6 July 2022

The Fair Work Ombudsman has secured a total of $355,000 in penalties in court against the operators of a Brisbane sushi restaurant after they deliberately underpaid employees and falsified records.

The Federal Circuit and Family Court has imposed a $305,000 penalty against Delishesco Pty Ltd, which operates ‘Moga Izakaya & Sushi’ in Paddington, and a $50,000 penalty against the company’s sole director Yinan Yang, who manages the restaurant.

The total penalties obtained in the case are the second highest the FWO has obtained in a Queensland matter and one of the highest the FWO has obtained in a case nationally.

Despite having previously been formally cautioned by the FWO for underpaying staff, Delishesco deliberately underpaid 34 employees a total of $75,716 between December 2018 and March 2019 – and then knowingly provided the FWO with false records during an investigation.

The Court was satisfied that Delishesco and Mr Yang knowingly underpaid the employees, and that their conduct was part of a systematic pattern of conduct. As a result, the Court was satisfied that eight of the underpayment contraventions were ‘serious contraventions’ under the Protecting Vulnerable Workers laws. Under these laws, significantly higher maximum penalties are available.

Most of the employees were Chinese, Japanese, Korean or Thai visa holders. Some were young workers, aged between 19 and 21.

Fair Work Ombudsman Sandra Parker said that the case demonstrates that the regulator will use all available powers to ensure employers who deliberately exploit workers are held to account.

“As the substantial penalties highlights, deliberately exploiting migrant workers and using false records even after the regulator has put you on notice is extremely serious conduct that will not be tolerated,” Ms Parker said.

“All workers in Australia have the same rights, regardless of nationality and visa status, and those rights must be respected. Anyone with concerns about their pay or entitlements should contact us for free assistance.”

Fair Work inspectors investigated after one of the underpaid workers contacted the FWO to allege he was being paid just $16 an hour.

Inspectors found that the 34 affected employees were variously underpaid minimum wage rates, casual loadings, overtime, split-shift allowances, and penalty rates for weekend, public holiday and night work, under the Restaurant Industry Award 2010 and National Employment Standards. Delishesco also breached record-keeping and pay slip laws.

The employees worked as wait staff, cooks, kitchenhands and dishwashers. Most were casuals.

Individual underpayments ranged from $92 to $9588. Delishesco back-paid the workers only after the Fair Work Ombudsman commenced legal action.

Mr Yang was involved in all of Delishesco’s contraventions.

Judge Salvatore Vasta found that the matter involved deliberate and systematic underpayment of vulnerable workers and there was a need to impose penalties to deter others from such conduct.

“In this case, the aspect of deterrence looms large. In fact, it might seem that it overshadows almost everything else. The severity and seriousness of what (Delishesco and Mr Yang) have done cannot be overstated,” Judge Vasta said.

Judge Vasta also said that: “Most of these employees are workers on visas who are apt to being exploited because of their unfamiliarity with the English language and Australian industrial law.”

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.

The Fair Work Ombudsman has an agreement with the Department of Home Affairs, called the Assurance Protocol, where visa holders can ask for our help without fear of their visa being cancelled for breaches of their work-related visa conditions. The FWO has free information and targeted resources for visa holder workers.