The former franchisee of a Han’s Cafe outlet in Perth has copped $230,040 in penalties under the ‘serious contraventions’ provisions of the Protecting Vulnerable Workers laws.
Tac Pham Pty Ltd, the former franchisee of the Han’s Café Rockingham outlet, will pay penalties of $191,646, while the former general manager, Cuc Thi Thu Pham, will pay $38,394.
The company and Ms Pham breached pay slip laws and underpaid 11 employees, including a number of young and migrant workers, a total of $5,111 between October 2017 and April 2018. The employees have since been back-paid, but only after the Fair Work Ombudsman commenced its investigation.
The operator previously faced court for similar conduct. In March 2018, the Fair Work Ombudsman secured a total of $45,000 in penalties against Tac Pham Pty Ltd and Ms Pham. At the time, it was found the company and Ms Pham had breached pay slip laws, with 22 staff underpaid $27,920 at the Rockingham café between December 2014 and December 2015.
The latest breaches — which related to related to underpayment of ordinary minimum hourly rates, penalty rates, minimum shift-pay and an allowance, and regular failures to provide pay slips and to provide lawfully required information within pay slips when they were issued — were discovered by FWO Inspectors during auditing activities.
Three of those contraventions, relating to pay slip laws and underpayment of minimum wages, met the definition of ‘serious contraventions’ under the Protecting Vulnerable Laws because of the repeat offending.
Under the laws, which came into effect in September 2017, the the maximum penalties for serious contraventions are 10 times what would ordinarily apply: $630,000 per breach for a company and $126,000 for an individual.
“We will continue to make full use of the Protecting Vulnerable Workers laws to ensure that any individuals or companies who commit serious contraventions are held to account and understand the consequences of their failures,” said Ombudsman Sandra Parker.
“Repeat offending is simply unacceptable. Employers should also be aware that we treat cases involving underpayment of young and migrant workers particularly seriously, because we are conscious that they can be vulnerable due to factors such as a lack of awareness of their entitlements and a reluctance to complain. Any workers with concerns should contact us.”
Judge Christopher Kendall said the latest litigation revealed the extent of the non-compliance by the respondents had increased, despite commitments from Ms Pham during the earlier court proceedings to improve her payroll practices.
“The respondents had no intention of changing their conduct and would have continued as they had been if the [Fair Work Ombudsman] had not intervened when it did. The fact that the respondents did not take steps to engage an external [payroll] consultant for over one year after they had said they would do so and only in response to the [FWO]’s investigation is, again, entirely unsatisfactory,” Judge Kendall said.
“Importantly, the respondents failed to comply with the most basic obligations owed to employees. Their conduct reflects a cavalier and entirely unacceptable approach to core legal obligations.”
“Some employees were more vulnerable than others and in an industry which has a high number of junior employees, the need to ensure that the rights and entitlements of those more vulnerable are met is particularly high. Employers must be deterred from engaging in similar conduct.”
