The Fair Work Ombudsman (FWO) is the Commonwealth Regulator that promotes and enforces minimum wages and conditions for employees.

On 4 August 2014, the FWO announced its Overseas Workers Team (OWT) will conduct a review of the wages and conditions of overseas workers who hold the 417 Working Holiday Visa (417 Visa). This will involve the FWO conducting field visits in the coming months.

Statements in this FWO announcement suggest that the cleaning services industry will be targeted by this review.

FWO litigation

The FWO announcement states that the cleaning services industry is among the industries that attract the highest number of FWO litigated proceedings regarding the underpayment of overseas workers.

Since the FWO was established in July 2009, it has commenced 51 legal proceedings regarding the underpayment of wages and conditions of overseas workers, representing approximately 20% of its litigation.

The top five industries involved in these 51 legal proceedings include restaurant, retail, fast food, cleaning and maritime.

Additionally, the largest total penalty awarded by the courts was against cleaning company Housekeeping Pty Ltd and its manager in 2013. The total penalty awarded in this case was $343,860; $286,550 for the company, and $57,310 for its manager. These penalties were imposed in addition to the $22,510 ordered as back-pay to six cleaners, five of whom were on 417 Visas.

The total penalty in this case exceeded the previous record total penalty in 2009 of $288,000, which also involved the cleaning services industry. This comprised of a $240,000 penalty for Saya Cleaning Pty Ltd and $48,000 for its director, for underpaying its cleaners.

Ongoing FWO compliance measures

The final mention of the cleaning industry in the FWO announcement is that the FWO already has ongoing involvement in compliance measures for the industry, in recognition that it employs significant numbers of overseas workers.

The inherent characteristics of cleaning services, including seasonal demand, odd hours, and sometimes remote workplaces, means that the industry attracts many overseas workers, particularly those on 417 Visas.

Given that the OWT was established in recognition of overseas workers' general capacity to be vulnerable and/or requiring special assistance, other employees who hold a visa other than the 417 Visa may also be caught by the review (for example, student visa holders).

The implication for employers in the cleaning services industry is a need to comply with both employment and migration legislation. As an employer of any overseas workers, you should ensure that:

  • you are compliant with the minimum wages and conditions in the Fair Work Act 2009 and the Cleaning Services Award 2010
  • your workers have appropriate work rights (if they are not Australian citizens or permanent residents).

Businesses that are non-compliant may be issued with infringement notices or, in more serious cases, prosecution in the Federal Circuit Court where maximum penalties under the Fair Work Act 2009 include $51,000 (per contravention) for companies and $10,200 (per contravention) for individuals.

Penalties also apply under the Migration Act 1958 where employers have engaged overseas workers who do not hold an appropriate visa, or engage in work which is contrary to their visa conditions.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.