The Fair Work Ombudsman has commenced legal action against the operators of a Vietnamese restaurant in Tasmania for alleged underpayments and cashback payments relating to two visa holder workers totalling more than $250,000.
Facing the Federal Circuit Court are Ms Xuan A Tran and Mr Quang Manh Dong, who operate 'Vina Yummy Kitchen' as a partnership in Sandy Bay, Hobart.
Fair Work Inspectors investigated after the married employees, who include Ms Xuan Tran's sister, lodged a request for assistance.
The Vietnamese nationals were allegedly recruited by Ms Xuan Tran and Mr Dong while in Vietnam and moved to Australia to work at Vina Yummy Kitchen from August 2015 to August 2019, with the partnership acting as a visa sponsor for Ms Xuan Tran's sister.
It is alleged that Ms Xuan Tran and Mr Dong breached the Fair Work Act 2009 by requiring the employees to repay a total $10,810 of their wages and entitlements in cashback payments.
It is alleged that one worker was underpaid minimum rates for ordinary hours, leave entitlements, and entitlements for weekend and overtime work owed under the Restaurant Industry Award 2010 and the Fair Work Act.
The FWO alleges the cashback payments and other underpayments resulted in the workers being underpaid a total of $250,312.
It is further alleged that Ms Xuan Tran and Mr Dong failed to make and keep records, did not give their workers any pay slips and provided the FWO with false records.
Under the reverse onus provisions of the Protecting Vulnerable Workers amendments to the Fair Work Act, the employers will be required – due to the alleged record-keeping and pay slip failures – to disprove the underpayment and cashback allegations if they contest the matter in court.
Fair Work Ombudsman Sandra Parker said matters that involve the alleged underpayment of visa holders are treated particularly seriously, as they may be vulnerable to workplace exploitation.
"The Fair Work Ombudsman will use all powers available to us to hold business operators to account when we encounter serious allegations that involve vulnerable workers," she said.
"All workers have the same rights in Australia regardless of nationality or visa status and anyone with concerns about their pay or entitlements should contact the FWO for free assistance," Ms Parker said.
The FWO is seeking court-imposed penalties against Ms Xuan Tran and Mr Dong, and court orders requiring them to backpay all the workers' outstanding entitlements, plus interest. Ms Xuan Tran and Mr Dong together face penalties of up to $12,600 per contravention. The partnership has repaid $6,157 to the workers.
A directions hearing is listed in the Federal Circuit Court in Hobart on 7 October 2021.
