For almost two years, Andres, a Colombian-born international student, divided his time between studying and cleaning bricks for a sole proprietorship in Melbourne.
He was delighted to have landed the position during Australia’s construction boom and began learning the trade with the diligence of an immigrant who needed a job to survive and progress.
He told SBS Spanish that he was so grateful for the opportunity to work that he never considered questioning his new employer's requests.
At the request of his boss, Andres applied for an Australian Business Number (ABN) and submitted invoices each time he completed a job, despite the fact that he was not an independent contractor with his own business, but a worker for the company, who before cleaning bricks, had to collect the equipment from his employer's house.
He continued working under these conditions for almost two years, without questioning the verbal arrangement he had made with his employer.
But his goodwill was exhausted when his boss refused to pay him for two months of work.
“The last period I worked with him, I was on vacation from school. That meant I could work full-time. I worked many hours, almost double what I normally worked, for two months and he never paid me,” Andres explains.
According to Australian industry regulations, an employer cannot request an ABN number from an employee unless the person is an independent contractor.
Andres says the company owner accused him of damaging the door handles of several houses with the chemicals he used to wash the bricks, and that replacement costs were equivalent to two months' salary.
But Andres claims that the salary owed to him exceeded the cost of replacing the door handles, so he decided to seek legal advice from JobWatch, an independent non-profit organisation that advocates for workers' rights in Victoria, Queensland and Tasmania.
JobWatch's senior attorney, Gabrielle Marchetti, explains that the organisation also provides legal advice and representation for international students as part of the International Students Work Rights Legal Services program, funded by the Victorian government.
We help international students who received insufficient wages, for example, or were paid a flat hourly rate, $15 or $16, even when they were working nights, weekends or holidays.
Through JobWatch, Andres learned that it was not necessary to apply for an ABN unless the person is an independent contractor, with his own business and in charge of collecting GST for the Australian Taxation Office.
Ms Marchetti explains that employers often ask international students to complete paperwork to obtain an ABN, as a way of avoiding mandatory superannuation payments to the employee.
“All employees have the right to receive contributions to their retirement from their employers. When the employer does not pay this contribution it saves them a lot of money, and it constitutes what we call 'sham contracting',” Marchetti points out.
She believes it's important that international students know that there are free legal advisory services available in Australia to solve a variety of legal problems related to the workplace.
“[The lawsuit] took about two to three years to resolve, because JobWatch tries to help as many people as possible, but the result was exactly the same as if I had hired a private attorney, and it was completely free,” Andres explains.
After an online court hearing in August, Andres was able to successfully prove that his employer owed him money.
The magistrate ordered the sole proprietorship to pay more than $4000 in unpaid wages, a little more than $3000 in superannuation, and more than $1,400 in accrued interest.
Although the court decision represents a significant victory for the international student, it has left him with a bitter taste. The fight is far from over, as his former boss is refusing to obey the court order.
“My lawyer [Gabrielle Marchetti] called him several times and he hung up the phone on her. He says that I was never employed by him and, that I was an employee of his company, and that he was no longer the owner of that company, so it was not his fault. He's tried to wash his hands.”
Andres says he'll wait for two months for his former boss to reconsider. But if he continues to ignore the court order, Andres feels he will be forced to contact the police.
I feel that there are many employers who take advantage of the situation of international students and try to extort money from them in some way, not paying them what they deserve for their work.
Andres says that once an employer learns that a student intends to take the dispute to court or requests legal advice to arm himself with information, the employer generally tries to reach an agreement.
“In my particular case, it was more difficult, because this guy thinks that Australian laws can be ignored. He thinks that by hiding he is going to avoid paying up.
"That's why I made the decision to take everything to the last resort and make him accountable."
Andres recommends that all international students or workers who have just arrived in Australia be wary of employers who "ask for an ABN number, who hire without signing an agreement and who do not provide a fixed date for the collection of wages”.
He says dodgy employers often take advantage of international students' vulnerability and try to get away with not paying them fairly.
Following his experience with the Australian legal system, Andres encourages all international students to report irregularities at their worksites that lead to the exploitation of employees.
“All international students must understand that any mistreatment at work, including underpayment of wages, must be reported.
"There are services and help available. The first thing to do is research, make an appointment and find out.”
