$72 000 in penalties after international student exploited, dismissed by text message
27 March 2017
The operator of a Queensland resort restaurant has been penalised for his “deliberate and calculated” conduct in exploiting a young international student and dismissing her by text message because she refused to accept below-Award wages.
Jia Ning Wang, who owns and operates the Fire and Stone Restaurant on Moreton Island, has been penalised $20,366 - and his company Golden Vision Food and Beverage Services Pty Ltd has been penalised an additional $51,830.
Wang also faces potential criminal charges for any future underpayments with the Federal Circuit Court imposing an injunction restraining Wang and his company from short-changing employees under the Hospitality Industry (General) Award 2010 in future.
It is the second time the Fair Work Ombudsman has secured penalties against Wang and his company after they were last year penalised a total of $21,000 for paying a young Chinese backpacker just $10 an hour.
In the most recent matter, an American student performed 69.75 hours of waitressing work at Wang’s restaurant over a two-week period in December 2014.
After the student, then aged 21, refused to agree to Wang’s offers to be paid amounts that undercut her minimum entitlements Wang threatened to terminate the student’s employment and told her the Award was “just a guideline” and that $20 per hour was the “standard minimum wage across the industry”.
Wang later sent the employee a text message terminating her employment, stating that the employment “was not working out” and that “technically you don’t work for us”.
Wang failed to pay the student for any of the work she performed. The student complained and the Fair Work Ombudsman contacted Wang.
After initially denying the allegations and denying his company employed the student, Wang admitted contravening workplace laws and his company finally back-paid $1963 in wages owed, almost a year after the wages were due.
In addition to the underpayment contraventions, the threat to terminate the student’s employment and the actual termination contravened the section of the Fair Work Act that makes it unlawful to take adverse action against an employee for exercising a workplace right, such as the right to receive minimum entitlements and the right to inquire about entitlements.
Wang and his company also contravened the section of the Fair Work Act that makes it unlawful for an employer to recklessly or deliberately make a false or misleading representation to an employee about their workplace rights.
In his judgment, Judge Michael Jarrett described the contraventions as “serious”, saying that “the conduct of the respondents that constitute the contraventions was plainly deliberate and calculated”.
Judge Jarrett noted that the conduct occurred despite Wang having been “put on notice” to pay employees’ minimum lawful entitlements in the context of Fair Work Ombudsman investigations of underpayment allegations dating back to 2011.
“I think the background is also relevant because it demonstrates that Golden Vision or Mr Wang seems to have done little to change their business practices,” Judge Jarrett said.
“The respondents should be left in no doubt that its conduct and treatment of (the student) was an extremely serious contravention of Australian workplace laws.”
Judge Jarrett said the penalties imposed should also “serve as a warning to others that similar conduct can have serious consequences and ought not be repeated”.
Judge Jarrett praised the resilience of the student, who gave evidence that she found pursuing her wages “mentally exhausting” and that she had called her mother in tears after Wang threatened to dismiss her “because I didn’t want to lose my job for doing the right thing and standing up for myself and my rights”.
Judge Jarrett said: “laudably (the student) revealed herself to be very proactive and effective in looking out for her own interests. (Mr Wang’s) attempts to take advantage of her youth and her status as a visitor to this country were ineffective”.
Acting Fair Work Ombudsman Michael Campbell says the Court’s decision sends a message that exploiting international students is serious conduct with serious consequences.
“Australia’s minimum pay rates apply to everyone including visa holders, they are not negotiable,’’ Mr Campbell said.
“Employees should feel safe in the knowledge that they will not suffer a detriment or lose their job for asking to be paid in accordance with the law.”
Mr Campbell says the case also highlights that for young and overseas workers, one of the best defences against being exploited is an awareness of their workplace rights.
“This young student deserves the utmost praise for informing herself of what her work rights were in Australia and standing-up to an employer seeking to exploit her,” he said.
Mr Campbell says the Fair Work Ombudsman is committed to improving compliance in the hospitality industry. The Agency’s three-year National Hospitality Industry Campaign, finalised last year, recovered more than $2 million for underpaid employees.
Employers and employees seeking assistance can visit www.fairwork.gov.au or contact the Fair Work Infoline on 13 13 94. An interpreter service is available by calling 13 14 50 and information on the website, which includes fact sheets and tips for international students, is translated into 27 different languages.
Resources for employers on the website include a Pay and Conditions Tool (PACT) that can be used to determine the pay rates applicable to employees, including base pay rates, allowances, overtime and penalty rates.
In recognition that some employees are reluctant to complain about their workplace issues, the Fair Work Ombudsman now has an “Anonymous Report” function to allow the community to report potential workplace breaches. Intelligence can be provided confidentially at www.fairwork.gov.au/tipoff.
The Fair Work Ombudsman has released the ‘Record My Hours’ app aimed at tackling the persistent problem of underpayment of young workers and migrant workers around the country. The app, which equips workers with a record of the time they spend at their workplace by using geofencing technology to register when they arrive at work and when they leave, is available for download from iTunes or Google Play stores.
For information about the previous penalty against Wang and his company, read the media release: Restaurant penalised over underpayments.
Follow Fair Work Ombudsman Natalie James on Twitter @NatJamesFWO , the Fair Work Ombudsman @fairwork_gov_au or find us on Facebook www.facebook.com/fairwork.gov.au .
Sign up to receive the Fair Work Ombudsman’s media releases direct to your email inbox at www.fairwork.gov.au/mediareleases.
Ryan Pedler, Assistant Director - Media
Mobile: 0411 430 902
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