Chinese restaurant operators to face court over underpayments

The operators of two Chinese restaurants on the Gold Coast are set to face the Federal Circuit Court for having allegedly underpaid a visa holder.

Fu Kang GC Pty Ltd and husband-and-wife company directors Liangtao “Frank” Zhao and Yingchun “Christine” Wang operate Fu Kang Gold Coast Chinese Restaurant in Labrador and formerly operated Memory Taste of Fu Kang in Southport.

An investigation by a Fair Work inspector revealed that an employee who worked as a cook at the restaurants from July 2015 to January 2017 was underpaid $46,555 from May 2016 and January 2017 for minimum ordinary hourly rates, overtime rates, and penalty rates for morning, evening, weekend and public holiday hours under the Restaurant Industry Award 2010.

The inspector also noted that the employee, a Chinese national then aged in his 20s, was sponsored by the company on a 457 skilled visa, worked between 22 and 87 hours per week and received cash payments of between $200 and $600 per week, equating to between $2.30 and $12.85 per hour.

The Fair Work Ombudsman alleges that the company produced false and misleading documents to a Fair Work Inspector on three occasions, including records that stated the employee was paid $862 net per week or $26.95 per hour. They also allege that the company did not issue payslips to the employee and failed to keep records relating to their annual leave, amounts paid to them, and hours they worked.

The restaurant operator also allegedly failed to pay the employee’s annual leave and superannuation entitlements. Wang and Zhao are alleged to be involved in many of the contraventions. None of the alleged underpayments have been rectified.

“Visa holders, who we know can be vulnerable due to a range of factors including their reliance on an employer, must receive the same minimum pay rates as every other employee in Australia,” Fair Work Ombudsman Sandra Parker said. “We will continue to take legal action to protect workplace rights, particularly where it involves vulnerable workers.”

The FWO is seeking penalties against Fu Kang GC, Wang and Zhao, with the company facing maximum of $54,000 per contravention while Wang and Zhao each facing a maximum penalty of $10,800 per contravention. The regulator is also seeking a court order for Wang and Zhao to rectify the underpayment, undertake training in relation to their workplace obligations and engage a third party to audit the company. A directions hearing has been listed in the Federal Circuit Court in Brisbane on 21 December 2020.

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