Fair Work Ombudsman secures penalties in court over underpayment of Sydney nanny

Fair Work Ombudsman secures penalties in court over underpayment of Sydney nanny

by Freya Lucas

March 23, 2021

The rights of in-home care professionals, who provide early childhood education and care (ECEC) services in the homes of children and families, to award wage conditions have been highlighted in a recent case brought before the Federal Court. 

 

Fair Work Ombudsman Sandra Parker said the case was an important one, as it highlighted the consequences if employers require unreasonable hours of their employees. 

 

In the case, the employer, a husband and wife, were found to be liable for $32,500 and $5,000 in penalties, respectively, after they agreed that the nanny, who lived with them and their two children in Sydney’s CBD, worked up to 82 hours a week on some occasions during her employment with the family from May 2016 to May 2017. 

 

The nanny, who was 26 years of age when she began working with the family, was from overseas, and the role was her first job in Australia. Across the 12 months she spent in the role, she was paid the equivalent of $12,574 AUD directly into a bank account in her home country. 

 

The parties agreed that under the Miscellaneous Award 2010, she should have received the equivalent of $105,809 AUD for the hours she worked, including base and penalty rates for early morning and late night hours, overtime and public holidays. 

 

“The scale of the underpayments in this matter was particularly concerning to the Fair Work Ombudsman. 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,” Ms Parker said.

 

During the case, the parties agreed 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, as well as acknowledging that there had been breaches concerning annual leave, record keeping and payslips. 

 

All underpayments were rectified last year, three years after the employee had finished work for the employer. In making the judgement, Justice Nye Perram said the contraventions relating to underpayment, and the working of excessive hours were quite serious. 

 

Ms Parker highlighted the importance of visa holders feeling safe to contact the Ombudsman, noting that the Fair Work Ombudsman has an agreement with the Department of Home Affairs which allows for seeking support without fear of visas being cancelled. 

 

“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. Workers with concerns about their pay, hours of work or entitlements should contact us,” she added. 

 

Employers and employees seeking assistance can visit www.fairwork.gov.au or call the Fair Work Infoline on 13 13 94. An interpreter service is available on 13 14 50.

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