ECEC operator ordered to pay $55,000 for unpaid work experience

A childcare operator in Sydney has been ordered to pay $54,752 to two migrant workers who were not paid for a years worth of work after its  defence that the workers were doing “unpaid work experience” was shot down by a judge who found in favour of the Fair Work Ombudsman.

The case, which was reported initially in The Australian, found that an owner-operator in the Sydney suburb of Paramatta, and the owner’s company, failed to pay two workers any wage for work they had performed at the centre. 

The workers, who are Chinese nationals, responded to an advertisement which offered a one-year traineeship in exchange for one hour of teaching per day, while the workers gained qualifications in early childhood education and care (ECEC). 

On day one in the role, one of the workers was told to teach the children, with no prior training. Promised classes that were to be offered through a local training institute were not provided, other than one first aid class, The Australian reported. 

When asked by the presiding Judge for a reasonable explanation as to why the workers had not been paid, or why the centre had not complied with notices issued by the Fair Work Ombudsman, the centre insisted the two workers were not employees but volunteers.

Judge Tom Altobelli rejected this assertion, saying that the pair had in fact worked at the centre, and did not receive the training they were promised, describing the relationship between the employer and the pair as “completely unequal”. 

“The workers gave everything and received nothing in return,” he said, adding that the company and the owner-operator had done “everything they possibly could” to disguise the arrangement that they had with the two women “in ways that sought to avoid the impression of employment.”  

Judge Altobelli said that the fact that the service was a community based facility, a not-for-profit company limited by guarantee, and a registered charity, “did not make the slightest difference to the reality of the situation”.

Rather, he said, the facts of the case made the not for profit status of the operator offensive, saying “on the facts of this case, it would give offence to the notion of reasonable excuse to hold that noble intentions and altruistic motives justifies what happened.” 

Legal action was taken by Fair Work, former Ombudsman Natalie James said, because workers had allegedly been denied basic lawful entitlements and the employer had refused to co-operate and resolve the matter outside of the courts by complying with the compliance notices.

The Ombudsman is also pursuing financial penalties against the centre. To view the original coverage of this story, please see here.