FWO alarmed over alleged systemic pattern and deliberate nature of underpayments
The husband-and-wife operators of two Vietnamese eateries in Adelaide are facing legal action for allegedly underpaying their workers a total of $407,546.
The Fair Work Ombudsman (FWO) initiated the legal proceedings, which also includes accusations of breaching pay slip and record-keeping laws, use of falsified records, and imposing unlawful deductions and requirements on employees.
According to the FWO, Viet Quoc Mai and his wife Huong Le underpaid 36 workers between January 2018 and September 2021.
Inspectors discovered the underpayments during surprise audits in April 2021, where they found alleged breaches of the Restaurant Industry Award 2010, Restaurant Industry Award 2020, and Fast Food Industry Award 2010.
Most of the underpaid employees were Vietnamese international students under the age of 25, including five who were juniors aged between 18 and 20 at the time, according to the FWO.
The range of the alleged underpayments were between $74 and $58,592. Fifteen of the affected employees were allegedly underpaid more than $10,000.
The affected employees were hired in casual roles as kitchen attendants, customer service, and bar and waitstaff roles for the 'Mr Viet' restaurant in Adelaide's Rundle Mall and a food court outlet in the Chinatown precinct, which were operated by the couple.
How employees were underpaid
The FWO alleges that the workers' wages were paid using two different hourly rates, a combination of a variable flat hourly rate deposited into their bank accounts and a flat $15 cash-in-hand rate.
According to the FWO's allegations, Mai would add the number of hours an employee worked in the fortnight and would pay some of the hours using the bank transfer rate. After that, he would pay the worker cash for the remaining hours in the pay period.
Through such steps, the employees were underpaid in their minimum wages, casual loading, as well as penalties for working weekends, public holidays, and overtime. There were also unpaid entitlements when meal breaks were not provided.
"About 70% of the alleged underpayments sum related to minimum wages and casual loading," the FWO said in a media release.
'Alarming' alleged breaches
The FWO also accused Mai of making unlawful deductions for various reasons, including leaving a fridge open over the weekend, breaking a door, and incorrectly charging a customer.
The couple also allegedly subjected workers to a 'strike' system and forced those with six 'strikes' to purchase food and beverages for the owners and staff.
Mai also allegedly failed to provide pay slips to employees and failed to make certain records, according to the FWO, adding that he also provided inspectors almost 100 pay slips that failed to show cash payments.
"The alleged systemic pattern and deliberate nature of the underpayments, providing of false records to frustrate an investigation, and the significant number of breaches in this matter are alarming," said Fair Work Ombudsman Anna Booth in a statement.
The FWO is seeking penalties against the couple for multiple alleged contraventions, with Mai and Le each facing penalties of up to $133,200 for serious contraventions and up to $13,320 for other alleged violations.
The FWO is also seeking a court order for Mai to rectify the underpayments, as majority of them allegedly remain unpaid more than two years after they were owed.
The case is set for a directions hearing in the Federal Court in Adelaide.
"Employers who allegedly exploit their workers and attempt to mislead inspectors will be found out and risk facing significant penalties," Booth warned.
"We treat cases involving the underpayment of migrant and young workers particularly seriously, because they can be vulnerable due to factors such as a lack of awareness of their entitlements and a reluctance to complain."
