The Fair Work Ombudsman (FWO) has alleged that the Chermside outlet of Café 63, which operates in the Westfield Chermside shopping centre, had paid 11 employees part of the wages in the form of meals, drinks and snacks over two periods between August 2017 and January 2018.
Timi Trading Pty Ltd, which operates the café, as well as company director and manager Tien Hoang Le, manager Minh Vo Duy Nguyen and owner-director Hamish Watson are all due to face the Federal Circuit Court in Brisbane on 21 February 2020, the FWO said.
It alleged that the majority of these employees were migrant workers, and seven of whom were less than 21 years of age at the time.
They had been employed to work at the café as food and beverage attendants, cooks and kitchen attendants.
According to the regulator’s allegations, the business employed and paid eight of the affected workers under Individual Flexibility Agreements (IFAs), which provided for flat hourly rates and a list of allowances and bonuses, rather than meeting conditions and penalty rates prescribed by the Restaurant Industry Award.
As a result, the FWO has alleged the individuals were “being allowed food and drink up to the value of $42 per day when working, including $20 in meals, $7 in desserts and $15 in drinks”.
The business had been investigated after the ombudsman received complaints about underpayment.
As well as the non-compliant conditions, the FWO has also alleged that Timi Trading and its directors provided its inspectors with false records, which has stopped it being able to calculate the exact amount the employees may have been underpaid.
Additionally, the ombudsman is claiming that Café 63 Chermside broke the law by not ensuring that the IFAs it issued to staff passed the better-off-overall test, or providing details of how it did so, that they had failed to keep proper records, and in one instance did not pay an employee for her absence on a public holiday.
Café 63 Chermside and its directors were approached for comment.
According to its website, Café 63 has almost 40 outlets in operation across Queensland, mostly in the greater Brisbane area. There are no suggestions that other outlets have been non-compliant with workplace laws.
Everyone works for, and should be paid in, money: Ombudsman
Ombudsman Sandra Parker said the latest prosecution should come as a warning to the food service industry Australia-wide that it faces ongoing scrutiny over the pay and conditions of employees working for these businesses.
“All employees in Australia are entitled to be paid the minimum pay rates that apply to their positions — in money, not food,” she said.
“Businesses should be aware that we are cracking down on the underpayment of vulnerable workers in the fast food, restaurant and café sector as a priority. Any worker with concerns about their pay or entitlements should contact the Fair Work Ombudsman.
“If we consider that employers are breaching their lawful obligation, we will take enforcement action so employees receive what they are entitled to.”
The announcement comes just a day after the FWO released its annual report for 2018–19 covering its compliance activities and enforcement action, in which it identified the café, restaurant and fast food sector as being the worst-performing industry for compliance with workplace laws.
The industry accounted for more than half of all legal action launched by the ombudsman against employers.