Supporting international students to recover underpayments at work

Supporting international students to recover underpayments at work

Wednesday, 29 September 2021

The International Student Employment and Accommodation Legal Service (ISEALS) is an integrated legal service for international students being delivered through the Study Melbourne Student Centre by Jobwatch, WEstjustice and Springvale Monash Legal Service. 

Recently, ISEALS helped Tala, an international student from south-east Asia. We've changed her name to protect her privacy. 

At the start of 2020, Tala was looking for a job. A friend worked at a fruit and vegetable store and told her that she could probably recommend her for a role there. Tala met with the boss, who told her that he could employ her as a casual retail assistant. The pay would be a flat rate of $14.50 per hour.

At the time, Tala was desperate for work and thought to herself that she would accept the job and work there until she could find something better. In March of 2020, COVID-19 hit and Tala knew that it would be very difficult for her to find another job.

Many people had lost work because of lockdowns and she was not eligible for Jobkeeper or Jobseeker because of her visa status. She was extremely worried about how she was going to survive.

Tala repeatedly told her boss that the low rate of pay was putting her in extreme financial hardship and that she was not able to pay her school fees, rent, bills, and food.

Instead of raising her pay to the lawful minimum (which, for the role she was doing, would have been at least $27.23 for ordinary hours Monday to Friday, with higher rates payable on weekends, after 6pm, and for overtime), her boss pressured her to work additional hours.

Her boss would also speak to her very rudely, often telling Tala that she was 'lazy' if she asked for time off to do her school work or go to the doctor. He also made derogatory comments about her nationality, including saying that people from her country were 'bad workers' and he wouldn’t hire them.

Tala eventually developed clinical depression. Her boss treated her extremely poorly when she told him she had been diagnosed with depression, again yelling at her that she was 'lazy' and telling her she was 'sick in the head'. She was not able to continue to work and had to quit her job.

She contacted Study Melbourne, who assisted her with casework support and referred her to an ISEALS lawyer. The lawyer was able to advise her about the different causes of action that she had, including in respect of underpayment, being forced to quit her job, and being treated badly at work because of her nationality and mental illness.

Tala decided that she wanted to try to recover her underpayment. An ISEALS lawyer assisted her to calculate her underpayment. Including overtime, penalty rates, and the low base rate she was paid, her total underpayment was approximately $33,000 (plus superannuation).  

She was also extremely concerned about her former colleagues who remained at the workplace, and wanted to take action to try to ensure that they would not be treated like she was. Tala knew that there were other employees in much worse situations than her – including one who was living in an apartment owned by the boss, who had the vast majority of her wages taken as 'rent'.

Tala decided that she wanted to bring a claim for underpayment in court and also report the underpayment to the Fair Work Ombudsman (FWO).

An ISEALS lawyer assisted Tala to prepare a complaint to the FWO and an application in court. The FWO considered that her complaint had merit and decided to investigate Tala’s former employer. Recently, the FWO issued a compliance notice to Tala’s former employer, requiring them to rectify the underpayment in full.

Tala’s actions have also inspired a second employee of the fruit and vegetable shop, who had also been underpaid, to come forward and make another complaint to the FWO. The second employee’s complaint is currently being investigated.

More information

We are pleased to be administering funding for ISEALS. It is funded by the Department of Jobs, Precincts and Regions and is the amalgamation of two previous programs.

Read more about ISEALS.

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