17 April 2015

A Nando’s restaurant withheld the first two weeks’ wages from a new staff member in a bid to ensure the employee stayed in the job for at least three months, a Fair Work Ombudsman investigation has revealed.

The worker – a 25-year-old Korean national in Australia on a 417 working holiday visa - was also underpaid thousands of dollars when he worked at the Nando’s restaurant in the Brisbane suburb of Kelvin Grove.

The restaurant operators are now being held to account for unlawfully withholding wages and underpaying the worker’s minimum hourly rate, casual loadings and penalty rates.

Franchisee UB Partners Pty Ltd, and the company’s sole director, Ujjwal Singh, have signed an Enforceable Undertaking with the Fair Work Ombudsman.

Mr Singh is also the sole director of a second company, UBS Pty Ltd, which operates the Nando’s restaurant at Newstead. 

UB Partners has agreed to back-pay the former employee $5573 that the worker was short-changed over four months from January to May last year.

The former employee, who has since returned to Korea, was paid as little as $12 an hour when he should have received between $20.94 and $37.74 an hour – depending on his shifts – under the Restaurant Industry Award 2010.

It was also against the law for UB to withhold wages from the employee as a “bond” until he had completed three months’ employment.

The Fair Work Ombudsman has received complaints in the past from employees at both of Mr Singh’s Nando’s restaurants.

The Enforceable Undertaking requires him and his companies to undertake training and commit to future compliance with federal workplace laws.

Deductions from wages are generally unlawful if they are not authorised by the employee in accordance with workplace law and are not principally for the benefit of the employee.

“Clearly withholding wages in this case only benefited the employer, which is why we have taken this matter seriously and sought a commitment from the business this behaviour will not be repeated,” says Acting Fair Work Ombudsman Michael Campbell.

“Deducting money from employee wages as a punishment, or as some sort of performance management tool, is completely unlawful.”

“And it is clearly not a constructive way of encouraging staff to improve their performance if there are performance issues that need addressing.”

“Research shows that employees are most productive and motivated when they are part of a workplace culture in which their contribution is valued and there are strong, positive leaders who encourage them to perform at their best.”

Mr Campbell says the Fair Work Ombudsman also views very seriously attempts by employers to exploit the vulnerability of overseas workers, who often are unaware of their workplace rights.

He noted that Mr Singh and his companies specifically recruited Korean nationals, placing advertisements for job vacancies in Korean.

Last month, the Fair Work Ombudsman revealed that a Melbourne travel agency had underpaid a Korean sales assistant more than $4200 over a period of just seven weeks.

Mr Campbell encouraged employers who had any uncertainty about whether their workplace practices were appropriate or not to visit www.fairwork.gov.au or call the Small Business Helpline for advice.

Among the free resources are a series of Best Practice Guides on topics including effective dispute resolution and managing under-performance, which offer extensive advice on dealing with and managing issues at work.

Online tools also include pay rate calculators to assist employers determine the correct Award and minimum wages for employees and free templates for pay slips and time-and-wages records.

As part of its Enforceable Undertaking, Mr Singh and UB Partners will complete all educational courses available to employers on the Fair Work Ombudsman website and engage professional, external auditors to review the company’s 2014-15 pay practices.

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,” Mr Campbell said.

“We know workplace laws can seem complicated for the uninitiated, but we ask small business to use the tools and resources that we provide for them and inform themselves.”

The Fair Work Ombudsman can assist employers with accurate, reliable information that is easy to access, understand and apply.

Employers and employees seeking assistance can consult the range of free tools and resources available on the website, or call the Fair Work Infoline on 13 13 94.

A free interpreter service is also available on 13 14 50, and information on the website is translated into 27 languages.

Follow Fair Work Ombudsman Natalie James on Twitter @NatJamesFWO , the Fair Work Ombudsman @fairwork_gov_au or find us on Facebook www.facebook.com/fairwork.gov.au .

Sign up to receive the Fair Work Ombudsman’s media releases direct to your email inbox at www.fairwork.gov.au/mediareleases.

Download: 

• UB Partners Pty Ltd Enforceable Undertaking 

Media inquiries:

Nicci de Ryk, Senior Media Adviser
Mobile: 0466 522 004
nicci.deryk@fwo.gov.au