The Fair Work Ombudsman has commenced legal action in the Federal Circuit Court against the former operators of a Sydney café
Facing court are JOR Trading Pty Ltd, which formerly operated 'A Little More Café' in Randwick, and the company's sole director Mr James O'Rourke.
The regulator investigated after receiving a request for assistance from a former employee.
A Fair Work Inspector issued a Compliance Notice to JOR Trading Pty Ltd in September 2020 after forming a belief the company had failed to correctly pay the employee, who was allegedly paid flat rates of $24 or $26 an hour.
The inspector believed the employee, who worked on a casual basis at the café as a food and beverage attendant from May 2019 to March 2020, was underpaid casual minimum wage rates and weekend penalty rates owed under the Restaurant Industry Award 2010.
The FWO alleges the company, without reasonable excuse, failed to comply with the Compliance Notice, which required it to calculate and back-pay the worker's entitlements.
Mr O'Rourke is alleged to have been involved in the company's non-compliance with the notice.
In line with the FWO's proportionate approach to regulation during the COVID-19 pandemic, the FWO made several attempts to secure voluntary compliance before commencing legal action.
Fair Work Ombudsman Sandra Parker said the regulator would continue to enforce workplace laws and take businesses to court where lawful requests are not complied with.
"Compliance Notices are important tools used by inspectors to deal with apparent contraventions of the Fair Work Act or industrial instruments, most typically Modern Awards," Ms Parker said.
"Where employers do not respond to or comply with these Notices, we will take appropriate enforcement action to protect employees. A court can order a business to pay penalties for not complying with such a Notice, in addition to back-paying workers as appropriate."
"Any employees with concerns about their pay or entitlements should contact the Fair Work Ombudsman for free assistance."
The FWO is seeking penalties against JOR Trading Pty Ltd and Mr O'Rourke. The regulator is also seeking a court order for the company to comply with the Compliance Notice, which includes rectifying any underpayments in full, plus superannuation and interest.
The company faces a maximum potential penalty of $33,300 while Mr O'Rourke is facing a maximum potential penalty of $6,660. A directions hearing has been listed in the Federal Circuit Court in Sydney on 23 February 2021. The café is no longer operating.
