RLC in the Media: Former students' fight for unpaid wages highlights loophole in Australia's legal system

Kajal Limbachiya says she would sometimes sleep on the couch at the Indian restaurant where she worked when she had insufficient breaks between her shifts.

Sally Brooks reports for ABC News.

At the start of 2020, the then-24-year-old international student from India was unaware she was about to face the toughest time of her life.

For $10 an hour she worked day and night shifts, doing a range of tasks including cooking, waitressing, and other odd jobs.

When she finished at 4am and had to work again at 10:30am, she said she slept at the restaurant in Melbourne because it wasn't worth going home.

Ms Limbachiya was also struggling financially because her employer wasn't paying her properly — she was owed nearly $15,000 in wages and superannuation when the pandemic hit in March.

Ms Limbachiya said she couldn't afford food, rent or university fees and spiralled into depression.

Two years on, the 26-year-old still has not been paid, despite a court ordering her employer to pay her what she is owed.

Vaishnavi Lella and Vineeth Kuddigana also worked at the Indian restaurant in early 2020 and were underpaid.

Ms Lella left the job after about one month and started looking for help to recover the $3,200 in wages and super she was owed.

She contacted the international student representative at Swinburne University, where she was studying a master's degree in construction management.

They put her in contact with employment legal rights service JobWatch.

In court proceedings, OzeeOze Pty Ltd, a private company owned by Shoukath Ali Mohammed, was recognised as the Indian students' employer rather than Mr Mohammed himself, which is an important distinction.

When asked why staff were paid $10 an hour, Mr Mohammed said he had put a lot of his own money into the restaurant and the students were not forced to accept that pay rate.

A complicated enforcement process

JobWatch's principal lawyer Gabrielle Marchetti is no stranger to tracking down "unscrupulous employers", as she calls them.

Sometimes her work, like many lawyers at community legal centres, involves "playing a private detective".

Such was the case when Ms Marchetti had to find an employer who "suddenly disappeared" during negotiations in another underpayment case involving three international students.

Small claims 'prohibitively' complicated for vulnerable workers

In addition to enforcement complexities, Sharmilla Bargon, coordinator of the Employment Rights Legal Service, said the process of lodging a small claim can be difficult for vulnerable workers.

Ms Bargon said these workers can be "locked out" of the process of recovering unpaid wages because of language barriers and "the complexities of navigating the system".

"Or … because they are fearful about speaking out about employers and putting their visa at risk," she said.

"The process of completing the relevant court forms, performing complex underpayment calculations and self-representing in court is not only prohibitively complicated, it is also unfortunately not a quick fix."

A small claims application can take months or longer, but Ms Bargon said the process was meant to be a faster and cheaper way to recover wages.

“One of the key attractions is that you do not need a lawyer to represent you, which is important if your claim is under $20,000 because legal fees can quickly outstrip the size of the claim," she said.

Read the full article here(16 March 2022)