Fines imposed over underpayment of foreign cook at Melbourne restaurant

25 April 2013

The former managers of a Melbourne restaurant have been fined a total of $35,100 for underpaying a foreign worker employed as a cook.

Zhu Chang Rong and Tao Moqin - who were formerly part-owners and managers of Hongyun Chinese Restaurant on Bourke Street, in the Melbourne CBD - have been fined $19,500 and $15,600 respectively.

The fines have been imposed in the Federal Circuit Court in Melbourne after a Chinese national employed as a cook at the restaurant was underpaid $14,927 between June, 2010 and May, 2011.

The fines were imposed after Zhu and Tao admitted being centrally involved in most of the underpayments of the employee, a Chinese national aged in his 40s who speaks little English and was in Australia on a bridging visa at the time.

Fair Work Ombudsman Group Manager, Michael Campbell, says the Court's decision sends a message that underpaying foreign workers is a particularly serious matter.

"Foreign workers can be vulnerable if they are not fully aware of their rights or are reluctant to complain," Mr Campbell said.

"We do not hesitate to take the necessary compliance action when we find cases of foreign workers being blatantly underpaid. Underpayments of foreign workers in Australia will not be tolerated."

The employee, who is now a permanent resident, generally worked seven-days a week, working between 30 and 55 hours.

He was paid a flat rate of $11.50 for all hours worked, but was entitled to receive more than $15 an hour for normal work and more than $20 an hour for some weekend, overtime and public holiday work.

Superannuation and annual leave entitlements were also underpaid.

The Fair Work Ombudsman discovered the underpayments when it investigated a complaint lodged by the employee.

Judge Heather Riley has ordered that part of the fines go towards rectifying the underpayment of the employee, who has been only partially back-paid to date.

In imposing the fines, Judge Riley said there was a need for significant levels of both general and specific deterrence.

"There is a significant risk of underpayments in the restaurant industry," Judge Riley said.

"The contraventions in this case resulted in a very significant underpayment of a particularly vulnerable worker."

Judge Riley said there was no indication Zhu and Tao had acted on their responsibility to ascertain the relevant entitlements payable and that "there is no real indication of remorse or an understanding of their wrongdoing".

"It is incumbent upon employers to make all necessary enquiries to ascertain their employees' proper entitlements and pay their employees at the proper rates," Judge Riley said.

Employers and employees seeking assistance should visit www.fairwork.gov.au or contact the Fair Work Infoline on 13 13 94. A free interpreter service is available on 13 14 50.

Media inquiries:

Ryan Pedler, Assistant Director, Media & Stakeholder Relations,
(03) 9954 2561, 0411 430 902
media@fwo.gov.au

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