A Sydney café operator has been penalised more than $97,000 in the Federal Circuit Court after requiring an overseas worker to pay back thousands of dollars of her wages as part of a cashback scheme, following legal action by the Fair Work Ombudsman.
Sydney man Tibor Vertes, who runs the Bar Coluzzi @ Victoria St licensed café in the inner suburb of Darlinghurst, has been penalised $9,720 and his company Robit Nominees Pty Ltd has been penalised a further $87,345.
The affected worker is an Italian cook who was sponsored by Robit Nominees to work at the café on a 457 skilled worker visa.
The worker’s contract stated that she would work 40 hours a week and be paid an annual wage of $56,000.
However, the worker actually worked 54 hours each week and Robit Nominees unlawfully required her to pay back a total of $13,952 of her wages over a 15-month period from August 2014 until she resigned in November 2015.
After being paid each week, Robit Nominees required the worker to pay back $218 of her wages in cash to Vertes.
Vertes told the worker that his company could not afford to pay her whole salary and required the cashback payments to cover tax and superannuation contributions.
In a Statement of Agreed Facts submitted in Court, Vertes and Robit Nominees acknowledged that the worker stated she agreed to make the cashback payments because she was concerned she may lose her job and have to return to Italy.
The worker lodged a request for assistance with the Fair Work Ombudsman after she resigned.
Fair Work inspectors found that in addition to the cashback scheme, Robit Nominees had underpaid the worker’s annual leave entitlements, overtime rates and penalty rates for weekend and public holiday work. The worker was also not issued pay slips.
The unlawful cashback scheme and the underpayment of minimum entitlements led to the worker being short-changed a total of $39,686.
In Court, Vertes and his company admitted contravening workplace laws and have back-paid the worker in full.
Judge Nicholas Manousaridis said the worker had been deprived of a significant amount of money over a significant period of time.
“The manner in which the Weekly Repayments were paid suggested it was a scheme established to create the false impression that [the worker] was being paid her lawful entitlements,” Judge Manousaridis said.
“The scheme was implemented in relation to an employee who was vulnerable because she relied on Robit Nominees to remain in Australia.”
The Fair Work Ombudsman had had previous dealings with Vertes, a qualified lawyer, when he was general counsel and director of a company regarding an alleged failure to pay an employee’s entitlement on termination.
“Vertes was an experienced business person and an admitted legal practitioner, it is inconceivable Vertes was unaware of the legal obligations of Robit Nominees as employer to [the worker],” Judge Manousaridis said.
Judge Manousaridis said Vertes and his company had expressed no contrition. He also found that there was “a need to send a strong message to the restaurant industry in which Vertes works”.
