Workers allegedly unpaid for a year on ”work experience” scheme

The Fair Work Ombudsman commenced legal action against a Sydney childcare operator that allegedly failed to pay two migrant workers any wages for a year of work under the guise of an “unpaid work experience” scheme.

Facing the Federal Circuit Court are Jan Shang, who owns and operates the Joys Child Care centre, and his company Joys Child Care Limited. The Fair Work Ombudsman alleges two childcare workers were paid nothing despite being entitled to a total of $54,752 in wages, public holiday and annual leave entitlements for a year’s work they performed at Joys Child Care between February 2016 and February 2017.

Both workers are females who are originally from China. They performed general childcare duties at Joys Child Care, which offers long day-care and educational programs in Chinese and English languages for children up to the age of six.

The Fair Work Ombudsman alleges that in return for unpaid work, Shang and his company purported to pay for the two workers’ enrolment in a Diploma in Early Childhood Education at a training institute and provide the workers with practical experience and training to meet the work experience component of the Diploma.

The Ombudsman considers several weeks of initial unpaid work performed by the two workers to have been part of a vocational placement that was a legitimate part of their Diploma. However, the Ombudsman alleged that the work the two workers performed at Joys Child Care went well beyond the work experience hours required under the course – and that the workers were lawfully entitled to be paid for the work performed when they were not undertaking a vocational placement.

The workers lodged requests for assistance with the Fair Work Ombudsman last year after their employment with Joys Child Care ended. It investigated and determined that because the two workers had performed productive work for Joys Child Care under little or no supervision, they had been employees of the company when they were not undertaking the vocational placement.

The Ombudsman stated the workers were entitled to the applicable minimum wage rates and annual leave entitlements under the Children’s Services Award 2010. It added that one of the workers, aged 42, was a full-time employee and was entitled to have been paid $35,062 and the other, aged 25, was a part-time employee and was entitled to $19,690.

In November last year, the Fair Work Ombudsman issued Shang and his company two compliance notices requiring them to back-pay the workers in-full within 14 days. He faces a maximum penalty of $6300 and Joys Child Care Limited faces a maximum penalty of $31,500.

Due to Joys Child Care failing to keep a record of the hours of work performed by workers, the Fair Work Ombudsman relied on the full-time worker’s own timetable of the days and hours she had worked for the basis of determining the wages owing to her. The Ombudsman also sought Court Orders for Shang and his company to back-pay the employees in full and for Shang to register with the Fair Work website and complete the education courses for employers.

A directions hearing is scheduled for the Federal Circuit Court in Sydney for 18 June.

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