3 March 2022

The Fair Work Ombudsman has commenced legal action against the operators of the Sushi Bay outlets in NSW, Darwin and Canberra for allegedly underpaying workers more than $650,000.

Facing court are Sushi Bay Pty Ltd, Sushi Bay ACT Pty Ltd, Auskobay Pty Ltd, and Auskoja Pty Ltd, as well as the Sydney woman Yi Jeong ‘Rebecca’ Shin, who is the owner and sole director of the companies.

The regulator alleges the companies underpaid 163 workers - mostly Korean nationals on student, working holiday and 457 skilled worker visas - a total of $656,141 between 29 February 2016 and 26 January 2020.

It is also alleged that some workers were subjected to a cashback arrangement and that records were falsified.

It is alleged that the underpayments occurred despite Ms Shin and Sushi Bay ACT having been penalised a total of $124,416 in 2019 for deliberately underpaying migrant workers in Canberra.

In the current proceedings, it is alleged that the systemic and repeated nature of the conduct means that some of the breaches are ‘serious contraventions’ under the Protecting Vulnerable workers laws, and therefore attract ten-times the maximum penalties that would ordinarily apply, up to $630,000 per contravention.

Fair Work Ombudsman Sandra Parker said allegations of repeat offending are treated particularly seriously and the regulator was prepared to make full use of the Protecting Vulnerable Workers laws to hold individuals and companies to account.

“Employers need to be aware that taking action to protect vulnerable workers and improving compliance in the fast food, restaurant and café sector are priorities for the Fair Work Ombudsman,” Ms Parker said.

“We treat cases involving underpayment of young and migrant workers particularly seriously, because we are conscious that they can be vulnerable due to factors such as a lack of awareness of their entitlements and a reluctance to complain. Any workers with concerns should contact us.”

Fair Work Inspectors investigated after receiving underpayment allegations from two workers and allegedly discovered widespread underpayment of entitlements, under Restaurant Industry Award 2010, throughout the Sushi Bay network.

Many of the allegedly underpaid employees were young workers aged under 25. They generally worked as cooks, kitchen attendants and in customer service roles.

More than $600,000 of the alleged underpayments relates to workers located in NSW, across outlets at Carlingford, Campbelltown, Charlestown, Forster, Glendale, Liverpool, Merrylands, Miranda, Miranda Westfield, Paramatta, Penrith, Rouse Hill, Shellharbour, and Wollongong.

It is alleged than four workers at an outlet in Darwin were underpaid approximately $32,000 and that workers located at an outlet in Belconnen, in Canberra, were underpaid about $13,000.

All outlets traded as ‘Sushi Bay’, except for the outlet at Miranda Westfield, which traded as ‘Moduwa Ramen and Bar’.

It is alleged that most of the underpayments relate to overtime rates, due to a practice of paying flat cash rates of between $14 and $17 an hour for overtime, despite workers being entitled to rates of between $25.94 and $48.24 an hour for overtime work.

It is alleged that minimum wage rates, weekend and public holiday penalty rates and annual leave entitlements were also underpaid and that the companies knowingly made, kept or used false or misleading records.

It is also alleged that 23 of the employees, who were 457-visa holders, were subjected to an unlawful cashback arrangement under which they were sometimes required to payback hundreds of dollars from their fortnightly wages.

It is alleged that Ms Shin approved and oversaw operation of the payment practices for the Sushi Bay outlets and that she was involved in a number of the contraventions, including some serious contraventions.

The Fair Work Ombudsman is seeking penalties against Ms Shin, Sushi Bay Pty Ltd, Sushi Bay ACT Pty Ltd, Auskobay Pty Ltd, and Auskoja Pty Ltd for multiple alleged contraventions of workplace laws.

For the serious contraventions, Ms Shin faces penalties of up to $126,000 per contravention and Sushi Bay Pty Ltd, Sushi Bay ACT Pty Ltd, Auskobay Pty Ltd, and Auskoja Pty Ltd face penalties of up to $630,000 per contravention.

For the other alleged contraventions Ms Shin faces penalties of up to $12,600 per contravention and Sushi Bay Pty Ltd, Sushi Bay ACT Pty Ltd, Auskobay Pty Ltd, and Auskoja Pty Ltd face penalties of up to $63,000 per contravention.

The Fair Work Ombudsman is also seeking Court orders requiring the companies to fully rectify the underpayments, which remain outstanding.

A first directions hearing in the Federal Court has not yet been listed.

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