The Guardian 19 March, 2008
A win for construction union
The Construction Division of the CFMEU in WA last week welcomed the decision to fine Perth builder Gerry Hanssen $174,000 for breaches in lodging non-union AWAs for 457 visa workers. Federal Magistrate Tony Lucev, who handed down the decision, said: "Hanssen Pty Ltd director and secretary Gerry Hanssen exploited the vulnerability and malleability of the workers". He told the court the "employees would sign anything because they were frightened of being sent home."
The fine, brought about by an investigation by the Workplace Ombudsman, is believed to be the biggest of its type handed down so far in Australia. Hanssen was found to have "bodgied" documents whereby the agreements were signed and dated after the actual lodgement dates. It was this that alerted the Workplace Ombudsman.
The union says that it has to be asked that if it was picked up by dodgy dates, what has been the history of Hanssen. Has this been a common practice? Has a retrospective search or investigation been done to see if this is systemic?
CFMEU WA State Secretary, Kevin Reynolds, said: "It also needs to be asked how Finbar, who Hanssen works exclusively for, feels about using someone who has been found to exploit workers. Is it their intention to continue this exclusive relationship? What is the federal government’s position? Does this mean that Hanssen and others like him are barred from importing foreign workers under 457 visas. It is our belief that it should."
Workplace Ombudsman Nick Wilson said:" This was a deliberate case of exploitation and something the community, quite rightfully, will not tolerate".
The Perth builder exploited 15 vulnerable subclass 457 guest workers, mostly from the Philippines, when he deliberately breached AWA approval and lodgement obligations.
Hanssen had sponsored the workers to come to Australia on the long-stay visas. The company admitted to the breaches alleged by the Workplace Ombudsman, including:
lodging 10 unapproved AWAs;
failing to lodge an approved AWA within 14 days;
failing to take reasonable steps to ensure five employees had ready access to their proposed AWAs for seven days; and
failing to take reasonable steps to ensure five workers received an information statement seven days before their AWA was approved.
Hanssen Pty Ltd’s breaches were compounded by its failure to follow "detailed legal advice" it had sought about making and lodging AWAs. Hanssen admitted asking the employees not to date the AWAs, because he intended to do so, due to the seven-day access obligation.
Federal Magistrate Lucev found Hanssen had deliberately undertaken the conduct, "in circumstances where he knew that the documents might not accurately reflect whether or not the employees had been afforded the requisite 7 day access period".
He said Hanssen tried to justify his conduct on the basis that it was common practice in the industry not to date documents. But Magistrate Lucev said such a practice couldn’t be countenanced for statutory requirements.
He said Hanssen appeared to regard the breaches "as being of little consequence", while he argued that the Workplace Relations Act’s scheme of self-regulation was an excuse for the company’s conduct.
But Magistrate Lucev said Hanssen Pty Ltd’s conduct didn’t reflect its "responsibility as an employer in a deregulated environment to conduct itself appropriately and comply with its statutory obligations".
He said the company was entitled to a 65 percent discount on the penalty due to its cooperation with the Workplace Ombudsman, contrition (although he pared back the discount on this basis because of the absence of contrition in affidavit evidence), its first offender status and the fact that although the breaches were deliberate and exploited vulnerable employees, they were not in the worst category of offences.
"This was a deliberate case of exploitation and something that the community, quite rightfully, will not tolerate," Workplace Ombudsman Nick Wilson said in a statement.