The following article is a summary of an underpayments case heard last month in a prominent Melbourne restaurant. It highlights the severity of the penalties and the robustness applied to the case by the Fair Work Commission, in relation to not only underpayments but also record keeping, meal breaks, annual reconciliations for those on an annualised salary arrangement and international workers. Restaurant operators penalised $204,120 1 June 2021 The Fair Work Ombudsman has secured court-ordered penalties against the operator of an Italian eatery, in an inner Melbourne suburb. The Federal Circuit Court has imposed a $170,100 penalty against the business and $34,020 against the company’s sole director. The company admitted to having underpaid 40 employees a total of $53,850 between December 2017 and June 2018. The business paid flat hourly rates, in some cases as low as $18 per hour, for its casuals which failed to meet minimum hourly rates, casual loading, overtime rates and various penalty rates owed under the Restaurant Industry Award 2010. The company also did not provide adequate meal breaks, failed to keep records including time records, and did not undertake required reconciliations for full-time annualised salary employees. Judge Philip Burchardt noted the vulnerability of some of the underpaid workers - over half were visa holders mostly from non-English speaking countries. They were mostly on student visas, working holiday visas or partner visas and came from countries including France, Brazil, Nepal and Chile, among others. About half (14) of the underpaid visa holder workers were aged 25 or under when they began to work at the Restaurant. Fair Work Ombudsman Sandra Parker said the regulator prioritised matters involving young and migrant workers in the fast food, restaurant and cafés sector due to ongoing compliance issues. “The Fair Work Ombudsman does not tolerate the exploitation of any worker, including migrants who can be vulnerable due to factors such as limited English or little understanding of their rights under Australian law. All workers in Australia have the same rights, regardless of citizenship or visa status.” “Employers are urged to prioritise workplace law compliance or risk substantial court-ordered penalties on top of back-payments” Ms Parker said. In a written judgement, Judge Burchardt said of the company’s director, “[i]f he was not deliberate in his breaches of the award obligations, he was, at the very least, wilfully blind to them.” His Honour said that the timekeeping contraventions “strike at a matter central to the system of industrial regulation”. “Equally, however, the failure to pay employees their wages and to give them their benefits under the award is also, in my view, of commensurate seriousness… bearing in mind the nature of the industry and the disadvantaged nature of the employees,” Judge Burchardt said. The FWO investigated the restaurant as part of an auditing campaign. The underpaid workers were generally engaged as kitchen attendants, waiters or cooks. The company fully rectified underpayments in July last year after the FWO commenced litigation. Source: Workplace Express - workplaceexpress.com.au
For all Tasmanian hospitality employee relations and industrial relations issues contact Allison Park allison@tha.asn.au | 03 6220 7305 or 0407 869 924
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