The Federal Circuit Court has found the former owners of Blue Moon Restaurant in western Sydney guilty of wage theft of an Indian employee on a 457 visa.
Highlights:
- The Federal Circuit Court has found the former owners of Blue Moon Restaurant in western Sydney guilty of wage theft.
- An Indian employee who worked at the restaurant between 2013 and 2016 was paid cash-in-hand.
- The court found that the employee was underpaid $153,352.
The court has ordered Rekha Thakadiyal Joseph to pay penalties of $63,600 and Jijo Thiruvankavil Esahac to pay penalties of $55,600.
The two owned the Blue Moon Restaurant at Wentworthville where the said employee worked between December 2013 and April 2016, on a contractual salary of $54,000.
However, according to the Fair Work Ombudsman, the owner paid the employee cash-in-hand wages “equating to only $400 to $450 per week, despite generally working 11-12 hours per day, six days per week, firstly as a kitchen hand and then as a cook.”
“Ms Joseph, on behalf of the partnership, set up a bank account, opened in the employee’s name, and deposited amounts consistent with his contractual salary, more than $1,600 per fortnight, into the account,” described the Fair Work Ombudsman in a statement.
“For the majority of the worker’s employment, Ms Joseph and Mr Esahac maintained overall control of the account, retaining the bank card and making transactions reducing the account’s funds.”
The court found that the employee was underpaid $153,352, “including for underpayment of ordinary hourly rates, overtime rates, and penalty rates for weekend and public holiday work owed under the Restaurant Industry Award 2010.”
Judge Douglas Humphreys said the conduct of the respondents was “particularly egregious, given that this was a clearly planned course of conduct which took place over a number of years and involved an extremely vulnerable employee. The Court considers the conduct of the [respondents] in exploiting, apparently, a member of their own ethnic community to be particularly concerning”.
Fair Work Ombudsman Sandra Parker said attempts to disguise the underpayment were unacceptable.
“Visa holders must receive the same minimum pay rates as every other employee in Australia and employers who blatantly underpay migrant workers will be found out. We will continue to take legal action to protect workplace rights, particularly where it involves vulnerable workers,” Ms Parker said.
The Court has ordered Rekha Thakadiyal Joseph and Jijo Thiruvankavil Esahac to pay interest on the back-payments.
FWO Assistant Media Director Matthew Raggatt said, "The underpayments (excluding interest) were rectified in August this year. The Court made orders on Wednesday, 28 October 2020, for pre-judgment interest to be paid on the underpayment amount previously rectified (in August), within 28 days."
"In terms of the pre-judgment interest percentage amount, the interest rate changes depending on the period of time. In this case the daily pre-judgment interest ranged from 4.25-5.25% of the underpayment amount."
Orders to back-pay wages and interest are additional to orders to pay penalties.
When contacted for a response, Jijo Thiruvankavil Esahac told SBS Hindi, "We accept the court's decision."
Employers and employees can visit www.fairwork.gov.au or call the Fair Work Infoline on 13 13 94 for free advice and assistance about their rights and obligations in the workplace. A free interpreter service is available on 13 14 50
