Married couple Priscilla Li Peng Lam and David Wing Leong Lam, who are the operators of Dave’s Noodles in Launceston’s CBD, were both individually fined $15,000 following their admission that a Chinese chef whom they had employed was underpaid by $86,118.
The Lams’ company, ECFF, was also ordered to pay $70,000 as well as fully reimburse the chef who had only been back-paid $50,000.
The couple are also have Dave’s Noodles franchises in Hobart, Burnie, Kingston, Moonah and Mowbray.
Investigations by the Fair Work Ombudsman (FWO) into the employers’ operations began after the chef – who was sponsored by the couple to enter Australia on a 457 work visa – filed a complaint, for which he had to use an interpreter.
Fair Work inspectors found that the chef, who was in his 40s, had been paid flat weekly wages from $804 to $913 between 2008 and 2011. This was found by the FWO to be based on a 38 hour week – despite the chef’s weekly working hours consistently reaching sixty. Consequently, the employee was not paid the minimum hourly rate and penalty rates to which he was entitled.
Judge Norah Hartnett describe the Lams’ actions as “a very substantial underpayment of basic entitlements over an extended period of time,” adding that this was “significantly aggravated” by the couple’s creation of false time-and-wages records showing that the chef had worked 38 hours a week and providing these to inspectors.
“The creation of false time and wages records by the respondents was particularly disturbing behaviour, worthy of significant reprimand,” Judge Hartnett said, and the chef – who is now an Australian citizen – had been a “vulnerable person” who was “highly reliant on the respondents to remain in Australia”.
“The employee was directed by (Mr and Mrs Lam) to sign those time and wages books at intervals of around three to four months on the basis that they were needed for immigration purposes,” she said.
The penalties issued by the judge are a reflection of the Court’s concern about the underpayment of vulnerable foreign workers and attempts to mislead Fair Work inspectors, said Fair Work Ombudsman Natalie James.
“The small minority of employers who are inclined to contravene the rights of vulnerable workers should be aware that they can face significant financial consequences for such behaviour,” she said. “Successful litigations such as this also help to create a level playing field for the majority of employers who are committed to doing the right thing by their employees.”
James added that the FWO places a high priority on the protection of overseas workers’ rights, who are often vulnerable due to being unaware of their rights or reluctant to complain.
Operators of a fast food restaurant in Tasmania were recently fined $100,000 for exploitative behaviour dubbed “particularly disturbing” by a Federal Circuit Court judge.