Penalties imposed on Sydney care facility

The operators of respite and care facility Elizabeth Cottage in Sydney have penalised by the Fair Work Ombudsman after it was determined that they deliberately underpaid two disability support workers a total of $84,450.

The Elizabeth Cottage facility is operated by Lovely Care Pty Ltd and was penalised $36,000 by the Federal Circuit Court. The court also imposed a $5,580 penalty on the company’s director, secretary, and shareholder Elizabeth Bonilla for her involvement in Lovely Care’s underpayment of the workers.

The employees, a man from Egypt and a woman from China, were recent migrants to Australia at the time they were underpaid. The woman from China spoke limited English.

They were paid flat rates of $200 to $312 for shifts of at least 15 hours. The amounts were found to be below the employees’ minimum hourly rates, casual loadings and a sleepover allowance under the Social and Community Services Employees (State) Award and the Social, Community, Home Care and Disability Services Industry Award 2010. One employee was underpaid $54,115 and the other was underpaid $30,335.

The FWO commenced legal proceeding in 2013 against Lovely Care Pty Ltd and Bonilla, alleging both breached the Workplace Relations Act 1996 (Cth), Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and Fair Work Act 2009.

In November 2015, Lovely Care admitted all the alleged contraventions and rectified the underpayments with interest shortly before the start of the trial. However, Bonilla denied involvement in the contraventions. In January 2019, the Federal Circuit Court found Bonilla was involved in some of the contraventions, including that she had knowledge of the employees’ casual employment, the hours they worked, and Lovely Care’s failure to pay the full minimum ordinary time entitlements, casual loadings and other allowances.

Fair Work Ombudsman Sandra Parker said the penalties imposed by the Court reflected the deliberate nature of Lovely Care’s and Bonilla’s conduct.

“Migrant workers are some of the most vulnerable to underpayments in the community as they often have a limited understanding of workplace laws. Unfortunately some employers take advantage of this by paying them unlawfully low rates,” Parker said. “This judgement should serve as a warning to employers who would exploit migrant workers that they will get caught and face significant consequences for their actions.”

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