14 December 2021

The Fair Work Ombudsman has commenced legal action for the second time against the operators of the Upper East Side Bondi bar and restaurant in eastern Sydney.

Facing court is Upper East Side Bondi Pty Ltd and its former director, Julia Rose Gelonese.

The new litigation follows an investigation by the regulator that commenced after receiving a request for assistance from a worker.

A Fair Work Inspector issued Compliance Notices to the company in November 2020 after forming a belief that eight employees had not been paid entitlements owed under the Restaurant Industry Award 2010 and the National Employment Standards.

The eight workers were employed in front of house and kitchen roles for various periods between September 2019 and March 2020. Some of these employees were from Korea, Japan or Britain and on working holiday or student visas.

The inspector formed a belief that the workers had variously been underpaid minimum wages for ordinary hours, overtime, penalty rates for evenings and weekends, and casual loading. The inspector also formed a belief that some of the workers had not been paid their accrued but untaken annual leave entitlements on termination of their employment, nor received required notice of termination.

The Fair Work Ombudsman alleges the company, without reasonable excuse, failed to comply with the Compliance Notices, which required it to pay employees their outstanding entitlements, totalling $24,412.85 and to provide reasonable evidence of gross and net payments to the Fair Work Ombudsman by set dates in January 2021. It is alleged Ms Gelonese was involved in this failure.

The regulator also alleges that the company and Ms Gelonese provided false or misleading information or documents to Fair Work Inspectors on 12 separate occasions between January and May 2021 to the effect that the workers had been back-paid their entitlements under the Compliance Notices. It is alleged that partial rectification of the outstanding entitlements in fact occurred only in August 2021.

Fair Work Ombudsman Sandra Parker said the regulator would continue to take business operators to court where lawful requests are not complied with.

“Where employers do not comply, we will take appropriate action to protect employees. A court can order a business to pay penalties in addition to back-paying workers. It is disappointing that we have again had to commence litigation for alleged breaches of Compliance Notices by this company and director,” Ms Parker said.

“Providing false or misleading information, as alleged, is a serious offence and we will hold employers to account.”

In the new litigation, Upper East Side Bondi Pty Ltd faces a possible maximum penalty of up to $33,300 for each alleged Compliance Notice breach and a penalty of up to $66,600 for the alleged false information and document breaches. Ms Gelonese faces a possible maximum penalty of up to $13,200 for the alleged false information and document breaches, and a penalty of up to $6,660 per breach for her alleged involvement in the Compliance Notice breaches.

The regulator is also seeking an order for the company to comply with the Compliance Notices, which includes rectifying outstanding entitlements to one employee, plus interest, and providing evidence of payments made to the Australian Taxation Office of PAYG amounts withheld from payments made to employees.

A directions hearing is listed in the Federal Circuit and Family Court in Sydney on 1 February 2022.

A penalty hearing in the first litigation, which related to breaches of Compliance Notices, concluded on 2 August 2021. The penalty judgement is reserved.

Employers and employees can visit www.fairwork.gov.au or call the Fair Work Infoline on 13 13 94 for free advice and assistance about their rights and obligations in the workplace. An interpreter service is available on 13 14 50. Small businesses can find targeted resources at the Small Business Showcase.