Penalties secured on behalf of underpaid nanny

ATO protecting honest businesses, unfair contract terms

The Fair Work Ombudsman has secured $37,500 in penalties in court on behalf of a woman who worked as a domestic worker and nanny in Sydney after she was underpaid by $93,235 in one year. The Federal Court has ordered the worker’s employer Kit Antony (Tony) Lam to pay penalties of $32,500 and his former wife Ming Wei (Tiffanie) Tong to pay $5000.

The position with the couple was the employee’s, a citizen of the Philippines, first job in Australia. She lived with the then couple and their two young children in the Sydney CBD throughout her employment.

Lam and Wong admitted during the proceedings that the female employee worked at times up to 82 hours per week during her employment with the family between May 2016 and May 2017. Across the 12 months of her work, she was paid the equivalent of a total of $12,574, way below the $105,809 that she was entitled to under the Miscellaneous Award 2010.

Lam admitted the amounts paid to the employee resulted in underpayments of base rates and penalty rates, including those owed for early morning and night hours, overtime hours and public holidays.

It was also noted that the employee had been unreasonably required to work more than 38 hours per week in breach of the Fair Work Act’s National Employment Standards, and that Tong was involved in this particular breach. There were also annual leave, record-keeping and pay slip breaches.

All underpayments were rectified last year, three years after the employee ceased work.

“The scale of the underpayments in this matter was particularly concerning to [us],” Fair Work Ombudsman, Sandra Parker, said. “We viewed the employee as a vulnerable worker because she was new to Australia, resided with her employer, and did not know her workplace rights.

“The Fair Work Ombudsman prioritises matters involving vulnerable workers, including migrant workers, and will continue to take court action to ensure employers are held to account,” Parker added.

Justice Nye Perram said the contraventions relating to underpayments and the working of “excessive” hours were “quite serious”.

“Mr Lam’s conduct was deliberate in the sense he decided to hire a domestic worker and nanny from overseas and to pay her outside the Australian regulatory framework,” Justice Perram said.