A Victorian transport company and its owner have been smacked with a heavy fine after underpaying three truck drivers over a two-year period.
In an example of what operators face for not complying with their payment obligations, the Federal Circuit Court fined Openica Logistics $34,500 and director Vladimir Taseki $7100.
The court found that the company underpaid the three drivers a total of $69,175 between 2010 and 2012, with one driver owed $45,291. The other two drivers were underpaid $16,422 and $7461, respectively.
Judge Grant Riethmuller ruled that the drivers, all aged in their 50s, were underpaid living away from home allowances and two did not receive payment for casual loading.
One driver was not paid for all kilometres driven.
"There is no evidence that the respondents took any particular steps to ensure compliance with their obligations under the [employment] Award," Riethmuller says in his ruling.
"It is apparent that they were aware that there were Awards.
"Given the overall number of employees involved in this business, the importance of compliance with the Award was a significant issue warranting careful attention by the employer."
The breaches were uncovered when inspectors from the Fair Work Ombudsman (FWO) came knocking to investigate the company’s practices following a request for help from employees.
Along with payment breaches, Openica Logistics was also caught out for failing to make a copy of an employee’s records for inspection.
It did reimburse the drivers, but only after the FWO launched legal action.
During proceedings Riethmuller cited the importance of the living away from home allowance, saying it was intended to compensate drivers for being away on a regular basis and not being provided with suitable accommodation.
"The respondents [Openica and Taseki] point out that the sleeper cabs in the trucks were assessed by Work Safe as sufficient for fatigue management, although, clearly, requiring the driver to sleep in a cabin is an imposition beyond normal arrangements one would expect for an employee, for example a motel room," he says.
"It is clear that the living away from home allowance is intended to compensate a driver for these conditions."
Ombudsman Natalie James has used the case to warn businesses to expect big penalties if caught breaching their workplace obligations.
"In cases where there is evidence there has been a deliberate disregard to meet these obligations we can, and will, strongly consider using the enforcement measures available to us," James says.
The FWO will be the agency responsible for making sure the industry complies with the order for owner-drivers to be paid minimum hourly and kilometre rates from April 4.
The Transport Workers Union (TWU) believes the case warrants the introduction of a fund to finance national auditing and education initiatives.
The union wants all employers in the transport supply chain to be required to contribute to the fund. It says the money would be used to educate employers on their workplace obligations and train truck drivers on safety and their rights at work.
"This fund is important in holding companies to account over fair rates of pay and safety. At the moment it is the rest of the community which is bearing the brunt of lost wages and lost lives on our roads," TWU national secretary Tony Sheldon says.
"Here we have three drivers in their 50s having thousands of dollars stolen from their pay checks and forced to sleep away from their families in their trucks. This demonstrates the crisis our industry is in and why we desperately need a national fund to ensure this disgraceful treatment of hard-working transport workers stops. Companies at the top, not just transport operators in the middle, must be held to account."