The operators of an inner Sydney restaurant who were penalised almost $300,000 last year for exploiting overseas workers are again facing legal action, accused of further underpayments.
The Fair Work Ombudsman has commenced legal action in the Federal Circuit Court against the operators of the Mamak Malaysian restaurants, alleging they deliberately short-changed two Sydney employees and used false records to try to disguise the underpayments.
Facing Court are Joon Hoe Lee, Julian Lee and Alan Wing-Keung Au – who are the owner-operators of two Mamak restaurants in Sydney and one in Melbourne – and their company Mamak Pty Ltd.
The latest litigation relates to allegations that two workers at the Mamak restaurant at Chatswood, in Sydney, who worked between 2014 and 2016, were paid as little as $12 and $13 an hour, resulting in underpayments of their minimum hourly rates, casual loadings and penalty rates for weekend, public holiday and late night work.
One employee was an Australian citizen and worked as a waiter, while the other employee was a waitress from Singapore working in Australia on student and bridging visas.
The Fair Work Ombudsman investigated the complaints and now alleges Joon Hoe Lee, Julian Lee and Alan Wing-Keung Au and Mamak Pty Ltd were involved in further contravening workplace laws by providing inspectors with false records purporting to show that the two employees had been paid much higher rates than was actually the case. Contraventions of pay slip and record keeping laws are also alleged.
The litigation comes after the Fair Work Ombudsman last year secured $294,848 in penalties against the men and their company for underpaying six employees at the Mamak restaurant at Haymarket, in Sydney. In that case the employees – including five visa-holders – were paid as little as $11 an hour, resulting in more than $87,000 in underpayments under the Restaurant Industry Award from 2012 to 2015.
In handing down the penalties, Judge Justin Smith said that “all of the respondents knew that there was an Award but deliberately chose to ignore it in order to maximise profit”.
The Mamak operators admitted the contraventions in the first proceedings last year, back-paid those employees and gave sworn evidence in Court that their business had changed its practices to ensure future compliance.
The Fair Work Ombudsman alleges the underpayment of the two employees occurred while the first proceedings were before the Court and alleges other contraventions, including failing to comply with notices to produce and knowingly providing false records, occurred even after the penalties were imposed.
Fair Work Ombudsman Natalie James said it is concerning that there has been cause to initiate court action for a second time against a business owner, once again alleging underpayment of vulnerable workers.
Joon Hoe Lee, Julian Lee and Alan Wing-Keung Au face penalties of up to $10,800 per contravention and Mamak Pty Ltd faces penalties of up to $54,000 per contravention.
The Fair Work Ombudsman is also seeking Court Orders requiring Mamak Pty Ltd to provide the Fair Work Ombudsman with accurate pay records and to rectify the underpayments.
An injunction restraining Joon Hoe Lee, Julian Lee, Alan Wing-Keung Au and Mamak Pty Ltd from underpaying workers in future is also being sought. If the injunction is granted, they could face contempt of court proceedings if further underpayments are proven in court.
A directions hearing is listed in the Federal Circuit Court in Sydney on 20 June 2017.
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