Restaurant operators penalised $204,120

1 June 2021

The Fair Work Ombudsman has secured court-ordered penalties against the operator of an Italian eatery, Gilson Restaurant, in the inner Melbourne suburb of South Yarra.

The Federal Circuit Court has imposed a $170,100 penalty against Domain Botanical Business Pty Ltd and $34,020 against James McBride, the company’s sole director.

The company admitted to having underpaid 40 employees a total of $53,850 between December 2017 and June 2018. Domain Botanical Business paid flat hourly rates, in some cases as low as $18 per hour, for its casuals which failed to meet minimum hourly rates, casual loading, overtime rates and various penalty rates owed under the Restaurant Industry Award 2010.

The company also did not provide adequate meal breaks, failed to keep records including time records, and did not undertake required reconciliations for full-time annualised salary employees.

Judge Philip Burchardt noted the vulnerability of some of the underpaid workers - over half were visa holders mostly from non-English speaking countries. They were mostly on student visas, working holiday visas or partner visas and came from countries including France, Brazil, Nepal and Chile, among others.

About half (14) of the underpaid visa holder workers were aged 25 or under when they began to 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 due to ongoing compliance issues.

“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. 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,” Ms Parker said.

In a written judgement, 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,” Judge Burchardt 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.

The Fair Work Ombudsman has an agreement with the Department of Home Affairs, called the Assurance Protocol, where visa holders with work rights can ask for our help without fear of their visa being cancelled. Information and conditions are available at our webpage for visa holder workers.

Employers and employees can visit or call the Fair Work Infoline on 13 13 94 for free advice about their rights and obligations. A free interpreter service is on 13 14 50.

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