The Fair Work Ombudsman has commenced legal action in court against the operator of a Brisbane café alleging breaches including that employees were partially paid in food and drink.
Facing the Federal Circuit Court are 63 Racecourse Rd Pty Ltd, which operated a café trading as ‘Café 63 Racecourse Rd’ in Hamilton Central, and the company’s sole director and shareholder, Hamish Watson.
The FWO alleges breaches in two separate periods: August 2017; and November 2017-to-January 2018.
The FWO alleges that in the first period employees at Café 63 Racecourse Rd were underpaid a total of $36,663, primarily as a result of being underpaid various rates and entitlements under the Restaurant Industry Award 2010. It is alleged that Mr Watson was involved in these breaches.
The FWO alleges that in the second period employees were partially paid in food and drink.
FWO alleges that in the second period employees at Café 63 Racecourse Rd were paid according to Individual Flexibility Agreements (IFAs) that provided for flat hourly rates and ‘allowances’ – instead of being provided penalty rates and overtime rates under the Restaurant Industry Award 2010.
It is alleged the ‘allowances’ in the IFAs included a daily allowance of food and drink up to the value of $35 per day, including $20 in meals and $15 in drinks.
FWO alleges that the conduct of 63 Racecourse Rd Pty Ltd breached the provision of the Fair Work Act requiring that employees be paid in money. It is alleged that Mr Watson was involved in this breach.
The FWO also alleges that 63 Racecourse Rd Pty Ltd breached workplace laws relating to requirements that must be met when entering into IFAs with employees.
Most of the 32 allegedly underpaid workers were visa holders who worked as cooks, kitchen attendants and food and beverage attendants.
Fair Work Ombudsman Sandra Parker said that inspectors investigated after receiving underpayment allegations.
“Improving compliance with workplace laws in the fast food, restaurant and cafe sector, which employs many vulnerable workers, continues to be a priority for the Fair Work Ombudsman.”
“All workers in Australia have the same rights at work regardless of nationality or visa status. Anyone with concerns about their pay or entitlements should contact us,” Ms Parker said.
63 Racecourse Rd Pty Ltd faces maximum penalties per breach of up to $63,000, while Mr Watson face maximum penalties per breach of up to $12,600.
The FWO is also seeking a court order requiring the company and Mr Watson to back-pay employees in full less any back payments that have already been made.
A directions hearing is listed in the Federal Circuit Court in Brisbane on 16 October, 2020.
NOTE: FWO’s legal action against Timi Trading Pty Ltd, which operates Café 63 Chermside, Mr Watson and two other individuals remains before the Court.
Employers and employees can visit www.fairwork.gov.au or contact the Fair Work Infoline on 13 13 94 for free workplace advice.