American-style diner companies in court
22 February 2023
This matter was finalised in February 2023, with the Federal Circuit and Family Court imposing total penalties of $13,552.50 against RS Diners Pty Ltd, $15,097.50 against Route 45 Pty Ltd and $3,304.80 against Mr Stathakopulos. In addition, the Court earlier ordered the companies to take the steps set out in the Compliance Notices, which includes rectifying the alleged underpayments in full, plus interest and superannuation.
The Fair Work Ombudsman has commenced legal action against the operators of two American-style diner restaurants in Melbourne.
Facing court are Route 45 Pty Ltd, which operated a diner in Forest Hill trading as Route 45 Roadhouse, and RS Diners Pty Ltd, which operated a diner in Frankston trading as Bobo’s Diner. The sole director of both companies, George Stathakopulos, will also face court.
The regulator began an investigation after receiving requests for assistance from workers.
A Fair Work Inspector issued Compliance Notices to Route 45 Pty Ltd in January 2021 after forming a belief that two food and beverage attendants had been underpaid entitlements owed under the Restaurant Industry Award 2010 and the Fair Work Act’s National Employment Standards (NES).
The inspector’s belief was that these Route 45 workers were not paid minimum rates, overtime, and weekend and public holiday penalty rates, nor their accrued but untaken annual leave on termination, owed for work performed by one employee between December 2018 and August 2019, and by the other between August 2019 and February 2020.
A Fair Work Inspector issued Compliance Notices to RS Diners Pty Ltd in February 2021 after forming a belief that workers engaged as a prep chef and a food and beverage attendant respectively were underpaid under the same award and the NES.
One RS Diners worker, employed between August 2016 and November 2019, was allegedly underpaid entitlements arising from time worked on public holidays. The other, employed between October and November 2019, was allegedly underpaid minimum rates, evening and weekend loading. Both were allegedly underpaid accrued but untaken annual leave on termination of their employment.
The FWO alleges RS Diners Pty Ltd and Route 45 Pty Ltd, without reasonable excuse, failed to comply with the Compliance Notices, which required the calculation and back-payment of the workers’ outstanding entitlements. It is also alleged Route 45 Pty Ltd breached payslip requirements including by providing false and misleading payslips, and that RS Diners Pty Ltd breached payslip requirements and also failed to comply with Notices to Produce.
Fair Work Ombudsman Sandra Parker said the regulator would continue to enforce workplace laws and take businesses 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.”
“Any employees with concerns about their pay or entitlements should contact the Fair Work Ombudsman for free assistance,” Ms Parker said.
The FWO is seeking penalties. The companies each face penalties of up to $33,300 per contravention for allegedly failing to comply with a Compliance Notice and Mr Stathakopoulos faces penalties of up to $6,660 per contravention for his alleged involvement. Each payslip and Notice to Produce contravention can be penalised up to $63,000 for a company and $12,600 for an individual.
The regulator is also seeking orders for the companies to comply with the Compliance Notices, which includes rectifying any underpayments in full, plus interest and superannuation. A directions hearing is listed in the Federal Circuit and Family Court in Melbourne on 25 July 2022.
Employers and employees can visit www.fairwork.gov.au or call the Fair Work Infoline on 13 13 94 or an interpreter service on 13 14 50. Small business resources are at the Small Business Showcase.
