The Fair Work Ombudsman is taking an Oliver Brown café franchisee to Court alleging that 12 employees – including seven overseas workers – of the Oliver Brown chocolate café on the Gold Coast were underpaid more than $24,000.
Facing the Federal Circuit Court are the franchise company, Oliver Brown Soul Pty Ltd, which operates the Oliver Brown café at Surfers Paradise, and the café’s former manager Mr Steven Chung.
Seven of the employees were overseas workers, including four on 417 working holiday visas, with the others on a 457 skilled worker visa, 444 special category visa and a partner visa. Five of the workers were Korean nationals.
What went wrong?
The Fair Work Ombudsman alleges that workers were being underpaid the minimum rates for ordinary hours, casual loadings, and penalty rates for weekend, public holiday, late night and early morning work they were entitled to under the Restaurant Industry Award 2010.
The employees’ duties consisted of washing dishes, taking orders and making drinks and desserts. Four of the workers were juniors, including two aged 18, one aged 19 and another aged 20.
From January and September 2015, it is alleged that twelve casual workers were underpaid a total of $24, 575.
The largest underpayment was $9188 of an adult 417 visa-holder from Korea who was paid flat rates of between $10 and $16.48 for all hours worked, despite being entitled to receive casual rates of up to $23.09 for ordinary hours, $27.71 on weekends and $46.18 on public holidays, at the time.
One of the junior employees was paid flat hourly rates as low as $13 despite being entitled to receive casual rates of up to $16.16 for ordinary hours, $19.40 on weekends and $32.23 on public holidays.
Contraventions of pay slip requirements are also alleged.
Why the Ombudsman is taking action
All employees have been back-paid in full, however the Fair Work Ombudsman has commenced legal action because of the significant underpayment over a relatively short period and the involvement of a number of young, vulnerable workers and visa holders.
The exploitation of young, vulnerable workers is a serious issue and area of focus of the Fair Work Ombudsman, particularly as these workers are not aware of their rights and are often reluctant to complain.
The operators of the Gold Coast café, Oliver Brown Soul Pty Ltd, face penalties of up to $54,000 per contravention, while the café’s former manager faces penalties of up to $10,800 per contravention.
The Fair Work Ombudsman is also seeking Court orders for Oliver Brown Soul Pty Ltd to commission an audit of its pay practices and workplace relations training for managers.
This case serves as a reminder to employers to ensure that all workers are paid correctly in accordance with the Modern Award and National Employment Standards. Employers of non-Australian workers on visas need to be particularly vigilant when setting the terms and conditions of employment for the employee, because underpayment or other mistreatment of migrant workers can attract more severe penalties due to the added vulnerability of the worker.
Source: Fair Work Media Release “Sour deal for a dozen workers at Gold Coast chocolate cafe“, 26 June 2017