Employer asked her to stay silent or lose student visa
By Ram Khatry
International students from Nepal are creating quite an image in Australia. Other than being a part of Australia’s fastest growing community and achieve excellence in education and career, Nepalese students have lately shown another side to their otherwise friendly and soft nature – that they are just not the right people to be messed with by their unethical bosses. Bad employers, specially restaurant and retail outlets, by now should know that if you mess with the legal entitlements of a Nepalese student then rest assured you would one day be dragged to the court and you will be made to ‘pay’ for the injustice.
There have been at least three known instances in the last two years involving Nepalese students wherein they were exploited by their employers in terms of per hour rate, weekend and public holiday penalty rates and other legally-binding entitlements. All three cases were won and compensations were paid to them amounting to tens of thousands of dollars.
The most recent has been in Victoria. A Melbourne employer who exploited a Nepalese student by paying $8 dollars less per hour than her local colleagues just because she was not an Australian has been named by Fair Work Ombudsman. The employer, identified as Jeffrey Herscu who runs Health Express at DFO South Wharf in Melbourne, threatened the 27 year old woman from Nepal with the cancellation of her visa should she seek legal remedy from Fair Work. She was paid only a flat rate of $12 an hour between September 2013 and March 2015 despite being entitled to a much higher rate, in addition to weekends and public holiday penalties.
“When I came for the interview, he said that I will give you the job, but as you are not an Aussie, I will be paying you a lesser amount,” she told Fair Work investigators. Her Australian colleagues at the takeaway shop, run by Mr Herscu’s Rapid City Pty Ltd, were paid more than $20 for the same work, a statement of the Ombudsman said yesterday.
An investigation discovered that the student was short-changed more than $23,500. She was entitled to be paid up to $23.15 an hour for normal work, up to $27.78 on Saturdays, up to $32.41 on Sundays and up to $50.93 on public holidays – the rates she never received.
The victim apparently left for Nepal after she lodged the complaint with the Fair Work Ombudsman to be by the side her sick father. When she returned to Australia, she surprisingly found out that she was no more on the roster of Health Express. Her job was gone understandably as punishment for her complaint with the rights body.
Her colleague, a 31 year old male student from India, was paid a flat rate of between $16.47 and $18.52 an hour between June 2010 and March 2015, resulting in an underpayment of more than $27,300.
They were both also entitled to a uniform allowance of $1.25 a shift which they never received and the male employee did not get his correct annual leave entitlements at the end of his employment, the Fair Work statement pointed out.
It is understood Mr Herscu has co-operated with the Fair Work Ombudsman and has also agreed to apologise and back-pay the $50,000 he owed to the Nepalese and Indian students.
“Employers simply cannot undercut the minimum lawful entitlements of their employees based on what they think the job may be worth, what the employee is happy to accept, what other businesses are paying, or what the job may pay in their country of origin,” Fair Work Ombudsman Natalie James said in the statement. Anyone operating a business must take time to understand the Australian laws relating to workplaces, she said.
In the third quarter of 2015, court penalised the former owner of a 7-Eleven store in Queensland for underpaying an international student from Nepal by tens of thousands of dollars. The young man knocked on the door of the Fairwork Australia Ombudsman in 2014 when he realised he was being ripped off by his employer, Mubin Ul Haider. Upon investigation by the authorities, he was found to be short-changed $21,298 during his employment at the now-closed 7-Eleven outlet at 243 Edward Street in Brisbane where he worked from January 2013 until February 2014. The Federal Circuit Court fined Mr Haider $6970 for his unfair treatment of the student and he admitted that ‘his business’ underpaid the young visa-holder his minimum wages, casual loadings and penalty rates’.
Unlike the Melbourne case where the employer was quick to admit his mistake, the 7-Eleven operator multiplied his problems by not taking the initial notices to him seriously following which he was dragged to court. Mr Haider did not comply when the Fair Work Ombudsman initially issued a Notice to Produce employment documents.
Another story of an exploited Nepalese student unfolded in South Australia last year. The Industrial Relations Court awarded a Nepalese-born South Australian man $15,000 in compensation for the exploitation he faced at the hands of Nicholas Sharma who ran Indian Masala Restaurant in Adelaide. The exploited waiter, Bimal Dehal, moved court after he failed to receive pay at weekend penalty rate for his work between April 29 and May 14 in 2014.
The student, 29 years of age at the time, initially asked Mr Sharma to pay what the restaurant owner owed to him, only sixteen hundred dollars. The Indian-born restaurateur did not budge saying Mr Dehal did not even speak ‘proper English’. As a result, the young family man took him to the court where the employer ended up parting with a much heftier fine of $15,000. “I’m offering to pay it, but not the amount that has been asked for — a person who can’t even speak proper English and he’s demanding $30 an hour,” Mr Sharma apparently said during the court hearing.
Industrial Magistrate Michael Ardlie said the restaurant manager showed ‘complete contempt for the legal process and for the workplace laws’.
The victim, who then lived at Daw Park in Adelaide with his wife, said to media that he wanted to ‘set an example for others who are in the same situation and to show that this is not acceptable’ because he suspected many Indian and Nepalese students were being exploited in similar fashion. With his 18 month long legal battle ending in his favour, he certainly achieved his mission.