The Fair Work Ombudsman has commenced legal action against the husband-and-wife operators of two Vietnamese eateries in Adelaide for allegedly underpaying workers $407,546.
It is alleged that pay slip and record-keeping laws were also breached, including the use of falsified records, and that some workers were also subjected to unlawful deductions and requirements to spend.
Facing the Federal Court is Mr Viet Quoc Mai, who in his capacity as trustee for the Viet Quoc Mai Family Trust, operates a ‘Mr Viet’ restaurant in Adelaide’s Rundle Mall and a food court outlet in the Chinatown precinct.
Also facing court is Mr Viet’s wife Huong Le, who is a manager at the businesses.
The regulator alleges the couple, both of Vietnamese background, underpaid 36 workers – mostly Vietnamese international students aged under 25 – a total of $407,546 between January 2018 and September 2021.
Five of the workers were juniors aged from 18 to 20 at the time.
Individual alleged underpayments range from $74 to $58,592, with 15 of the employees being allegedly underpaid more than $10,000.
It is alleged that Mr Viet’s knowledge that he was contravening the provisions and that the conduct was part of a systematic pattern of conduct means that multiple breaches meet the definition of ‘serious contraventions’ under the Fair Work Act. These attract ten-times the maximum penalties that would ordinarily apply, up to $133,200 for an individual per contravention in some instances.
Fair Work Ombudsman Anna Booth said the litigation highlighted that any individuals or companies who allegedly commit serious contraventions will be found out and called out.
“The alleged systemic pattern and deliberate nature of the underpayments, providing of false records to frustrate an investigation, and the significant number of breaches in this matter are alarming,” Ms Booth said.
“Employers who allegedly exploit their workers and attempt to mislead inspectors will be found out and risk facing significant penalties.”
“Employers should also be aware that taking action to protect vulnerable workers and improving compliance in the fast food, restaurant and café sector are top priorities for the Fair Work Ombudsman.”
“We treat cases involving the underpayment of migrant and young workers particularly seriously, because they can be vulnerable due to factors such as a lack of awareness of their entitlements and a reluctance to complain.”
“Any employees with concerns about their pay or entitlements should contact the Fair Work Ombudsman for free advice and assistance. They can do this in their own language.”
Fair Work Inspectors discovered the underpayments when auditing the eateries as part of surprise inspections of restaurants, cafés and fast food outlets in Adelaide in April 2021.
During these audits, inspectors allegedly discovered widespread underpayment at the two venues of entitlements under the Restaurant Industry Award 2010, Restaurant Industry Award 2020, and Fast Food Industry Award 2010, and other breaches of the Fair Work Act.
The workers were engaged in casual roles as kitchen attendants, customer service and bar and waitstaff roles.
It is alleged the workers’ wages were paid using two different hourly rates – a combination of a variable flat hourly rate paid to their bank accounts, between $16 and $26.90, and a flat hourly rate of $15 cash-in-hand.
It is alleged Mr Viet added up the number of hours an employee worked in the fortnight and would pay some hours using the bank transfer rate, and then pay the worker cash for the remaining hours in the pay period.
As a result, it is alleged the workers were variously underpaid minimum wages, casual loading, and penalties for working weekend, public holidays and overtime, and were not paid entitlements owed when meal breaks were not provided. About 70 per cent of the alleged underpayments sum related to minimum wages and casual loading.
Mr Viet allegedly also made unlawful deductions from workers’ wages for costs associated with leaving a fridge open over the weekend, breaking a door and incorrectly charging a customer.
It is also alleged that Mr Viet and Ms Le subjected the workers to a ‘strike’ system as punishment for making errors, and once a worker had six ‘strikes’ against their name they were unlawfully required to buy food and/or beverages for Mr Viet, Ms Le and any staff working at the time.
Mr Viet both allegedly failed to provide pay slips to the workers and failed to make certain records, and knowingly made false or misleading records and provided these to workers.
The FWO also alleges Mr Viet provided to inspectors almost 100 pay slips which all failed to show the cash payments, and some of which showed workers had been paid higher rates and had worked less hours, when that was not the case. Following the inspectors’ site visit, Mr Viet also allegedly instructed workers to lie to inspectors and delete evidence.
Ms Le is alleged to be involved in a number of Mr Viet’s contraventions of workplace laws including some serious contraventions.
The Fair Work Ombudsman is seeking penalties against the married couple for multiple alleged contraventions of workplace laws. For the serious contraventions, Mr Viet and Ms Le each face penalties of up to $126,000 or $133,200 per contravention.
For the other alleged contraventions, each face penalties of up to $12,600 or $13,320 per contravention.
The Fair Work Ombudsman is also seeking a court order requiring Mr Viet to rectify the underpayments, the vast majority of which allegedly remain unpaid more than two years after they were owed.
A directions hearing date in the Federal Court in Adelaide is still to be fixed.
