7 December 2021

The Fair Work Ombudsman has secured $225,500 in penalties in court against the former operators of two Chinese restaurants on the Gold Coast who underpaid a visa holder more than $46,000.

The Federal Circuit and Family Court has imposed a penalty of $190,000 against Fu Kang GC Pty Ltd (Fu Kang). Its two married directors, Ms Yingchun “Christine” Wang and Mr Liangtao “Frank” Zhao, were ordered to pay $23,000 and $12,500 respectively.

The company, which has ceased trading, operated the now closed Fu Kang Gold Coast Chinese Restaurant in Labrador and Memory Taste of Fu Kang in Southport.

The penalties were imposed in response to Fu Kang breaching the Fair Work Act by underpaying an employee, a cook on a sponsored visa, $46,555 across eight months between May 2016 and January 2017. Ms Wang and Mr Zhao each admitted to their involvement in some of the breaches, including the production of false and misleading records.

The employee worked between 22 and 87 hours per week during the eight months and received cash payments of between $200 and $600 per week, equating to between $2.30 and $12.85 per hour.

Fair Work Ombudsman Sandra Parker said the regulator prioritised matters involving vulnerable workers such as visa holders, who could be unaware of their rights and unwilling to speak up.

“The Fair Work Ombudsman will continue to use all our powers to hold employers to account whenever we find allegations impacting vulnerable workers. The significant underpayments and false records in this case are entirely unacceptable in any workplace,” Ms Parker said.

“All workers have the same rights in Australia regardless of visa status and anyone with concerns about their pay or entitlements should contact the FWO for free assistance,” Ms Parker said.

In his judgement, Judge Salvatore Vasta said the company “took advantage” of a vulnerable worker.

“There is an element of exploitation that colours this case. [The employee] was a vulnerable person in that he relied upon [Fu Kang] for his ability to be in this country. [Fu Kang] took advantage of that reliance by contravening the [Fair Work] Act in a manner which it is unlikely that it would have dared to perpetrate if the employee was not a vulnerable Visa holder,” Judge Vasta said.

Judge Vasta also criticised the “attempt to cover” the underpayments by providing false documents.

“The penalty for the provision of false documentation needs to be in the higher echelon because of the brazen manner in which [Fu Kang] acted,” His Honour said.

The regulator investigated after receiving a request for assistance from the employee, who worked as a cook at the restaurants from July 2015 to January 2017. The court action relates to a period between May 2016 and January 2017 when he had maintained a diary record of the hours he worked and the amounts he was paid. The underpayment was rectified after the FWO started court action.

The employee, a Chinese national then in his 20s, was sponsored by the company on a 457 skilled visa. Ms Wang and Mr Zhao are also each of Chinese background.

Employers and employees can visit www.fairwork.gov.au or call the Fair Work Infoline on 13 13 94 for free advice and assistance. A free interpreter service is available on 13 14 50. Visa holders with work rights can seek our help without fear of their visa being cancelled. Information is available at our webpage for visa holder workers. Anonymous reports can be made in English and 16 other languages.