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Fruit Market Owner Slapped With Record Fine For Underpaying Refugee Worker

An Afghani employee was underpaid $25,588 over four months.

The former owner of a Melbourne fruit market has been handed a record $660,000 fine by the national Fair Work Ombudsman on Wednesday for ignoring minimum wage requirements and underpaying a refugee employee for weeks.

Abdulrahman Taleb, the former owner-operator of Sunshine Fruit Market in Melbourne's west was penalised $16,020 and his company Mhoney Pty Ltd fined $644,000 for underpaying an Afghani refugee for up to four months of work, according to a statement released by the Ombudsman.

The penalties handed down to Taleb and his company are the largest fines ever awarded as a result of Fair Work Ombudsman legal action.

It is believed the employee, who speaks little English and came to Australia as an asylum seeker before spending time in detention and being granted residency in 2010, worked for free early in 2012 and was later paid $10 per hour, up to a maximum of $120 per day, for moving and stacking fruits and vegetables at the market.

With Taleb's company failing to pay the worker the minimum wage of $17 per hours for normal hours, $35 on weekends, $43 on public holidays and any additional overtime rates, Judge Philip Burchardt of the Federal Circuit Court stated the worker had been underpaid $25,588 for two periods totaling four months of work between April 2012 and January 2013.

According to the Ombudsman, the worker was also not given meal breaks throughout shifts, which were often up to 12 hours long, and was not paid untaken or loaded annual leave income or superannuation entitlements following the termination of employment.

"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," Burchardt said in his ruling.

"I accept the submission of the [Ombudsman] that the way it worked out was that [the worker] was paid wages of between $3.49 and $9.29 per hour. This was an egregious underpayment. It gave the respondents an unfair advantage in the competitive retail industry.

"[The worker] 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."

A Fair Work Ombudsman spokesperson also told HuffPost Australia the case is not a one-off occurrence. In the 2015-16 financial year, 38 of 50 Ombudsman minimum pay and entitlement litigations -- more than three-quarters of cases -- involved a foreign visa holder. Of those, 16 cases involved an individual on a 417 working holiday visa. In that period, the government body also managed to recover more than $3 million for all visa holders.

"The Fair Work Ombudsman has a strong focus on protecting the rights of migrant workers, and those more broadly from a culturally and linguistically diverse background, because we know they can be vulnerable if they are not fully aware of their workplace rights or are reluctant to complain. We are conscious that youth, language and cultural barriers can also create difficulties for these workers," the spokesperson told HuffPost Australia.

"All workers, including visa holders with work rights, are entitled to Australia's minimum pay and entitlements."

Fair Work Ombudsman Natalie James said the penalties handed down on Wednesday should serve as a warning to employers looking to exploit workers.

"These new record penalties highlight how seriously the courts take unlawful behaviour which involves workers being taken advantage of and stripped of minimum wages and entitlements," she said.

"Employers who deliberately exploit vulnerable workers should be on notice that we will do everything in our power to hold you to account.

"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."

In addition to the financial penalties handed down by the Ombudsman, Berchardt also ordered an injunction against Taleb that could see him face contempt of court charges over any further breaches of Award and the National Employment Standards that may be proven in a court in the future.

The ruling now means Taleb will be personally responsible for paying back the worker underpayments adding up to $6,518.52, should Mhoney is unable to.

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