Former burger outlet operators penalised

21 December 2022

The Fair Work Ombudsman has secured $15,717.60 in penalties in court against the former operators of a burger outlet in Melbourne’s south-east.

The Federal Circuit and Family Court has imposed a $13,320 penalty against Benny842 Pty Ltd, which operated a restaurant in Pakenham trading as ‘Burger Boss’ until it ceased trading, and a $2,397.60 penalty against former company director Shane Dharmatilake.

The penalties were imposed in response to Benny842 Pty Ltd failing to comply with a Compliance Notice requiring it to back-pay entitlements to a food and beverage attendant, then aged 20, it employed between June and October 2020. Mr Dharmatilake was involved in the contravention.

The Court has also ordered Benny842 Pty Ltd to take the steps required by the Compliance Notice, including by back-paying the worker in full, plus superannuation and interest.

Fair Work Ombudsman Sandra Parker said business operators that fail to act on Compliance Notices need to be aware they can face court-imposed penalties on top of having to back-pay workers.

“When Compliance Notices are not followed, we are prepared to take legal action to ensure workers receive their lawful entitlements,” Ms Parker said.

“Employers also need to be aware that taking action to improve compliance in the fast food, restaurant and café sector continues to be a priority for the FWO. Any employees with concerns about their pay or entitlements should contact us for free advice and assistance.”

The FWO investigated after receiving a request for assistance from the affected worker.

The Compliance Notice was issued in December 2020 after a Fair Work inspector formed a belief the worker had been underpaid minimum wages, overtime rates, and penalty rates for weekend and public holiday work under the Restaurant Industry Award 2020, and annual leave entitlements under the Fair Work Act’s National Employment Standards.

Judge Amanda Mansini found that Benny842 Pty Ltd’s and Mr Dharmatilake’s failure to comply with the Compliance Notice was deliberate and serious.

Judge Mansini said there was a need to impose penalties to deter other employers in the café and restaurant industry from similar breaches.

Judge Mansini found that “general deterrence is important in the café and restaurant industry where there is evidence of regular instances of non-compliance with minimum wages and conditions.”

Employers and employees can visit or call the Fair Work Infoline on 13 13 94 for free advice and assistance about their rights and obligations in the workplace. An interpreter service is available on 13 14 50. Small businesses can find targeted resources at the Small Business Showcase and information is available for employees and employers at our fast food, restaurants and cafes webpage.

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