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Sushi restaurant short-changes visa-holders $123,000

09 September, 2016

Nine overseas workers employed by a sushi restaurant chain in Brisbane were short-changed more than $123,000 over 16 months, a Fair Work Ombudsman investigation has found.

The Japanese and Korean nationals, including 417 working holiday visa-holders and international students, were paid flat hourly rates of between $11 and $13.50 for all hours worked.

As a result, they were collectively underpaid a total $123,431 between April, 2014 and August last year.

The largest individual underpayments were $25,231, $19,859, $18,099 and $16,948.

The visa-holders worked as kitchen and food and beverage attendants across three Sushi Go Round outlets in Grand Plaza and Village Square in Browns Plains and Forest Lake.

The Village Square and Forest Lake stores have since closed.

The nine were underpaid their minimum hourly rates, casual loadings and penalties for weekends and public holidays and late night shifts.

Fair Work inspectors discovered their underpayments after the group contacted the Agency last year seeking assistance.

Under the Restaurant Industry Award, casual food and beverage attendants should have been paid up to $23.09 for normal hours worked, $27.71 on weekends and $46.18 on public holidays.

Kitchen attendants were entitled to a casual hourly rate of $22.24 for normal hours, $26.69 on weekends and $44.48 on public holidays.

Sushi Go Round director Mr Hiroshi Taira told the Fair Work Ombudsman he paid the visa-holders at a rate that was common in the industry.

However, Fair Work Ombudsman Natalie James says Mr Taira was apprised of his workplace obligations in 2014 when his company was audited and found to be non-compliant.

In 2014, Sushi Go Round was found to have underpaid 14 employees more than $2200.

As a result of the latest contraventions, the Fair Work Ombudsman has taken enforcement action against Taira and his company JH Enterprises (Qld) Pty Ltd.

While the $123,000 wages bill was rectified in December, Taira and JH Enterprises have signed an Enforceable Undertaking with the Fair Work Ombudsman aimed at encouraging behavioural change and future compliance.

Enforceable Undertakings were introduced by legislation in 2009 and the Fair Work Ombudsman has been using them to achieve strong outcomes against companies that breach workplace laws without the need for civil court proceedings.

"We use Enforceable Undertakings where we have formed a view that a breach of the law has occurred, but where the employer has acknowledged this and accepted responsibility and agreed to co-operate and fix the problem," James says.

Under the terms of EU, Taira and JH Enterprises have agreed to engage an independent specialist to audit compliance with federal workplace laws, upgrade systems and processes to ensure future compliance, place a public notice in Brisbane’s Courier Mail newspaper detailing the contraventions and register with the Fair Work Ombudsman’s My Account portal.

James says employers need to ensure they are aware of the minimum lawful pay rates their employees are entitled to, including penalty rates.

"It's not acceptable for an employer to pay a worker a 'going rate' or what they think the job is worth," she says.

"I am increasingly concerned about the number of matters where visa-holders and vulnerable workers are being underpaid by culturally and linguistically diverse business owners.

"I understand there are cultural challenges and vastly different laws in other parts of the world, but it is incumbent on all businesses operating in Australia to understand and apply Australian laws. To that end, the Fair Work Ombudsman is here to help with free advice and resources in a range of languages."

Only last month, the Fair Work Ombudsman announced it had taken enforcement action against a Gold Coast business which runs a sushi factory and allied restaurant and take-away food outlets after finding it had underpaid three Japanese nationals more than $51,000 over 18 months.

See the media release: Sushi chain underpays migrant workers $51,000

In June, the Fair Work Ombudsman announced it had commenced legal proceedings against the operators of a take-away sushi outlet near Wollongong, in NSW, for allegedly underpaying three Korean visa-holders more than $51,000.

See the media release: Take-away food outlet allegedly used 'internship' program to exploit young Korean workers

And in July last year, the Agency took enforcement action against the operators of a sushi restaurant at Bundaberg in Queensland which short-changed four Korean backpackers more than $28,000 over six months.

See the media release: Korean backpackers short-changed $28,000 - but sushi restaurant boss labels them "trouble-makers"

James says the Fair Work Ombudsman is committed to improving compliance rates in the hospitality sector.

The Agency's National Hospitality Industry Campaign, finalised earlier this year, resulted in more than $2 million being recovered for underpaid employees.

"The Fair Work Ombudsman is striving to build a culture of compliance where businesses understand and comply with their lawful obligations," Ms James says.

She says employers should be aware that the Fair Work Ombudsman treats underpayment of overseas workers very seriously.

Overseas workers on the 417 working holiday visa have emerged as a strong priority for the Fair Work Ombudsman, and their wages and conditions are the subject of a national Inquiry launched last August.

James says she is focused on ensuring the Agency does more to ensure culturally and linguistically diverse business operators understand and comply with Australian workplace laws.

"Minimum wage rates apply to everyone in Australia - including visa-holders - and they are not negotiable," she said.

Employers who are concerned that they are not meeting their workplace obligations can visit www.fairwork.gov.au or phone the Fair Work Infoline on 13 13 94. An interpreter service is available by calling 13 14 50.

Small businesses calling the Infoline can opt to receive priority service to assist with their inquiries.

Information to assist people from culturally and linguistically diverse backgrounds has been translated into 27 languages and is available on the website.

The Agency also has fact sheets tailored to overseas workers and international students on the website and YouTube videos in 14 languages to assist workers to understand their workplace rights.

The Fair Work Ombudsman’s Pay and Conditions Tool (PACT) provides advice about pay, shift, leave and redundancy entitlements.

Visit www.calculate.fairwork.gov.au to learn more.

James said the Agency recently launched an Anonymous Report function which enables members of the community to alert the Fair Work Ombudsman to potential workplace issues.

Intelligence can be provided at www.fairwork.gov.au/tipoff.

"While many employers want to do the right thing, there are some who seek to gain a competitive advantage by exploiting vulnerable workers, such as visa-holders," she said.

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