Judge slams pleas of cultural ignorance

A federal judge has criticised employers from culturally and linguistically diverse backgrounds who get caught ripping off workers but then try to claim ignorance.

A federal judge has criticised employers from culturally and linguistically diverse backgrounds who get caught ripping off workers but then try to claim ignorance of the law or foreign cultural norms to reduce penalties for wage theft.

Federal Circuit Court judge John O’Sullivan imposed penalties totalling $277,000 against the operators of two Hello Juice outlets, Skypac and Skypic, as well as Hua Gong, who was the general manager of both Victorian stores.

Twenty seven workers, including 10 juniors under the age of 18, were underpaid $38,458 during 2017. Some of the workers were paid as little as $10 an hour.

The employees were paid low, flat rates, resulting in underpayment of their hourly rates, casual loadings and penalty rates for weekend and public holiday work.

The employers made false and misleading records and unlawfully required some workers to pay back money that had been recovered as underpayments.

Ms Gong and Skypac breached laws by requesting a worker pay almost $5000 to cover part of a rectification payment and a tax refund payment made to her.

Lawyers for Ms Gong argued her conduct was impacted by “Chinese culture difference” and “average English”.

Judge O’Sullivan said the case illustrated an “all too common phenomena where employers from culturally and linguistically diverse backgrounds who exploit workers (including, or especially, from within their own ethnic communities) and then come before the court and seek to rely on their own alleged ignorance of workplace laws or foreign cultural norms to mitigate any penalties that need to be applied when they are finally caught out”.

He said Skypac and Skypic had previously been put on notice to comply with workplace laws, the breaches were serious and deliberate, and the penalties should “act as a deterrent to others who may be minded to flout the law”.

Fair Work Ombudsman Sandra Parker said the case demonstrated that serious consequences apply for underpayment of employees.

But the judge said the proposed highest penalty the regulator agreed should be imposed on Ms Gong was just one-sixth of the maximum.

Following the filing of a statement of agreed facts and the parties agreeing on a proposed range of penalties, Judge O’Sullivan said the penalties “should be at the very maximum of that agreed”.

“In the end, the penalties for the first and second respondents represent 25 per cent and almost 20 per cent of the possible maximum, whilst for the third respondent only 16 per cent of the maximum,” he said.

He found Ms Gong’s conduct “at stages smacked of obstruction and/or obfuscation”.