Seafood giant faces $1 million underpayment bill

Hundreds of former and current employees could be entitled to back pay.

The AWU alleged De Costi, a subsidiary of the publicly listed Tassal Group, contravened the industry award by failing to pay overtime. Picture: John Appleyard

Seafood company De Costi faces having to pay out more than $1m to hundreds of workers after a court found two employees should have been paid overtime for work done before 6am.

In a significant decision, the Federal Circuit and Family Court upheld a claim by the Australian Workers Union on behalf of two employees, Elisapeta Tuala and Suman Pokharel, who work at De Costi’s processing ­facility at Lidcombe in western Sydney.

Ms Tuala and Mr Pokharel generally work from Monday to Friday starting between 3am and 4.30am and finishing between 11am and 12.30pm, depending on their start time.

The AWU alleged De Costi, a subsidiary of the publicly listed Tassal Group, contravened the industry award by failing to pay overtime to Ms Tuala and Mr Pokharel for hours they worked before 6am.

De Costi and the AWU agreed the spread of ordinary hours for “day workers” was 6am to 6pm. However, the company said because the two workers habitually started before 6am and did not ordinarily work the spread of hours, they were not day workers but “non-continuous shiftworkers” and not entitled to overtime.

The AWU said Ms Tuala and Mr Pokharel were day workers entitled to be paid overtime for all hours worked before 6am because the industry awards provided that any “work performed outside the spread of hours must be paid for at overtime rates”.

The court found Ms Tuala and Mr Pokharel were best described as day workers subject to penalty rates for hours worked outside of ordinary hours.

The AWU said it believed about 50 current De Costi workers – and hundreds of former ­employees – have been underpaid more than $1m dollars over the past six years. “These women and men worked bloody hard doing tough jobs to put food on Australian tables,” AWU NSW secretary Tony Callinan said.

“If you get up in the middle of the night to work your shift in this country, you deserve to be fairly compensated for that effort. That’s a principle Australians hold dear and we’ve proven it’s one that still applies.”

A Tassal spokesman said De Costi maintained “it has at all times acted transparently and in good faith with its staff”.

“The award application in question in this matter is unique to De Costi Seafoods,” he said.