22 March 2022

The Fair Work Ombudsman has secured a $42,336 penalty in court against the operators of an Indian takeaway-food business in Hobart for underpaying 17 employees more than $63,000.

The Federal Circuit and Family Court has imposed the penalty against Satchithanantha N Chelliah and Mahesvery Toolseram as Trustees for The Chelliah Family Trust, which operates the ‘Little India’ outlet on Harrington Street.

The penalty was imposed after the married trustees breached the Fair Work Act by paying $10 per hour flat rates to the casual fast food employees. This resulted in underpayments of minimum hourly rates (for adults and juniors), casual loading, weekend penalties and public holiday rates owed under the Fast Food Industry Award 2010.

Individual underpayments were found to range from $270 to $15,224. The trustees also breached payslip and record keeping requirements.

The employees included three visa holders, two from India and one from Nepal, as well as two young workers who were aged 18 and 20 at the time.

Fair Work Ombudsman Sandra Parker said business operators should be aware the FWO continues to prioritise improving compliance in the fast food, restaurant and café sector and protecting vulnerable employees.

“We know migrants and young workers can be vulnerable to exploitation and we will not hesitate to take action to protect their workplace rights,” Ms Parker said.

“Any employees with concerns about their pay or entitlements should contact us for free advice and assistance,” Ms Parker said.

In imposing the penalty, Deputy Chief Judge Patrizia Mercuri said it must be set at a level which is likely to dissuade others from engaging in similar conduct.

“This is all the more so in industries which attract vulnerable workers, including foreign students on limited work visas and young people generally,” Deputy Chief Judge Mercuri said.

Her Honour said while the trustees submitted that the breaches were the result of ignorance and a failure to obtain appropriate advice, “…ignorance of the law is not a defence to a proceeding such as this”.

In addition to the penalty orders, the trustees have been ordered to commission an independent audit and provide the results to the FWO, register with the My Account portal at www.fairwork.gov.au and complete the courses for employers, and undergo workplace training.

The Fair Work Ombudsman investigated after receiving a request for assistance from an employee. The largest individual underpayment occurred between July 2017 and June 2019, with other employees underpaid between January and June 2019. The underpayments of $63,065.74 were rectified in full as of October 2020.

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