QLD restaurant operator “deliberate and calculated” in underpaying student

The operator of a Queensland resort restaurant has been penalised for exploiting a young international student and dismissing her by text message because she refused to accept below-Award wages.

Jia Ning Wang, who owns and operates the Fire and Stone Restaurant on Moreton Island, has been penalised $20,366, and his company Golden Vision Food and Beverage Services Pty Ltd has been penalised an additional $51,830.

Wang also faces potential criminal charges for any future underpayments with the Federal Circuit Court imposing an injunction restraining Wang and his company from short-changing employees under the Hospitality Industry (General) Award 2010 in future.

It is the second time the Fair Work Ombudsman has secured penalties against Wang and his company after they were last year penalised a total of $21,000 for paying a young Chinese backpacker $10 an hour.

In the most recent matter, an American student performed 69.75 hours of waitressing work at Wang’s restaurant over a two week period in December 2014.

After the student, then aged 21, refused to agree to Wang’s offers to be paid amounts that undercut her minimum entitlements Wang threatened to terminate the student’s employment  and told her the Award was “just a guideline” and that $20 per hour was the “standard minimum wage across the industry”.

Wang later sent the employee a text message terminating her employment, stating that the employment “was not working out” and that “technically you don’t work for us”.

Wang failed to pay the student for any of the work she performed. The student complained and the Fair Work Ombudsman contacted Wang.

After initially denying the allegations and denying his company employed the student, Wang admitted contravening workplace laws and his company back-paid $1,963 in wages owed.

In addition to the underpayment contraventions, the threat to terminate the student’s employment and the actual termination contravened the section of the Fair Work Act that makes it unlawful to take adverse action against an employee for exercising a workplace right.

Wang and his company also contravened the section of the Fair Work Act that makes it unlawful for an employer to recklessly or deliberately make a false or misleading representation to an employee about their workplace rights.

In his judgment, Judge Michael Jarrett described the contraventions as “serious”, saying that “the conduct of the respondents that constitute the contraventions was plainly deliberate and calculated."

Judge Jarrett noted that the conduct occurred despite Wang having been “put on notice” to pay employees’ minimum lawful entitlements in the context of Fair Work Ombudsman investigations of underpayment allegations dating back to 2011.

“I think the background is also relevant because it demonstrates that Golden Vision or Mr Wang seems to have done little to change their business practices,” Judge Jarrett said.

“The respondents should be left in no doubt that its conduct and treatment of (the student) was an extremely serious contravention of Australian workplace laws.”

Judge Jarrett said the penalties imposed should also “serve as a warning to others that similar conduct can have serious consequences and ought not be repeated.”

Judge Jarrett praised the resilience of the student, who gave evidence that she found pursuing her wages “mentally exhausting” and that she had called her mother in tears after Wang threatened to dismiss her “because I didn’t want to lose my job for doing the right thing and standing up for myself and my rights”.

Judge Jarrett said: “laudably (the student) revealed herself to be very proactive and effective in looking out for her own interests. (Mr Wang’s) attempts to take advantage of her youth and her status as a visitor to this country were ineffective.”

Acting Fair Work Ombudsman Michael Campbell said the Court’s decision sends a message that exploiting international students is serious conduct with serious consequences.

“Australia’s minimum pay rates apply to everyone including visa holders, they are not negotiable,’’ Campbell said.

“Employees should feel safe in the knowledge that they will not suffer a detriment or lose their job for asking to be paid in accordance with the law.”