The operators of Blue Moon Restaurant in Western Sydney are facing legal action over allegations they underpaid one of their employees more than $150,000.
Rekha Thakadiyal Joseph and Jijo Thiruvankavil Esahac who owned and operated the Blue Moon Indian restaurant in Wentworthville will face Federal Circuit Court.
The Fair Work Ombudsman is alleging the pair underpaid an Indian worker they were sponsoring on a 457 skilled worker visa between December 2013 and April 2016 on a nominated contractual salary of $54,000 annually.
It’s alleged Joseph, on behalf of the partnership with Esahac, facilitated the opening of a bank account in the employee’s name and deposited more than $1600 per fortnight — an amount consistent with contractual salary — into the account. However, for the majority of the worker’s employment, Joseph and Esahac allegedly maintained overall control of the account, including retaining the bank card and making a number of transactions reducing the funds in the account.
The FWO alleges the worker was instead paid cash-in-hand wages equating to only $400 to $450 per week, despite generally working 11 to 12 hours per day, six days per week, while performing various duties in the restaurant’s kitchen.
The employee was allegedly underpaid the ordinary hourly rates, overtime rates and penalty rates for weekend and public holiday work he was entitled to under the Restaurant Industry Award 2010. His leave entitlements were allegedly also underpaid.
It is alleged that Joseph and Esahac also breached laws relating to cash-back arrangements towards the end of the worker’s employment by requiring him to repay part of his wages.
The FWO further alleges that Joseph and Esahac breached workplace laws by keeping false or misleading records and providing them to the FWO, and failing to issue pay slips.
Joseph and Esahac are facing penalties of up to $12,600 and $10,800 respectively per contravention. The FWO is seeking a court order requiring Joseph and Esahac to back-pay the employee, plus interest.
The employee, aged in his 20s, lodged a request for assistance with the FWO after his employment finished, which lead to investigators discovering the alleged underpayments.
“The conduct alleged in this case is extremely serious and completely unacceptable in Australian workplaces,” said Fair Work Ombudsman Sandra Parker.
“We will not hesitate to take legal action in response to alleged blatant breaches of vulnerable migrant workers’ rights. Employers in the fast food, restaurant and cafe sector are on notice that they must pay all employees according to Australia’s lawful minimum pay rates. Enforcing compliance with workplace laws in this sector is a priority for the Fair Work Ombudsman.”