AUSTRALIA | Vietnamese eateries in Adelaide have been the subject of an FWO investigation following allegations that migrant workers were underpaid.
The Fair Work Ombudsman has secured more than AUD 802,000 in court penalties and compensation after the husband-and-wife operators of two Vietnamese eateries in Adelaide underpaid migrant workers, including forcing them to buy their bosses bubble tea.
The Federal Court has ordered that Mr Viet Quoc Mai back-pay AUD 407,546, plus interest and superannuation, owed to the 36 workers he underpaid as the operator of a ‘Mr Viet’ restaurant in Adelaide’s Rundle Mall and a food court outlet in Adelaide’s Chinatown precinct.
In addition, the Court has imposed a AUD 265,000 penalty against Mai and a AUD 130,000 penalty against his wife and manager of the ‘Mr Viet’ eateries, Huong Le, for her involvement in the contraventions.
The penalties were imposed for a range of contraventions, including giving false records to Fair Work Inspectors; underpaying or not paying minimum rates, weekend and public holiday loading, and overtime rates; failing to compensate employees for taking no meal breaks; and employees being unreasonably required to spend their own money.
The underpaid workers were mostly Vietnamese international students aged under 25, who the couple, themselves Vietnamese nationals, paid as little as AUD 15 an hour when they were employed between January 2018 and September 2021. Five of the workers were junior employees aged from 18 to 20 at the time.
The workers were casuals, engaged as kitchen attendants and bar and waitstaff, and in customer service roles. Mai and Le underpaid individual workers' amounts ranging from AUD 75 to AUD 58,592.
With regard to the unreasonable requirements to spend their money, Mai had a “strike board system” to punish employees for mistakes they made at work. After six strikes against an employee’s name, that employee would be made to go and buy food and beverages for Mai, Le, and/or other employees working at the time.
As one example, in October 2020, an employee was dispatched to buy bubble teas for Le and the other employees working in the restaurant that Saturday and the following Monday. In February 2021, an employee was made to transfer more than AUD 50 to Le’s personal bank account for the purchase of bubble teas, also for Le and the other workers. The court ruled this was unreasonable in the circumstances.
Mai also took money out of his employees’ pay packets for claims they incorrectly charged a customer, and for failing to properly close a refrigerator door. The court found that those deductions were not authorised and therefore contravened the law.
Workplace laws relating to record-keeping and issuing pay slips were also breached, including by giving false records to inspectors. Mai even tried to make the regulator believe he was back-paying his workers, giving one of them AUD 10,000, which he then made the worker withdraw and give back to him in what Justice Stephen McDonald called a “calculated and dishonest course of conduct”.
Fair Work Ombudsman Anna Booth said the contraventions were disgraceful.
“These substantial penalties highlight that exploiting vulnerable migrant workers is particularly reprehensible conduct that will not be tolerated in Australia,” Booth said.
“If you exploit your workers, you will be found out and called out. The respondents have been left with court orders to pay more than $800,000 because of their unlawful conduct.”
Booth said that among the long list of unacceptable conduct, the Fair Work Ombudsman takes a dim view of trying to trick the regulator into believing there is a good-faith attempt to rectify non-compliance, only to force an employee who thought he was getting AUD 10,000 to give it all back.
“We treat cases involving underpayments and use of false or misleading records impacting migrant workers particularly seriously, because we are conscious that they can be vulnerable due to a lack of awareness of their rights or a reluctance to complain,” she added.
“We urge any workers with concerns to contact us. Visa holders should be reassured that if they speak out about alleged workplace breaches, there are protections for their visa.”
The Court found that several of Mai’s breaches, including non-payment and underpayment of rates and loadings, and making and keeping false and misleading records, were serious contraventions under the Protecting Vulnerable Workers laws, attracting a tenfold increase in maximum available penalties, because they were committed deliberately and systematically.
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