Restaurant taken to court over enforceable undertaking violation

The operator of Sydney-based restaurant is being taken to court by the Fair Work Ombudsman due to allegedly violating the term of an Enforceable Undertaking (EU) that the restaurant entered into in 2016.

According to the FWO, Double Hats Pty Ltd, which operated the Vinh Phat Chinese Seafood Restaurant, entered into an EU after paying staff flat rates as low as $18 per hour. The company back-paid 22 workers almost $80,000 and made a $5000 contrition payment.

However, the regulator alleged that the company failed to comply with a term of the EU that required it to avail the services of an external accounting professional to audit its compliance with workplace laws for a one month period in 2019 and rectify any underpayments identified.

The FWO first attempted to secure voluntary compliance before proceeding with court action, in line with its proportionate approach to regulation during the COVID-19 pandemic

Fair Work Ombudsman Sandra Parker said the regulator was prepared to take legal action to ensure that the terms of Enforceable Undertakings are complied with.

“Enforceable Undertakings allow the Fair Work Ombudsman to achieve effective outcomes such as prompt back payment of workers and commit employers to ongoing compliance measures, which may not be possible through litigation,” Parker said. “However, if a company fails to fulfil the commitments it makes under an Enforceable Undertaking, we will take legal action to protect the integrity of our enforcement tools.”

The FWO is seeking court orders requiring Double Hats to comply with the terms of the EU by completing the audit, providing a copy of the audit report to the FWO and making back-payments, plus interest, to any underpaid staff.

A directions hearing has been in the Federal Circuit Court in Sydney on 25 August 2020.

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