12 cases of underpaid, exploited workers finalised in SA Employment Tribunal in 2020

The assault of an allegedly underpaid Adelaide retail worker has thrown wage theft into the spotlight. It’s not a problem limited to one area.

Last week, a crowd of people rallied several times outside an Adelaide CBD bubble tea business, over allegations of underpayment after a video of a worker being assaulted went viral.

The video struck a chord, prompting the rallies and provoking anger within communities where underpayment is sometimes rampant.

But wage theft, underpayment and, in some cases, non-payment are not isolated to Chinatown or the hospitality industry.

The Advertiser has reviewed 12 cases finalised before the SA Employment Tribunal last year to examine the problems affecting South Australia’s work force.

The tribunal has the power to hand down massive fines to individuals and businesses as well as ordering the payment of unpaid wages, superannuation and loading to workers.

Last year the tribunal handed down or upheld penalties of as much as $150,000 for businesses who underpaid employees, refused to provide them pay slips, did not pay leave loading or superannuation and under-classified their workers.

Labour law expert Professor Andrew Stewart said the tribunal dealt with some of the most contested matters but far more were dealt with out of court.

“What you are looking at with the tribunal is a subset of all the cases bought against South Australian employers,” he said.

“The overwhelming number of complaints and cases for underpayment do not end up before the courts.

“What you see in the tribunal is only the tip of the iceberg. The FWO in particular resolves a lot of matters without ever having to go to court, you can’t just look at the tribunal and see the whole of the system, you are seeing a limited part.”

Professor Stewart said the system for workers seeking compensation could be easier.

“I don’t think it is as simple as it could be, that is why I think the Fair Work Commission needs to be involved,” he said.

“It has a well-established system to help people through the process. I prefer the idea of a process which starts with a triage of the case and can then make referrals.

“It is not an ideal system, it could be made a lot easier, but the Constitution gets in the way and the division of state and federal power gets in the way.”

Alphabond Pty Ltd trading as Pasta Deli and Frank Taddeo

$48,627 in back pay for worker, penalty for company of $75,000 and penalty for Taddeo as an individual of $25,400.

Worker was employed as a cook for Alphabond, which trades as Pasta Deli with outlets in Burnside and Norwood and a restaurant at Glynde. Taddeo contended he was not a director of the company, which was accepted by the tribunal, however he was held to have been involved in the employment of the worker and was “fully aware that the (worker) was not being paid his entitlements”. The worker was paid a flat $120 a day, regardless of whether he worked overtime or through breaks. The worker successfully argued he had not been paid shift loading, meal breaks and superannuation. He also argued he was working at a higher grade and had been denied leave loading and the correct calculation of the hours he worked.

We4Us Pty Ltd, Masudur Rahman and Tanvir Ahmed

Underpayment of $22,450 awarded. Penalty on business $43,000, penalty on each director $27,500.

The worker was employed to install cable as part of the NBN roll-out. However he was paid as a contractor and on some occasions did not receive any payment or only partial reimbursement for buying his own tools. The tribunal was posed with the question of whether the worker was an employee or a contractor. After a trial before the tribunal, deputy president Magistrate Stuart Cole found the worker was a full-time employee because he was seen to be representing the company and not himself. Because of that classification the worker was entitled to superannuation and annual leave. The tribunal held the company and its directors breached fair work legislation by misrepresenting to the worker that he was a contractor and had to pay his own superannuation and for his own expenses.

Urban Electric (SA) and Matthew Maio

Two workers underpaid $15,107 and $5980. Maio fined $70,000 for “serious contraventions”.

A prosecution brought by the Communications, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union. The tribunal found both an apprentice electrician aged only 15 when the underpayment started, and a full-time electrician had been underpaid thousands of dollars. The employer also failed to pay travel allowances, superannuation and overtime. The employer transferred only $25 and $10 when the teenage worker said he could not afford the petrol to get to and from work. The tribunal held Maio had used “devious tactics” to avoid paying his staff and had a “contemptuous” disregard for his worker’s welfare.

John Pavlis trading as Blackwood Fitness

$31,500 in unpaid wages, annual leave and superannuation as well as interest. Penalty of $25,000 also ordered.

Supplied Editorial Blackwood Fitness owner John Pavlis

The worker was employed at Pavlis’ gym, rising as high as membership manager and then general manager. He worked for the company between September 2016 until June 2018. Various business names appeared on the worker’s pay slips over his time at the company. The Tribunal held Pavlis had taken a “cavalier approach to his employer obligations, and to the entitlements of his employees”. Pavlis failed to keep accurate employee records or to provide any pay slips when requested by the worker.

Duo Duo Rice Noodle Pty Ltd, Jian Lin and Rose Qian

Underpayment compensation of $25,243.20 ordered. Penalty of $150,000 on the company and $40,000 each on the two directors also ordered.

