The former manager of an Oliver Brown chocolate caf_ outlet on the Gold Coast has been penalised $27,200.
The manager, Steven Chung, was fined in the Federal Circuit Court after he admitted being involved in the underpayment of 12 employees at the Oliver Brown caf_ at Surfers Paradise.
The employees were underpaid a total of $24,575 between January and September, 2015 – and Chung was involved in the underpayments that occurred from 11 July, when he started as manager.
Seven of the employees were overseas workers, including five Korean nationals. Four were on 417 working holiday visas, with the others on a 457 skilled worker visa, 444 special category visa and a partner visa.
There were also four juniors among the 12 underpaid workers, including two aged 18, one aged 19 and another aged 20.
Judge Salvatore Vasta said the caf_ “was an enterprise in which Mr Chung quite deliberately calculated to see what it was that he could ‘get away with’.”
Judge Vasta said Chung, who was responsible for hiring staff and setting wage rates, “discriminated against a number of the employees, on, it would seem, the basis either of coming from a non-English speaking background, having a visa or their youth”.
“There doesn’t appear to be any other explanation as to why there were some rates given to some people and other rates to others, except when one looks at the personal and cultural background of the workers,” Judge Vasta said.
Chung used different low flat rates that resulted in workers variously being underpaid the minimum rates for ordinary hours, casual loadings, and penalty rates for weekend, public holiday, late night and early morning work they were entitled to under the Restaurant Industry Award 2010.
Judge Vasta found that the rate of underpayment, extrapolated over the course of a year, would have resulted in underpayments in the order of $80,000.
“For any business to be, in effect, saving $80,000 in employee entitlements would give them a significant advantage over businesses that were mindful and respectful of their legal obligations to ensure that workers were properly paid,” Judge Vasta said.
Judge Vasta said the failure to provide pay slips to four of the workers was an “extremely serious breach of an employer’s obligations” and also showed a “level of discrimination by Mr Chung as to whom he gave pay slips and to whom he did not”.
Fair Work Ombudsman inspectors discovered the underpayments when they conducted an audit after a worker made underpayment allegations.
The workers were back-paid in full late last year.