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The Fair Work Ombudsman has secured a court-ordered penalty against a Melbourne-based restaurant operator for failing to pay staff below minimum wage, casual loading, overtime rates and various other penalty rates.
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FWO secures $204k penalty order against restaurant operator over unpaid wages
02 June 2021
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The Federal Court on Tuesday issued Domain Botanical Business Pty Ltd, the operator of South Yarra-based Italian eatery Gilson Restaurant, with a penalty of $204,120.
The company’s sole director, James McBride, faces personal penalties worth $34,020, while the broader business faces a penalty of $170,100.
The company underpaid 40 of its employees a total of $53,850 between December 2017 and June 2018.
It paid its employees flat, hourly rates and failed to pay casual employees their entitled casual loading, overtime rates and various other penalty rates owed to them under the Restaurant Industry Award 2010.
Some employees were paid as little as $18 an hour — below minimum wage — while not being afforded adequate meal breaks.
The company was also found to have failed to keep records, including time records, and failed to undertake required reconciliations for full-time annualised salary employees.
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Judge Philip Burchardt pointed to the vulnerability of some of the workers left underpaid, more than half of whom were visa holders from non-English speaking backgrounds. Most were on student visas and working holiday visas and came from France, Brazil, Nepal and Chile.
About half of the underpaid visa-holding employees were aged 25 and under when they commenced work at Gilson Restaurant.
Fair Work Ombudsman Sandra Parker said the regulator prioritised matters involving young and migrant workers in the fast food, restaurant and cafés sector as a result of the ongoing compliance issues her office is seeing across the industry.
“The Fair Work Ombudsman does not tolerate the exploitation of any worker, including migrants who can be vulnerable due to factors such as limited English or little understanding of their rights under Australian law,” Ms Parker said. “All workers in Australia have the same rights, regardless of citizenship or visa status.
“Employers are urged to prioritise workplace law compliance or risk substantial court-ordered penalties on top of back-payments.
“Any employees with concerns about their pay or entitlements should contact us for free advice and assistance.”
In a written judgment, Judge Burchardt said of Mr McBride, “[i]f he was not deliberate in his breaches of the award obligations, he was, at the very least, wilfully blind to them”. His honour said that the timekeeping contraventions “strike at a matter central to the system of industrial regulation”.
“Equally, however, the failure to pay employees their wages and to give them their benefits under the award is also, in my view, of commensurate seriousness… bearing in mind the nature of the industry and the disadvantaged nature of the employees,” he said.
The FWO investigated the restaurant as part of an auditing campaign. The underpaid workers were generally engaged as kitchen attendants, waiters or cooks.
The company fully rectified underpayments in July last year after the FWO commenced litigation.
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