The employee was awarded compensation in 2019, however in 2020 the full sitting of the Employment Tribunal refused to overturn the penalty on appeal. The worker was employed for two years at a Chinatown noodle bar, earning $10 an hour while working up to 70 hours a week. He told The Advertiser in 2019 underpayment was rife throughout Chinatown with some workers earning as little as $8. Doubts remain about whether the worker will receive any of the compensation or penalty as the owners claim they have no way of making the payment.

Shahin Enterprises Pty Ltd

Underpayment of $2663.91 ordered. Penalties of $27,000 for underpayment, $24,300 for pay break deductions despite not break being taken and $13,500 for unpaid overtime.

The worker was employed as a part-time console operator between November 2015 and December 2016 at an On The Run. He was “encouraged” to attend early for work and conduct a handover with the previous shift. The Tribunal found that the company was getting free work from its employees including the worker picking up rubbish and checking fuel levels before the shift started. The move was described as “brazen” by the Tribunal.

Supic v AXS31 Pty Ltd trading as Midnight Pharmacy

Ordered to pay $13,565 in unpaid superannuation plus interest of $1695. Penalties of $21,000 for failure to pay superannuation, $5000 for not paying the worker’s last two weeks of work, $4000 for not paying annual leave, $2000 for not paying accrued annual leave when the worker left and $250 for not paying public holiday loading.

The worker was employed as a part-time worker at the Adelaide pharmacy between February 1, 2013 and November 10, 2017. In 2018 the company was ordered to pay thousands in backpay for superannuation not provided and for annual leave. In 2020 the company was fined $32,250 for the breaches of the Fair Work Act. The worker repeatedly asked why she was not receiving superannuation. The tribunal held she would have suffered a “significant loss” if she had not taken legal action.

Accademia Di Montessori Pty Ltd and Kerry Black

One worker paid $344.47 in interest for pay being 12 months late. penalty of $3000 imposed. Second worker received $3,610.28 for unpaid wages, $484.76 for unpaid accrued leave, $423.70 for unpaid superannuation, and $375.00 interest. Penalty of $20,000 imposed.

The two workers were employed at an early-learning centre in Newtown. The centre is now closed and the Accademia Di Montessori has filed for bankruptcy in the Federal Court. With the help of the Independent Education Union, the workers pursued the company and Black, who was the effective operator at the time. The tribunal held Black had committed “serious contraventions” by failing to pay both workers when required. One of the women was a young student in Australia on a student visa. The tribunal found Black “exploited (both workers) for her own financial and business gain”.

Kerry Black in 2014 when the Accademia Di Montessori was still up and running. The early learning centre was later closed and Black penalised for not paying two workers properly.

Brebner Drive Investments Pty Ltd and Rocco Trimarchi

Ordered to pay $2928 in back pay plus $200 interest. Company fined $10,000 and Trimarchi fined $3400.

Worker was employed as a full-time head chef between May 11, 2018 and September 8, 2019. The worker was dismissed after he fell sick and was unable to attend work. Trimarchi said he thought the worker was not actually sick and refused to pay the outstanding personal leave. The tribunal held the failure to pay the leave was “blatant and opportunistic” and indicative of a refusal to co-operate in making sure the worker was properly paid.

Dasmesh Truck Transport Pty Ltd trading as Big Boss Transport and Amandeep Singh

$3727 in underpayment entitlements. Company fined $12,500 and Singh fined $8300. In a separate matter, also in 2020, a worker was underpaid $3055 for six weeks of employment and not reimbursed for fuel expense. Company fine $15,000 and Singh fined $8000.

The workers were both employed as casual truck drivers. One was not paid for the last seven days of his employment and not paid any meal breaks for shifts of more than 10 hours. The other was underpaid for his time performing a milk run. When the first driver asked for his final weeks pay cheque he was handed $500 in cash for an incident when a pallet jack fell off the back of the truck. The tribunal held that no fault could be attributed to the worker for the incident. The tribunal heard that Big Boss Transport is continuing to trade.

Brougham & Vaux Pty Ltd and Guy Thompson

Unpaid wages amounting to $2914.61 ordered. $15,700 fine for company and $3500 fine for Thompson.

The company runs a business offering financial planning services. The worker was employed initially as a reception and administration worker before her employment was terminated without warning on November 29, 2019. The worker contacted the company to try to get her entitlements but did not “receive a satisfactory response”. The worker was paid the backpay by the company within the appropriate period, but pursued penalties for breaching the Fair Work Act. The tribunal said both the company and Thompson, who was aware of some of the breaches, has been “dismissive” of the worker’s pursuit of her legal rights.

Smart Switch Electrical Pty Ltd and Paul McCarron

Unpaid wages of $7590. Company fined $14,000 and McCarron penalised $4450

The company admitted it had underpaid the worker after a case brought by the Communications, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union. The worker was not paid despite the company being given the opportunity. The worker received pay slips but did not receive any pay between April 7, 2019 and May 19, 2019. The worker was forced to resign because he was not being paid. The tribunal held there was little by way of mitigation and no way of knowing whether the failure to pay had been deliberate or accidental.