Brisbane sushi restaurant faces court

The Fair Work Ombudsman has commenced action against the operators of a Brisbane sushi restaurant, alleging over 30 employees were underpaid and that documents and records were falsified.

The FWO has commenced proceedings in the Federal Circuit Court against Delishesco Pty Ltd, which operates Moga Izakaya & Sushi, a sushi bar and restaurant based at Paddington in Brisbane. Also facing court is the company’s sole director Yinan Yang, who manages the restaurant.

The regulator alleges that Delishesco paid employees flat rates below minimum entitlements, resulting in 34 employees being underpaid a total of $75,716 under the Restaurant Industry Award 2010 and the Fair Work Act’s National Employment Standards between 1 December 2018 and 31 March 2019.

It is alleged that eight of the underpayment contraventions meet the definition of ‘serious contraventions’ under the Protecting Vulnerable Workers amendments to the Fair Work Act due to the alleged deliberate and systematic nature of the conduct. It is also alleged that Delishesco had previously been formally cautioned for underpaying employees.

Fair Work Ombudsman Sandra Parker said that it is the sixth matter where the FWO has alleged the increased maximum penalties should apply – the first in Queensland.

“Employers are on notice that we will protect vulnerable workers by ensuring that any individuals or companies who allegedly commit serious contraventions are held to account. Maximum penalties for serious contraventions are $630,000 per breach for companies and $126,000 per breach for individuals.”

The FWO discovered the alleged underpayments after receiving requests for assistance from employees and commencing an investigation.

The 34 employees were allegedly underpaid minimum wage rates or casual loadings, with a number of employees underpaid their overtime rates, penalty rates for weekend, public holiday and night work, and split-shift allowances.

Most of the employees were visa holders, with many on 417 working holiday visas. Some of the employees were young workers, aged between 19 and 24.

“All workers in Australia have the same rights, regardless of nationality and visa status. Anyone with concerns about their pay or entitlements should contact us for free assistance,” Ms Parker said.

The employees had various roles at Moga Izakaya & Sushi, including being engaged as wait staff, cooks, kitchenhands and dishwashers.

Individual alleged underpayments range from $58 to $9588. Following the FWO commencing court action, the total alleged underpayments have been partially rectified.

The FWO also alleges that Delishesco provided records containing falsified employee pay rates and work hours to the Fair Work Ombudsman. Laws relating to written agreements for part time hours, record-keeping and pay slips were allegedly also breached. It is alleged Mr Yang was involved in all of Delishesco’s contraventions.

For the alleged serious contraventions under the Protecting Vulnerable Workers laws, which came into effect in September 2017, the maximum penalties are $630,000 per breach for Delishesco and $126,000 per breach for Mr Yang, 10-times the penalties which would ordinarily apply.

For the other alleged contraventions, Delishesco faces penalties of up to $63,000 per breach and Mr Yang faces penalties of up to $12,600 per breach.

In addition to the penalties, FWO is seeking a court order requiring Delishesco and Mr Yang to back-pay the employees in full.

A directions hearing is listed in the Federal Circuit Court in Brisbane on 29 June 2021.

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