Restaurant franchise grilled over pay
Launceston husband and wife, Priscilla Li Peng Lam and David Wing Leong Lam, who own and manage Dave’s Noodles in Launceston’s CBD, have each been fined $15,000 after admitting a Chinese chef at their restaurant was underpaid $86,118.
The couple’s company, ECFF Pty Ltd, has been penalised a further $70,000 and ordered to fully rectify the underpayment of the chef, who has so far been back paid only $50,000.
The Lams are also the franchisors of Dave’s Noodles outlets in Hobart, Burnie, Kingston, Moonah, and Mowbray.
The fines and back payment order, imposed by the Federal Circuit Court, are the result of legal action by the Fair Work Ombudsman.
The Fair Work Ombudsman investigated after the chef , who the Lams sponsored to come to Australia on a 457 work visa, lodged a complaint with the assistance of an interpreter.
Fair Work inspectors found the chef, aged in his 40s, had been paid flat weekly wages ranging from $804 to $913 between 2008 and 2011 based on a 38-hour week, despite being required to work 60 hours a week.
The situation resulted in underpayment of the chef’s minimum hourly rate and penalty rates for overtime, night, weekend, and public holiday work.
Judge Norah Hartnett described the contraventions as “a very substantial underpayment of basic entitlements over an extended period of time”.
Judged Hartnett also found that the underpayments were “significantly aggravated” by the Lams creating false time and wages records showing that the chef had worked 38 hours a week and providing the false records to Fair Work inspectors.
“The creation of false time and wages records by the respondents was particularly disturbing behaviour, worthy of significant reprimand,” Judge Hartnett said.
Judge Hartnett said the conduct occurred in circumstances where the chef – who is now an Australian citizen – was a “vulnerable person” who was “highly reliant on the respondents to remain in Australia”.
“The employee was directed by (Mr and Mrs Lam) to sign those time and wages books at intervals of around three to four months on the basis that they were needed for immigration purposes,” Judge Hartnett said.
Fair Work Ombudsman, Natalie James, says the penalties reflect the Court’s concern about underpayment of vulnerable foreign workers and attempts to mislead Fair Work inspectors.
“The small minority of employers who are inclined to contravene the rights of vulnerable workers should be aware that they can face significant financial consequences for such behaviour,” Ms James said.