A high profile restaurant on Sydney Harbour has been put on notice after a number of underpayment complaints were made by staff members.

In one case, an Italian backpacker on a 417 working holiday visa was allegedly short-changed almost $6,000 while working as a kitchen hand in 2014.

The Fair Work Ombudsman found the employee was paid a flat hourly rate of $16.50 in the last six weeks of his employment. While the employee was paid higher hourly rates before this time, they were not enough to cover casual loading and penalty rates.

The restaurant argued that it had a flexibility arrangement with the kitchen hand which provided ‘benefits’ in return for the $16.50 flat hourly rate, including discounted staff uniforms, on-the-job training, meals and drinks. However Fair Work Ombudsman Natalie James said such ‘benefits’ don’t satisfy the restaurant’s workplace obligations under the Restaurant Industry Award 2010.

A Compliance Notice was issued requiring the restaurant to back-pay the former kitchen hand $5,703 and another $386 owed to a former waitress who was also underpaid. On the day the Compliance Notice was due to expire, the restaurant sought and obtained a stay of the Notice to challenge it in the Federal Circuit Court in Sydney. In response, the Fair Work Ombudsman sought Court orders requiring the business to set out the grounds for its challenge and for the challenge to progress to a hearing by the Court. The restaurant failed to comply with a requirement to set out the grounds of the challenge, but subsequently agreed to send cheques for the wages and entitlements in the Notice via its solicitors.

Arrangements have also been made for the money to be paid to the former employees.

After being contacted by Hospitality, Fair Work said it won’t be naming the restaurant, as it is now complying with the Ombudsman and working to rectify the breaches. Despite this, James said a pattern of behaviour by the restaurant now means it has been targeted for ongoing education and compliance monitoring. A number of other high profile Sydney CBD restaurants are also being monitored by the Agency’s Overseas Worker’s Team following intelligence that some are paying flat hourly rates to overseas workers below minimum Award entitlements.

“We treat the underpayment of visa holders particularly seriously, because they can be vulnerable if they are not fully aware of their workplace rights or are reluctant to complain,” James said.

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