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Chinese company fined for breaching Australian workplace law

02 September, 2013

A Chinese company involved in dismantling heavy equipment at the former Mitsubishi site in Adelaide has been fined almost $15,000 by the Federal Circuit Court for breaching Australian workplace law.

The company, a Chinese state owned enterprise, used Chinese workers between October 2009 and June 2010 to assess and supervise the dismantling and removal of a press formerly used by Mitsubishi Motors Ltd.

The Fair Work Ombudsman commenced legal action against China Sanan Engineering Construction Corporation, after investigating information received from the Department of Immigration and Citizenship (DIAC).

At the centre of the case were claims that the company was paying the workers as little as $1.90 an hour until March 2010, when the Fair Work Ombudsman became involved.

During court proceedings, it was accepted that after the workers returned to China from Australia, they were paid wages which met Australian minimum wage requirements.

However, because the wages were paid only after the workers returned to China, Federal Circuit Court Judge, Denys Simpson, imposed a fine of $14,850 for breaches of workplace laws related to frequency of payments, which required the company to pay wages at least monthly.

Judge Simpson said there was an onus on foreign companies to ensure they comply with Australian industrial laws.

"The penalty must send a clear message not only to the respondent but also to other businesses or individuals who wish to send employees to Australia to work: they must inform themselves about Australian industrial laws and fully comply," Judge Simpson said.

Judge Simpson rejected an argument by China Sanan that no penalty should be imposed because the breach on frequency of payments to workers was 'technical'. Judge Simpson imposed the maximum penalty sought by the Fair Work Ombudsman even though the breach was not deliberate.

Judge Simpson also said that difficulties with language translation and cultural issues which gave rise to the issue do not "provide any proper excuse for not taking steps to become informed about what Australian industrial laws require".

Fair Work Ombudsman, Natalie James, said the case highlighted the importance that all companies operating in Australia needed to comply with workplace law.

"All workers with the right to work in Australia are covered by Australian workplace law," James said.

"This includes entitlements to the wages and conditions set out in relevant industrial awards or agreements or the National Employment Standards plus any wage-based conditions attached to specific visa categories, such as subclass 457s.

"The Fair Work Ombudsman pays particular attention to vulnerable workers, such as foreign workers, who can be vulnerable to exploitation as they're often not aware of what their entitlements are.

"This judgement also sends a strong message to international companies that breaches of workplace law in Australia carry consequences which, apart from any monetary penalty, could affect the reputation of foreign companies in the Australian market."

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Tony Abbett | Wednesday, September 4, 2013, 9:49 AM
Why is a Chinese company doing work IN AUSTRALIA that an Australian company can do? How did that happen?
Peter Saunders | Wednesday, September 4, 2013, 10:09 AM
Interesting that the Judge bought the line about "will be paid the proper minimum wage when they get home". i could not imagine that if they cannot pay them the right money when they are supposed to then how would she ever think that they would get the money any time later. and a mere $15k fine....you have to be joking. I am sure the chinese would be rubbing their hands with glee.
sylvia | Wednesday, September 4, 2013, 10:14 AM
They probably won the tender to dismantle and no wonder, if they budgeted to pay $1.90 per hour! More to the point, why were foreign workers brought in to do the jobs that Australian workers can do? How did the Chinese company get visas for these Chinese workers. Australians are denied the right to manufacture and now we are denied the right to dismantle our manufacturing facilties. What a basket case! Pity the future generations, no work equals no tax payments equals no social security and no infrastructure like roads, hospitals, schools for everyone to use.
Tibor Bode | Wednesday, September 4, 2013, 10:30 AM
Obvious abuse of the 457 visa. They might got another $2 to $3 back in China and were told that either they agree or no more Australian or other overseas work in the future. For them it is still good. This is where Australia has to decide whether the profit is more important using overseas labour that employing locals. Governments will loose out big time as less employed people, more social benefits, less taxes as there is less to spend. Our unemployment will go up while we solve the Chinese unemployment issue at leats in part. If the penalty would have been 1 million plus, they would not do it again. This amount of a contract worth a couple of hundreds or even millions? Just cost of doing business.
Bruce | Wednesday, September 4, 2013, 11:30 AM
Who's to say that the money wasn't taken off them when returned home anyway. About time the Australian Governments of any persuasion acted in the National interest of today and the future, otherwise there will be no future. I feel sorry for my grandchildren
Russell Anderson | Wednesday, September 4, 2013, 2:14 PM
These sorts of cultures have no idea on how to remunerate or compensate their people for their employment. Its all about screwing everybody to the last cent so everything can be done for cost or below at 100 miles an hour. Stupid is as stupid does. Australian workers should have been awarded the contract at a fair and reasonable rate without all the red tape that goes with it!
Ron | Thursday, September 5, 2013, 9:36 AM
This company would have taken the chance of getting caught, and to only be penalised $15k is a very low cost of taking that chance. This sends no message, other than a positive one of how weak our Federal Courts are. The only positive here is that The Fair Work department is actually communicating with the Dep't of Immigration and Citizenship! I think we should write to the Fair Work Ombudsman, Natalie James and Federal Circuit Court Judge, Denys Simpson expressing our concern at the low fine which is no penalty.
Peter | Friday, September 6, 2013, 10:04 AM
It is utter garbage to state that Australia can not offer the skill sets to remove a press. This shows clearly the abuse of the 457 visa system in taking Australian jobs, clearly highlights the complete mismanagement by the Australian Government for approving these visas.