A Malaysian worker that was brought over to regional Queensland to work as a restaurant manager was underpaid over $45,000 and employed as a cook.
According to Fair Work, the 25 year old employee routinely worked seven days a week during his employment at Toowoomba’s Ni Hao Chinese Restaurant, and receive as little as $617 per week for his efforts.
The employee was sponsored by the restaurant’s owner, David Zhou on a 187 visa under the Regional Sponsored Migration Scheme to work as a restaurant manager with an annual salary of $45,000 plus superannuation. However once the employee commensed his employment, he was told that he would be working as a cook.
Fair Work became aware of the situation following a request for help from the employee.
Zhou initially refused to cooperate with the Fair Work Ombudsman by declining to participate in a Record of Interview to explain the nature of the worker’s employment and the underpayment of wages. The worker however kept a record of his hours, allowing Fair Work to calculate his entitlements between November 3, 2013 until 18 January, 2015.
As a cook, the worker should have been paid under the Restaurant Industry Award and received a total of $98,482 for the period, instead of the $52,678 he was actually paid. Fair Work found that the worker was short-changed his hourly rate, overtime, evening, weekend and public holiday penalty rates, split shift allowances and annual leave entitlements with the bulk of the underpayments being a result of unpaid overtime.
The restaurant also failed to issue the worker with a Fair Work Information Statement when he started, as required under the National Employment Standards, and did not keep adequate staff records or issue pay-slips.
Following the investigation, Zhou has now fully reimbursed his former employee all outstanding wages and entitlements and provided a written apology expressing “sincere regret” for the conduct. Zhou has also signed an Enforceable Undertaking that requires him to:
- Engage an external accounting professional to conduct audits of employee entitlements for November, 2015 and July, 2016,
- Register with the Fair Work Ombudsman’s online tool My Account and demonstrate capability to inspectors, subscribe to email alerts and employer newsletters, and
- Implement systems and processes to ensure future compliance with workplace laws.
“Employers simply cannot undercut the minimum lawful entitlements of their employees based on what they think the job may be worth or what the employee is happy to accept,” said Fair Work Ombudsman Natalie James.
“…We know workplace laws can be complicated for the uninitiated, but we ask businesses to use the tools and resources that we provide for them.
“We are committed to helping employers understand and comply with workplace laws, but operators need to make an effort to get the basics right in the first place.”
