A Queensland restaurant has been fined $21,000 dollars by the Fair Work Ombudsman after underpaying a foreign worker and refusing to repay her because she “ate too much food”.
The Fire and Stone Restaurant at the Tangalooma Island Resort was found to have underpaid a Chinese worker a total of $1577 in just 19 days during 2014. Her correct pay rate under the Hospitality Industry Award is $21 per hour, and she was paid only $10 per hour.
The worker, who speaks limited English and is in her 20s, filed a complaint to the Fair Work Ombudsman, which investigated the situation.
According to the Ombudsman, Jia Ning Wang, the restaurant’s operator, told FWO inspectors the worker “ate too much food and used too much air-conditioning,” and refused to pay back the unpaid wages.
Further investigation from the FWO found the worker had been incorrectly classified as a contractor, and the operator had breached sham-contracting provisions.
The Ombudsman also said the business did not comply with standard record keeping and payslip laws, and failed to produce employment records when requested by the FWO.
The sham contracting section of the Fair Work Act states employers cannot “misrepresent an employment relationship or a proposed employment arrangement as an independent contracting arrangement.”
Breaching of these terms impose “serious penalties.” The Federal Circuit Court fined Wang $3500 and penalised her business Golden Vision Food and Beverage Services Pty Ltd a total of $17500.
Wang had previously been investigated and warned by the FWO over underpaying workers and breaching workplace law, following complaints from a number of previous workers
Judge Michael Jarrett, who adjudicated on the case, said Wang “had not displayed any genuine contrition or remorse.”
Jarrett also said that the penalties imposed should “serve as a warning to others that similar conduct can have serious consequences and ought not be repeated.”
The Fair Work Ombudsman Natalie James said in a statement her office would not tolerate the conscious exploitation of overseas workers.
“We treat alleged underpayment of visa-holders particularly seriously,” James said.
Ben Tallboys, senior associate at Russell Kennedy Lawyers, told SmartCompany he “did not see any reasonable basis” for Wang to dock her worker’s pay on account of them eating too much.
“Employers need to remember that they can’t decide for themselves which employee entitlements they will give, and which they won’t,” Tallboys says.
“If an employee is entitled to wages they should just be paid, unless the employer has a lawful right to make a deduction.”
The only way Wang could have deducted the workers pay due to overconsumption of food would have been through a written agreement organised prior to her employment, Tallboys says.
“You can only make a deduction when a specific law allows you to do so or the employee agrees in writing to the deduction, and the deduction is for the employees benefit,” Tallboys says.
“In this case there was no suggestion that the employee had authorised giving up their wages.”
Tallboys says it is common for employers to offer snacks in the workplace, but if an employee is eating too many, you might need to talk to them about it.
“If an employee abusing workplace benefits, the answer is to tell them to stop doing it,” he says.
“If they don’t, then the employer can take disciplinary action. The answer is not to start docking their wages.”
SmartCompany contacted Fire and Stone Restaurant but did not receive a response before publication.