Former Coffee Club franchisee penalised over unlawful cash-back payment

The Fair Work Ombudsman has secured more than $180,000 in penalties against a former Coffee Club café franchisee in Brisbane for contraventions including requiring an overseas worker on a 457 skilled worker visa to pay back $18,000 of his wages through an unlawful cash-back payment.

The penalties have been imposed after Brisbane man Saandeep Chokhani – who, with his wife, formerly owned and ran the Coffee Club franchise at the Nundah Village Shopping Centre – required an overseas worker to repay $18,000 of his wages by threatening to take steps to cancel the worker’s 457 skilled worker visa if he refused.

Chokhani has been penalised $30,000 and a company he and his wife are the directors of, Gaura Nitai Pty Ltd, has been penalised a further $150,900, in the Federal Circuit Court.

The worker is an Indian national in his late 20s who was sponsored by Gaura Nitai to work as a cook at the Nundah Coffee Club outlet on a 457 visa.

In his penalty judgment, Judge Michael Jarrett said: “The exploitation of workers from other countries who are inspired to live and work in Australia with the hope of achieving permanent residency needs to be discouraged, in the strongest of terms whenever it is apparent that it has occurred. This is one of those cases.”

The worker’s contract stated he was to be paid an annual salary of $53,900 on a weekly basis – but he endured long periods without receiving any wages at all.

After failing to pay the worker any wages for a four-month period from July to November 2014 and a one-month period in February-March 2015, Chokhani and Gaura Nitai paid the worker $19,334 by electronic transfer on 22 April 2015.

Judge Jarrett found that Chokhani then told the worker to withdraw $18,000 in cash and repay it to him or Chokhani would take steps to cancel his 457 visa.

The worker withdrew $18,000 in cash the same day and repaid it to Chokhani.

“(The worker) was in a bind,” Judge Jarrett said.

“He could not leave his employment because if he did so, he would breach a condition of his visa and his ability to remain in Australia would be seriously compromised. He was effectively working for nothing.”

The worker lodged a request for assistance with the Fair Work Ombudsman only after his employment was terminated without notice in November 2015.

When Fair Work inspectors investigated, they found that because of the unlawful cash-back payment, the worker had been underpaid his minimum hourly rates, casual loading, annual leave entitlements, overtime rates, payment in lieu of notice of termination and penalty rates for weekend and public holiday work.

The unlawful cash-back payment and the underpayment of contractual entitlements led to the worker being short-changed a total of $23,546 between September 2013 and November 2015. The worker was back-paid in full earlier this year.

The worker told the Court that the exploitation had led to him incurring credit card debt and needing to borrow money from family and friends.

Judge Jarrett described the requirement placed on the worker to pay-back his wages as “especially egregious,” saying it was “an inappropriate and grotesque exploitation of the power imbalance that existed between (Chokhani) and (the worker).”

“The respondents’ conduct was deliberately exploitative of (the worker’s) position being, as he was, dependent upon (Gaura Nitai’s) ongoing sponsorship so as not to jeopardise his 457 visa”, Judge Jarrett said.

Fair Work Ombudsman Natalie James says the penalties imposed send a message about the seriousness of exploiting the vulnerability of visa holders.

In the 2015-16 financial year, 38 of the Fair Work Ombudsman’s 50 litigations (76 per cent) involved a visa holder, and more than $3 million was recovered for all visa-holders.

Inside Small Business

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