Successful court proceedings against a Bellingen trader have resulted in heavy fines.
Successful court proceedings against a Bellingen trader have resulted in heavy fines. Rob Wright

Bellingen trader heavily fined for contracting sham

THE OPERATORS of a Bellingen fruit and vegetable store have been heavily fined after a court found they engaged in sham contracting and underpaid a shop assistant more than $60,000.

EA Fuller and Sons Pty Ltd - which operates at 995 Waterfall Way - has been fined $139,040 and company director and part-owner Eric Andrew Fuller has been fined a further $27,808.

The fines, imposed in the Federal Circuit Court in Sydney, are the result of a prosecution by the Fair Work Ombudsman.

Mr Fuller admitted he was involved in the company underpaying five casual employees a total of $82,475 when they worked as shop assistants at the store between 2006 and 2010.

The employees were paid flat hourly rates, which led to underpayment of their casual loadings, annual holiday loadings and penalty rates for weekend, overtime and public holiday work.

Sham contracting laws were breached in relation to two employees, aged in their 30s, who were knowingly misclassified as independent contractors.

One of these employees was underpaid $60,827 over the three-and-a-half years she worked at the store.

The three other underpaid employees were females aged 18-to-20 at the time, including a Korean national who spoke little English.

She was paid as little as $6 an hour and was underpaid a total of $13,928 over a six-month period.

Judge Rolf Driver said Fuller and the company had been careless and disregarded their obligations.

"There is a need to send a message to the community, and particularly employers, that employers must provide their employees with the correct entitlements and steps should be taken to understand and comply with those entitlements," he said.

"The court regards the sham contracting contraventions as particularly serious and recognises the damage that sham contracting can have to the Australian economy and other employers generally.

"I also accept that the court should send a message to the retail industry in which the company operates."

Fair Work inspectors discovered the underpayments and record-keeping breaches when they investigated complaints lodged by employees.

The underpayments were subsequently rectified.

Fair Work Ombudsman Group Manager (Operations), Michael Campbell, said the court decision sends a message that sham contracting and underpayment of vulnerable foreign and young workers will not be tolerated.

"Successful prosecutions such as this benefit employers who are complying with workplace laws because it helps them to compete on a level playing field," he said.

Employers or employees seeking assistance should contact the Fair Work Infoline on 13 13 94 or visit www.fairwork.gov.au

A free interpreter service is available on 13 14 50.



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