The former operators of the Scamander Beach Resort Hotel in Tasmania have been accused of underpaying two Malaysian visa holders more than $63,000.
Facing court is Sydney man Chang Yen Chang and his private company, Yenida Pty Ltd. Chang owned and operated the resort on Tasmania’s east coast until last year.
Chang is accused of breaching the racial discrimination provisions of the Fair Work Act by underpaying the Malaysian husband-and-wife workers while paying Australian employees the correct minimum hourly rate, penalty rates and loadings, largely in accordance with the Hospitality Industry (General) Award.
Under the Fair Work Act, it is unlawful to discriminate against employees on the grounds of pregnancy, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer responsibilities, religion, political opinion, national extraction or social origin.
It’s alleged that in 2007 Chang advertised in a Malaysian newspaper for a chef to work at the hotel’s restaurant. His company, Yenida, subsequently sponsored a Malaysian national on a 457 skilled worker visa.
The chef’s wife accompanied him on a spousal visa and was employed at the restaurant as a kitchen hand for about four months.
While the chef was paid a salary of up to $46,280, it was allegedly not enough to cover applicable penalty rates for night, weekend and overtime shifts. As a result, the chef was allegedly underpaid $52,928 between 2010 and 2014. His wife was paid a flat rate of between $46 and $594 and was allegedly underpaid $10,406 between September 2009 and January 2010.
Despite paying Australian employees largely in accordance with the Hospitality Industry (General) Award, Fair Work inspectors found that an incorrect application and non-application of some provisions allegedly resulted in 15 Australian employees being underpaid a total of $26,566.
“We allege that Mr Chang and his company knew that all staff were lawfully entitled to minimum Award pay rates but chose to pay the Malaysian couple significantly less than Australian staff because of their race, which is completely unacceptable,” Fair Work Ombudsman Natalie James said.
“Overseas workers in Australia have the same rights and entitlements as Australian workers and must be paid according to Australian workplace laws.
Yenida faces maximum penalties of up to $51,000 per contravention and Chang faces penalties of up to $10,200 per contravention. The Fair Work Ombudsman is also seeking a Court Order for Chang’s company to back-pay the former employees in full.