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Introduction

The Fair Work Ombudsman has secured penalties of $209,000 against a Melbourne restaurateur, his two companies and his in-house accountant for underpaying workers.

Action

The employees, mostly overseas workers on working holiday and student visas, were underpaid at Tina’s Noodle Kitchen in Box Hill and Dainty Sichuan, on Swanston Street in the Melbourne CBD.

The Federal Circuit Court ordered the owner to pay penalties of $15,000 and his companies Wynn Sichuan Pty Ltd and Nine Dragons Pty Ltd to pay $95,000 and $88,000 respectively.

The companies’ in-house accountant admitted to being an accessory to the underpayment and record-keeping contraventions, and penalised $11,000.

2016 Audit by the Fair Work Ombudsmanends in 2020 penalty

During an audit in June 2016, Fair Work inspectors found that 30 employees across the two restaurants had been underpaid a total of $30,995 and the regulator took action in 2017.

Inspectors found that 17 employees at Dainty Sichuan were underpaid $18,190 and 13 employees at Tina’s Noodle Kitchen were underpaid $12,805.

FWO findings

Employees were paid flat hourly rates of between $10 per hour and $23.33 per hour in breach of the Restaurant Industry Award 2010. Some worked six or seven days a week, and over 10 hours per day.

The FWO comments

Fair Work Ombudsman Sandra Parker welcomed the Court’s penalties.

“The exploitation of migrant workers is unacceptable as they can be particularly vulnerable in the workplace due to language barriers or visa status. Minimum wage rates apply to everyone in Australia, including visa-holders, and they are not negotiable,” Ms Parker said.

“This outcome should serve as a warning to all employers to pay their workers correctly. We encourage any employees with concerns about their pay or entitlements to speak up and contact the Fair Work Ombudsman.”

The Federal Court:

The Court accepted the respondents failed to pay minimum wages; overtime; penalty rates for weekends and public holidays; and to keep records and provide payslips.

Judge Grant Riethmuller said a “large proportion” of the restaurant staff were visa holders who spoke Mandarin as their primary language: “Employees with these backgrounds are in a particularly vulnerable position, and that is a factor to which I give significant weight.”

Underpayments paid

The underpayments were rectified before the proceedings began.