7 December 2023

The Fair Work Ombudsman has secured a penalty in court against a company director who was formerly involved in operating three bubble tea outlets in the Adelaide CBD.

The Federal Circuit and Family Court has imposed a $7,992 penalty against Yang Su, who was a director of Yuxuan Group Pty Ltd, which formerly operated ‘Fun Tea’ outlets on Gouger Street, York Street and in Rundle Mall.

The penalties were imposed after Ms Su admitted she was involved in Yuxuan Group breaching record-keeping and pay slip provisions of the Fair Work Act in relation to 20 fast food workers who worked across the three outlets from 29 July 2019 to 13 August 2019, and then from 6 April 2020 to 18 February 2021.

Most of the workers were visa holders, including international students, with four aged under 21.

The Fair Work Ombudsman initially also took legal action against Yuxuan Group for breaching record-keeping and pay slip laws and allegedly underpaying the workers a total of $186,895 – but the proceedings were stayed when the company went into liquidation in 2021 and penalties and back-pay orders were not obtained against the company.

However, some of the workers were back-paid a total of $50,897 after the Fair Work Ombudsman commenced its investigation into Yuxuan Group.

Fair Work Ombudsman Anna Booth said record-keeping and pay slip contraventions were treated seriously because they could undermine the capacity of workers and Fair Work inspectors to determine whether full lawful entitlements had been paid.

“Employers also need to be aware that taking action to protect visa holders and improve compliance in the fast food, restaurant and café sector are among our top priorities,” Ms Booth said.

“Any employee with concerns about their pay or entitlements should contact the Fair Work Ombudsman for free advice and assistance.”

Fair Work Inspectors investigated following public allegations about compliance issues at Fun Tea.

Inspectors discovered that Ms Su was involved in failing to issue workers with pay slips and failing to make and keep records that contained information relating to commencement dates, employment status and hours of overtime worked.

Ms Su submitted in court that she was born in China, had not received pay slips in her first job in Australia and was unaware of the record-keeping and pay slip requirements under Australia’s workplace laws.

However, Judge Antoni Lucev said that “the explanations proffered carry little weight” and found that the contraventions were serious and the extent of the non-compliance was considerable.

Judge Lucev said a meaningful penalty was required “to demonstrate the consequences for failing to comply with the Fair Work Act, and to act as an incentive for other employers to ensure that they comply with minimum standards.”

“Employers and their officers both in the fast food industry and generally should be in no doubt that they have a positive obligation to ensure compliance with the obligations they owe to their employees under the law, and that they must provide their employees with pay slips and keep proper records, and that significant penalties may be imposed upon individual directors of, and managers in, corporations, who fail to comply with such obligations,” Judge Lucev said.

The FWO filed 138 litigations involving visa holder workers, and secured $15 million in court-ordered penalties in visa holder litigations, in the six financial years to June 2023.

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 FWO has interactive tools to help employers and employees in the fast food, restaurant and café sector, and employers can also use FWO’s pay calculator and Small Business Showcase. Information is also available for employees and employers at our visa holders and migrants webpage.

The Fair Work Ombudsman has an agreement with the Department of Home Affairs, called the Assurance Protocol, where visa holders with work rights can ask for help without fear of their visa being cancelled. Details are at our visa protections webpage.