The operators of a Brisbane sushi restaurant is set to face the federal court due to allegations of having underpaid employees and for falsifying documents. According to the Fair Work Ombudsman, Delishesco Pty Ltd, which operates the Moga Izakaya & Sushi restaurant, alongside its sole director and manager Yinan Yang, paid employees flat rates below minimum entitlements, resulting in 34 employees being underpaid a total of $75,716 under the Restaurant Industry Award 2010 and the Fair Work Act’s National Employment Standards between 1 December 2018 and 31 March 2019. Individual alleged underpayments range from $58 to $9588, though they have been partially rectified since court action was initiated.
The 34 employees were underpaid minimum wage rates or casual loadings, with a number of employees underpaid their overtime rates, penalty rates for weekend, public holiday and night work, and split-shift allowances. Most of them were visa holders, with many on 417 working holiday visas, and worked as wait staff, cooks, kitchenhands and dishwashers. Some were also young workers, aged between 19 and 24.
Eight of the underpayments also met the definition of “serious contraventions” under the Protecting Vulnerable Workers amendments to the Fair Work Act due to the alleged deliberate and systematic nature of the conduct. The restaurant also was previously formally cautioned for underpaying employees.
The FWO also alleged that Delishesco, alongside Yang, provided records containing falsified employee pay rates and work hours to the Fair Work Ombudsman. Laws relating to written agreements for part time hours, record-keeping and pay slips were also breached.
For the alleged serious contraventions under the Protecting Vulnerable Workers laws, which came into effect in September 2017, the maximum penalties are $630,000 per breach for Delishesco and $126,000 per breach for Yang, 10 times the penalties which would ordinarily apply. For the other alleged contraventions, Delishesco faces penalties of up to $63,000 per breach and Yang faces penalties of up to $12,600 per breach. FWO is seeking a court order requiring Delishesco and Yang to back-pay the employees in full.
Fair Work Ombudsman Sandra Parker said that it is the sixth matter where the FWO has alleged the increased maximum penalties should apply – the first in Queensland.
“Employers are on notice that we will protect vulnerable workers by ensuring that any individuals or companies who allegedly commit serious contraventions are held to account,” Parker said. “Maximum penalties for serious contraventions are $630,000 per breach for companies and $126,000 per breach for individuals.”
A hearing is listed in the Federal Circuit Court in Brisbane on 29 June 2021.
