Darwin company Choong Enterprises cops $335,017 penalty for underpaying and overworking 457 visa holders
4th June 2015
A Darwin company has been ordered to pay $335,017 in restitution after it was found to have ripped off foreign workers on 457 visas, in a case that is the first of its kind in Australia.
The Immigration Minister won the Federal Court case against Choong Enterprises and its owners, Ronald Choong and wife Kim Choong, in the largest civil penalty any court has imposed for a breach of sponsor obligations for 457 temporary work visas under the Migration Act.
A spokesman for Assistant Minister for Immigration and Border Protection Senator Michaelia Cash told the ABC it was the first time the Minister had successfully obtained restitution orders for exploited visa holders.
The spokesman said the judgment should send a strong message to any company that exploited foreign workers.
“This is further evidence of the Coalition government’s commitment to ensure those who seek to misuse our migration programmes and exploit workers will be targeted and will be prosecuted,” the spokesman said.
“We have zero tolerance for those who seek to exploit workers, and today’s judgement is evidence of the significant financial penalties that await those who flout our immigration and employment laws.”
The judgement, handed down in Darwin on Thursday by Federal Court Justice John Mansfield, ordered Choong Enterprises to pay an extra $125,956 in reimbursement to the Filipino workers it underpaid, as well as $26,460 as PAYG tax payable to the Commonwealth.
That was in addition to the $176,200 fine they had already been ordered to pay for breaching sponsorship obligations under the subclass 457 visas program, and $6,400 to the workers for the migration agent costs illegally deducted from their pay.
60 hours a week, $12 an hour
The Federal Court had previously found that Choong Enterprises, which the court was told now operates Nightcliff Fish and Chips in Darwin, had sponsored 10 male and female Filipino workers between 2009 and 2012 and paid them as little as $12 an hour.
The company also made them work 60-hour weeks in the dry season, when they were only supposed to work 38 hours a week.
Additionally, Justice Mansfield found they were not paid extra rates for working overtime, or on public holidays, nor did they receive paid sick leave.
It was also found the company did not keep proper records of payments and had illegally charged workers recruitment costs.
In addition to Nightcliff Fish and Chips, Choong Enterprises formerly owned a string of upmarket, middle-range and takeaway restaurants and cafes around Darwin.
The company’s request to pay the fines and restitutions in instalments over a period of nearly five years was rejected by Justice Mansfield.
The judgment stated that the “trading assets of Choong Enterprises have been significantly reduced in the last few years”, noting it only had one takeaway store in operation.
Justice Mansfield said the financial statements provided could not be verified and also noted it appeared a Choong Family Trust had made over $200,000 in advances last year to Choong Enterprises.
He said he was therefore not satisfied there were strong enough grounds for the company to be granted an order for periodic payments of the money owed.
Senator Cash said she expected all employers to abide by immigration and workplace laws.
“If you don’t, you will pay the price,” she said.
“And for those out there who are seeking or thinking to exploit our immigration or our workplace laws, I would say to them: think twice.
“If you breach your obligations you can expect to face the consequences and the consequences may well be very expensive.”
She said the Immigration Department and Fair Work Ombudsman “continually monitor employers across the spectrum to ensure they are abiding by their sponsorship duties”, but noted “the overwhelming majority of businesses act in good faith and therefore having nothing to fear”.