The operators of two Chinese restaurants on the Gold Coast will face court in Brisbane on 21 December 2020, with the Fair Work Ombudsman alleging they underpaid a visa holder $46,555.
Fu Kang GC Pty Ltd currently operates Fu Kang Gold Coast Chinese Restaurant in Labrador and formerly operated Memory Taste of Fu Kang in Southport.
The company and its directors Ms Yingchun “Christine” Wang and Mr Liangtao “Frank” Zhao are accused of a range of contraventions, including failure to pay minimum ordinary hourly rates, overtime rates, and penalty rates for morning, evening, weekend and public holiday hours under the Restaurant Industry Award 2010; failure to pay annual leave and superannuation entitlements; and producing false and misleading documents.
The FWO investigated the company after it received a request for assistance from an employee, a Chinese national then aged in his 20s, who worked at both restaurants from July 2015 to January 2017, with the court action relating to a period between May 2016 and January 2017.
It’s alleged the employee, who was sponsored by the company on a 457 skilled visa, worked between 22 and 87 hours per week and received cash payments of between $200 and $600 per week, equating to between $2.30 and $12.85 per hour — resulting in $46,555 of underpayments.
It’s further alleged false and misleading documents, including records that stated the employee was paid $862 net per week or $26.95 per hour, were submitted to Fair Work Inspectors on three occasions.
It is also alleged that the company did not issue pay slips and failed to keep employee records relating to annual leave, the amounts paid to the employee, and the hours worked by the employee.
None of the alleged underpayments have been rectified and the FWO is seeking penalties against Fu Kang GC, Ms Wang and Mr Zhao.
The company faces a maximum penalty of $54,000 per contravention while Ms Wang and Mr Zhao each face a maximum penalty of $10,800 per contravention.
The regulator is also seeking a court order for Ms Wang and Mr Zhao to rectify the underpayment, undertake training in relation to their workplace obligations and engage a third party to audit the company.
“Visa holders, who we know can be vulnerable due to a range of factors including their reliance on an employer, must receive the same minimum pay rates as every other employee in Australia. We will continue to take legal action to protect workplace rights, particularly where it involves vulnerable workers,” said Fair Work Ombudsman Sandra Parker.
“Any employees with concerns about their pay or entitlements should contact the Fair Work Ombudsman for free assistance.”