Melbourne restaurant fined $204,120 for worker underpayment

The operators of Gilson Restaurant, an Italian eatery in the inner-Melbourne suburb of South Yarra, have been fined a total of $204,120 after the Fair Work Ombudsman found they had underpaid 40 employees a total of $53,850 between December 2017 and June 2018.

The Fair Work Ombudsman also found that the restaurant had not provided adequate meal breaks, failed to keep records including time records, and did not undertake required reconciliations for full-time annualised salary employees.

Off the back of these revelations, the Ombudsman secured court-ordered penalties against the restaurant and its sole director, James McBride. The Federal Circuit Court imposed a penalty of $170,100 against Domain Botanical Business Pty Ltd and a penalty of $34,020 against McBride.

In his ruling, Judge Philip Burchardt noted the vulnerability of many of the workers who had been underpaid. More than half were visa holders from mostly non-English-speaking countries, many were on student visas, and 14 of the underpaid visa holders were under the age of 25 when they began to work at Gilson.

“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,” said Fair Work Ombudsman Sandra Parker.

Of McBride, Judge Burchardt wrote in statement: “[i]f he was not deliberate in his breaches of the award obligations, he was, at the very least, wilfully blind to them.

“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.”

Gilson was initially investigated as part of an audit conducted by the Ombudsman, which found that the underpaid workers were generally engaged as kitchen attendants, waiters, or cooks.

The company fully rectified payments in July last year after litigation was commenced, but will now have to pay the court-ordered fine on top of the worker back-payments.