An Afghan refugee was made to work 13 hours a day, seven days a week in a Melbourne fruit shop for as little as $3.50 an hour, the federal court has found, handing down a fine of more than $600,000 to his former employer.
Abdulrahman Taleb, the former owner-operator of Sunshine Fruit Market in Sunshine in Melbourne’s west, was fined more than $16,000 and his company Mhoney Pty Ltd $644,000, in the federal circuit court, the largest penalty resulting from a fair work ombudsman litigation.
The Afghan national Syed Kazemi arrived in Australia as an asylum seeker in 2010. He spent several months in detention on Christmas Island before being found to be a refugee and granted permanent protection.
When he began employment at Sunshine Fruit Market in 2012 he spoke little English and had little understanding of his legal entitlements or the minimum wage.
For three weeks, during which he worked every day, Kazemi was paid nothing, and when he asked for his wages he was told they were being kept as a “bond”. He was eventually paid in cash, but was underpaid by several thousand dollars.
During a second period of employment, in 2012 and 2013, Kazemi was told he would earn $10 an hour, up to a maximum of $120 a day – significantly under the minimum wage – but he was never paid the full amount he was owed. Over about four months of employment, Kazemi was underpaid more than $25,000.
In his judgment, Judge Philip Burchardt said Taleb had deliberately and systematically exploited Kazemi.
“This was an egregious underpayment. The underpayments were so significant that the total not paid to [the worker] was, in relative terms, enormous for such a short time. Furthermore, for some of the time [he] was simply not paid at all.”
Record-keeping was chaotic and incompetent at Sunshine Fruit Market, the judge found, but he accepted that Kazemi was ultimately paid between $3.49 and $9.29 an hour over the course of his employment.
He should have been paid hourly rates of about $17 for normal hours, up to $35 on weekends, and up to $43 on public holidays under the general retail industry award 2010. The company also failed to pay overtime rates, superannuation or provide meal or rest breaks, despite the long hours.
The judge said Taleb deliberately exploited a worker who had few options to seek recourse.
“[Kazemi] was a vulnerable employee in that he was a recent arrival to Australia and totally lacked fluency in English, and could reasonably be understood to be most unlikely to be aware of any entitlements at law,” Burchardt said.
“Under cross-examination Mr Taleb presented as exceptionally uncooperative and aggressive. He struck me as being a formidable and overbearing man. He manifestly failed to answer questions responsively and his disputation of the clearly accurate contemporaneous file notes made by the fair work ombudsman officers was highly unimpressive.”
The fair work ombudsman, Natalie James, said the record penalty handed down to Taleb should serve as a warning to employers who exploit workers.
“Employers who deliberately exploit vulnerable workers should be on notice that we will do everything in our power to hold you to account,” James said.
“We have no sympathy for employers, as in this case, who arrogantly ignore direct advice from my agency about their wage obligations and exploit vulnerable members of the community in order to obtain a commercial advantage.”
The ombudsman has launched an anonymous report tool in 17 languages, including Chinese, Arabic, Korean and Spanish, to assist migrant workers in reporting workplace exploitation.
“Factors such as limited English skills, cultural barriers and a lack of awareness of workplace rights mean that migrant workers can be particularly vulnerable to exploitation in the workplace,” James said.
Taleb is no longer the owner of Sunshine Fruit Markets. His company has been deregistered.