Restaurant failed to check wage rates and underpaid visa-holders $40,000

28 July, 2016 by

A Korean migrant who opened a restaurant in Melbourne last year without checking the wages applicable to his business has now been required to back-pay more than $40,000 to four of his former staff.

Businessman Kevin Pak paid four overseas backpackers – one from Korea and three from Japan – flat rates of $15 and $16 to work as kitchen hands and food and beverage attendants at his Russell St restaurant in the CBD.

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The restaurant, formerly known as Menya San Dame, but now trading as Shujinko, is open 24 hours a day, seven days a week.

A Fair Work Ombudsman investigation found that four former employees – who were in Australia on 417 working holiday visas – were short-changed when they worked at the restaurant between June last year and January this year.

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The former employees, aged between 23 and 30, often worked long hours, and on one occasion one worked 7-days a week for two consecutive weeks.

Two employees worked from 9 pm to 9 am.

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Their duties included serving customers, taking orders, seating customers, cleaning, assisting with the preparation and cooking of meals.

The workers, who spoke limited English and required the services of an interpreter, were underpaid $14,854, $10,444, $8790 and $5955 respectively.

They turned to the Fair Work Ombudsman for help after being told the restaurant was to close briefly for refurbishing and rebranding and were encouraged to look for work elsewhere.

Under the Restaurant Industry Award they should have been paid at least $21.09 to $22.24 an hour for ordinary hours and penalties of between $25.31 and $44.48 for weekends, shift work and public holidays.

Pak, a director of Double Nine Pty Ltd, the company which operates the business, told the Fair Work Ombudsman he was unaware of his workplace obligations as an employer.

He has expressed “sincere regret” for the underpayments, apologised for the conduct and co-operated with Fair Work inspectors to voluntarily rectify all outstanding entitlements.

In addition, Mr Pak has signed an Enforceable Undertaking (EU) with the Fair Work Ombudsman aimed at encouraging behavioural change and future compliance with federal workplace laws.

“Overseas workers are often vulnerable because of a lack of awareness of their workplace rights and language barriers, so we place a high priority on ensuring their workplace rights are protected,” said Fair Work Ombudsman Natalie James.

“Successful compliance outcomes such as this also help to ensure a level playing field for employers who are doing the right thing and complying with their obligations.

 “We use Enforceable Undertakings where we have formed a view that a breach of the law has occurred, but where the employer has acknowledged this and accepted responsibility and agreed to co-operate and fix the problem.”

Pak is back-paying his former staff under a repayment plan which will ensure all outstanding wages and entitlements are reimbursed by the end of September.

The Fair Work Ombudsman has a number of Inquiries underway to identify and address the structural and behavioural drivers of non-compliance in various industry networks and supply chains in which overseas workers are heavily represented.