15 June 2023

The Fair Work Ombudsman has secured a $20,000 penalty in court against the former operator of an Espresso Warriors café in the Southern Highlands of New South Wales for a breach affecting a migrant worker.

The Federal Circuit and Family Court has imposed the penalty against HML Holdings Pty Ltd, which was previously the franchisee for the outlet located in the Highlands Marketplace on the Old Hume Highway, in Mittagong.

The penalty was imposed in response to HML Holdings failing to comply with a Compliance Notice requiring it to calculate and back-pay entitlements to a worker it employed at the café as a full-time chef between June 2020 and February 2022.

The worker, a Nepalese man, was a visa holder at the time.

In addition to the penalty, the Court has ordered HML Holdings to pay the entitlements owing to the worker, plus interest.

Acting Fair Work Ombudsman Kristen Hannah said business operators that fail to act on Compliance Notices need to be aware they can face court-imposed penalties on top of having to back-pay workers.

“When Compliance Notices are not followed, we are prepared to take legal action to ensure workers receive their lawful entitlements,” Ms Hannah said.

“Employers also need to be aware that taking action to improve compliance in the fast food, restaurant and café sector and protecting vulnerable workers like visa holders are enduring priorities for the FWO. Visa holders have the same workplace rights as any other employee.”

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

The FWO investigated after receiving a request for assistance from the affected worker.

A Fair Work Inspector issued a Compliance Notice in May 2022 after the worker was not paid accrued but untaken annual leave entitlements at the end of his employment, owed under the Fair Work Act’s National Employment Standards.

In imposing the penalty, Judge Natasha Laing said that HML Holdings had displayed a “concerning level of disregard for its obligations under the Fair Work Act” and that the company had “provided no indication of any contrition or intention to pay the employee’s entitlements without further enforcement action”.

Judge Laing found that penalties must be set at a level which demonstrates that there are serious consequences for non-compliance, to deter others from failing to comply.

“The penalty imposed in this matter should be sufficiently high to impress upon other employers the importance of complying with their legal obligations, and in particular the need to comply with statutory notices from the FWO,” Judge Laing said.

The cafe in the Highlands Marketplace ceased operating in 2022.

The FWO has filed 126 litigations involving visa holder workers, and secured more than $13.4 million in court-ordered penalties in visa holder litigations, in the past five full financial years.

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.

Small businesses can find targeted resources at the Small Business Showcase and information is available for employees and employers at our visa holders and migrants and fast food, restaurants and cafes webpages.

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.