she still feels afraid after her experience at Foot and Thai.
United Voice ACT secretary Lyndal Ryan said the government needed to do more to protect vulnerable overseas workers.
“There’s different versions of it happening everywhere where there’s sponsored visas or people on student visas but unsure of their rights,” she said.
“People are wanting to keep their heads down, they’re fearing what will happen.”
Employers cannot cancel a worker’s visa
Leading industrial advocate Miles Heffernan from Industrial Relations Claims said employers cannot cancel a person’s temporary visa.
“The only people who can cancel someone’s visa is the Department of Home Affairs, but unfortunately many overseas workers don’t know this, and don’t know their workplace rights, so that makes them particularly vulnerable to exploitation,” he said.
Recently, the Fair Work Ombudsman announced that it had made an agreement with the Department of Home Affairs to ensure that overseas workers who come forward to make complaints about underpayments will not have their visas cancelled.
“Hopefully this new agreement will give workers on temporary visas the confidence to come forward and seek assistance if they are being exploited by rogue employers,” Mr Heffernan said.
Mr Elvin and Mr Puerto are now being investigated for giving false and misleading evidence to the Fair Work Commission.
They face up to one year in prison.
In addition, the pair is also due in the Federal Court in October over underpayment allegations and the threats made to the other workers from Thai Foot and Massage.