Restaurant caught underpaying cook $45,000 after regularly making him work seven days a week – The SmartCompany

By Alan J. McDonald

A foreign employee has been back-paid $45,000 after Fair Work Ombudsman discovered he was working seven days a week for as little as $617 per week. McDonald Murholme Senior Associate Andrew Jewell commented emphasising that these overseas workers are particularly vulnerable to exploitation because they may not be aware of their rights.

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Restaurant caught underpaying cook $45,000 after regularly making him work seven days a week

A former employee at a Queensland restaurant has been back-paid $45,000 after the Fair Work Ombudsman discovered he was regularly working seven days a week, sometimes for as little as $617.

The Ni Hao Chinese Restaurant in Toowoomba sponsored the 25-year-old worker’s visa, promising he would be employed as a restaurant manager.

However, when the Malaysian national arrived in Australia, he was given a job as a cook.

Under this different role, the employee should have been paid according to the Restaurant Industry Award.

The Ombudsman found the Malaysian national should have been paid a total of $98,482 between November 2013 and January 2015, instead of the $52,678 he was actually paid.

The bulk of the underpayments were for unpaid overtime but the Ombudsman also found the worker was short-changed when it came to the correct hourly rate, penalty rates and annual leave entitlements.

The restaurant has since reimbursed the former employee and provided a written apology for its actions.

The business has also signed an enforceable undertaking and promised to engage an external accounting professional to audit its records in the future.

Fair Work Ombudsman Natalie James said in a statement the exploitation of vulnerable overseas workers is a particular area of focus for the employer watchdog.

“Employers simply cannot undercut the minimum lawful entitlements of their employees based on what they think the job may be worth or what the employee is happy to accept,” James said.

“We know workplace laws can be complicated for the uninitiated, but we ask businesses to use the tools and resources that we provide for them.

“We are committed to helping employers understand and comply with workplace laws, but operators need to make an effort to get the basics right in the first place.”

This case is just the “tip of the iceberg”

Andrew Jewell, senior associate at employment law firm McDonald Murholme, toldSmartCompany he is seeing a rise in the number of cases where international workers have been exploited.

“That doesn’t mean it wasn’t happening before, I just think now the ombudsman is more aware of it and getting involved,” Jewell says.

“It is happening a lot and, unfortunately, this is the tip of the iceberg. This one employer has been reasonably punished, but I don’t know if it is enough to stop others from doing what they are doing.”

Jewell says overseas workers are particularly vulnerable to exploitation because they may not be aware of their rights.

“For overseas workers, they’re not as aware of their ability to rely on a government organisation and they just don’t have the resources to enforce their private rights,” Jewell says.

“Then you’ve got this additional issue of a visa hanging over their head… so even if they know there’s an issue, they’ll often accept the situation because it means they will get closer to getting their visa.”

SmartCompany contacted the Ni Hao Chinese Restaurant in Toowoomba but did not receive a response prior to publication.

Reference: ‘Restaurant caught underpaying cook $45,000 after regularly making him work seven days a week’, SmartCompany, 3 December, 2015.