The former operators of Wentworthville venue Blue Moon Restaurant have been slapped with $119,200 in penalties after it was found they underpaid an employee more than $150,000.
The worker was on a 457 visa and was employed at the restaurant between December 2013 and April 2016 on a contractual salary of $54,000.
Rekha Thakadiyal Joseph and Jijo Thiruvankavil Esahac, who owned and operated the Indian restaurant as a partnership, have been ordered to pay penalties of $63,600 and $55,600 respectively.
On behalf of the partnership, Ms Joseph set up a bank account in the employee’s name and deposited more than $1600 per fortnight, which is consistent with the contractual salary, into the account. However, Ms Joseph and Mr Esahac maintained control over the account for the majority of the worker’s employment. They retained the bank card and made transactions, reducing the account’s funds. The employee also lived with Ms Joseph and Mr Esahac for most of this employment.
The employee, who typically worked 11-12 hours a day, six days a week as a kitchen hand and then a cook, was paid cash-in-hand wages, which equated to just $400 to $450 per week.
According to the Fair Work Ombudsman, the worker was underpaid $153,352, including for underpayment of ordinary hourly rates, overtime rates, and penalty rates for weekend and public holiday work owed under the Restaurant Industry Award 2010. There were also underpayments of various leave entitlements.
The underpayments were rectified in August this year — more than four years after the worker’s employment ended. The Court ordered the respondents to pay interest on the back-payments.
Ms Joseph and Mr Esahac also breached workplace laws by keeping false or misleading records and failing to issue pay slips, as week as laws relating to cash-back requirements. Ms Joseph also provided false documentation and information to the FWO.
“Visa holders must receive the same minimum pay rates as every other employee in Australia and employers who blatantly underpay migrant workers will be found out. We will continue to take legal action to protect workplace rights, particularly where it involves vulnerable workers,” said Fair Work Ombudsman Sandra Parker.
“In addition, fast food, restaurant and cafe sector employers are on notice that enforcing workplace laws in the sector is a priority for the agency this year. Any workers with concerns should contact us.”
Judge Douglas Humphreys said the conduct of the respondents was “particularly egregious, given that this was a clearly planned course of conduct which took place over a number of years and involved an extremely vulnerable employee. The Court considers the conduct of the [respondents] in exploiting, apparently, a member of their own ethnic community to be particularly concerning”.
Judge Humphreys added “Those in the fast food, café and restaurant sector must understand that wage theft will not be tolerated by this Court. Wage theft is pernicious… it not only robs the worker concerned, but also financially disadvantages those decent and honest businesses who pay award rates of remuneration.”
