SmartCompany, February 7 2017:
The operators of three Japanese-style restaurants in Brisbane have been fined over $200,000 for underpaying workers.
As a result of action by the Fair Work Ombudsman, business operators Iee Wee Song and Siew Lay Yeoh were fined $40,500 and $32,000 respectively in the Federal Circuit Court last year.
It was found their businesses underpaid five workers a total of $148,170 between 2011 and 2014, with the highest amount not paid to a single worker exceeding $45,000.
The five individuals were paid base rates as low as $10 per hour resulting in underpayments of casual loadings, minimum hourly rates, shift allowances, annual leave entitlements and penalty rates for weekends, nights and public holidays.
In addition to fines handed down to the operators, the court also fined two of the companies, Tsuyoetsu Pty Ltd and Taikuken Pty Ltd. The fine amounts were $99,000 and $29,200 respectively.
Laws regarding record keeping and requirements for employers to inform employees of employment classification were also found to have been breached.
In the judgement, Judge Salvatore Vasta criticised the operators for their treatment of the visa-holding Taiwanese and Malaysian workers that were underpaid, highlighting the operators’ own backgrounds as Malaysian migrants.
“It may be said that the Respondents themselves had come from Malaysia and that the workers were Malaysian, but what that means is there is a deal of responsibility for those who are dealing as employers in Australia undertaking what is fair and just in Australia as far as compliance with the legislation,” Vasta said in the judgement.
“There is an obligation on them to ensure that workers from a similar culture to the employers are not exploited.”
“It would seem that if someone from a particular culture comes to Australia and is employed by somebody else from the same background, there would be an automatic level of trust and comfort in that fact. In many ways, by not complying with the law of this country there has been an exploitation of the five workers that is extremely serious.”
Vasta’s comments signify the recent efforts made by the FWO to crack down on exploited overseas workers, breaches Fair Work Ombudsman Natalie James says she is “increasingly concerned about”.
“I want to make it clear that the lawful obligations to pay minimum wage rates, keep appropriate employment records and issue pay slips apply to all employers in Australia and they are not negotiable,” James said in a statement.
“Overseas workers are entitled to the same wages as Australian citizens and we are actively seeking to dispel the myth that it’s OK to pay overseas workers a ‘going rate’ that undercuts the lawful minimum wage rates that apply in Australia.”
FWO crackdown will continue, expert says
Employment lawyer with TressCox Lawyers Peta Tumpey told SmartCompany she believes the FWO’s recent focus on overseas workers is an “upwards trend” that will continue. Although the fines represented in the case are significant, Tumpey believes they are becoming more commonplace.
“Currently these fines are out of the ordinary, but this is the start of an upward trend by the FWO. There’s so much exploitation of workers from outside of Australia I think they’re starting a real campaign to chase them down,” Tumpey says.
“I think it’s the start of something bigger, something quite extraordinary.”
One concession made by the operators in court was they had little experience with business in Australia, and had “a level of naivety about their setting up of a business”. Vasta did not accept these excuses.
“It does seem that for people with a level of naivety, they were able to set up one business and then incorporate and set up another business and then incorporate and set up a third business, so the level of naivety has to be seen in that light,” Vasta said in the judgement.
Tumpey agrees, claiming the FWO is “a bit tired” of these excuses.
“At the end of the day, they are operating a business, and they’ve obviously employed a number of employees.”
In order to prevent more cases of underpaying vulnerable workers, Tumpey believes both the employer and employee must be educated through powerful examples by the FWO.
“To educate employees coming over to Australia we need to have more hard judgements like this published in the media. They’re not going to pick up a handbook and read about Awards,” she says.
“Employers in Australia are clearly very slow on the uptake as they’re still operating in these ways. No one can think it’s fair to pay a base wage of $10.”
SmartCompany was unable to contact Iee Wee Song and Siew Lay Yeoh prior to publication.