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Race never determines the rate of pay

DiscriminationNovember 18, 2015

Race never determines the rate of pay (Last Updated On: August 8, 2016)

The operators of a Tasmanian resort are facing court for allegedly underpaying two Malaysian visa holders more than $63,000, and it was because of their race.

The Fair Work Ombudsman (FWO) is taking legal action against the owner of the resort Chang Yen Chang and his privately owned company Yenida Pty Ltd which operates the Scamander Beach Resort Hotel.

Mr Chang advertised in a Malaysian newspaper for a chef to work in the hotel’s kitchen. Mr Chang then sponsored the successful Malaysian national, via a 457 skilled worker visa. The worker’s wife also came to Australia on a spousal visa and was employed as a kitchen hand at the hotel for four months.

The chef was required to work six days a week, from when the restaurant opened for lunch to when it closed after dinner. He was paid an annual salary of up to $46,280 which is not sufficient to cover penalty rates for night, weekend and overnight shifts. His total underpayments were $52,928.

The worker’s wife was also required to work the same shifts and paid a flat rate of between $446 and $594 a week. Therefore her underpayments totaled $10,406.

Interestingly, Mr Chang paid their Australian employees correctly, including minimum hourly rates, penalties and loadings in accordance with the Hospitality Industry (General) Award.

FWO Natalie James states it was clear Mr Chang was aware all his staff were entitled to minimum award pay rates, therefore he knowingly chose to pay the Malaysian couple significantly less.

Mr Change is accused of breaching racial discrimination provisions of the Fair Work Act as he paid the workers less – based on their race.

Yenida Pty Ltd now faces maximum penalties of up to $51,000 per contravention and Mr Chang faces penalties of up to $10,200 per contravention. The FWO is seeking a court order for the employees to be back paid in full.

It is unlawful under the Fair Work Act to discriminate against employees on the basis of race, pregnancy, colour, sex, sexual orientation, age, mental disability, family and career’s responsibilities, marital status, religion, political opinion or social orientation.

If you would like to ensure that your workplace is equal and fair, contact us today on 1300 651 415. Employsure can advise on all matters regarding employee entitlements and address any questions you may have about the Fair Work Act.

Sourced via the Fair Work Ombudsman

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