Former regional Victorian eatery operators in court
27 November 2023
This matter was finalised in November 2023, with the Federal Circuit and Family Court imposing a penalty of $2,830.50 against Mr D’Rozario for his involvement in Niyamat Pty Ltd’s failure to comply with the Compliance Notice. A penalty was not obtained against Niyamat Pty Ltd because the company was placed into liquidation.
The Fair Work Ombudsman has commenced legal action against the former operators of an eatery in regional Victoria.
Facing court are Niyamat Pty Ltd, which operated a café/restaurant trading as Lillies and Lattes in Stawell, and company director Mathew D’Rozario.
The regulator investigated after receiving a request for assistance from a Sri Lankan worker who was employed at the eatery as a cook between December 2020 and November 2021.
The worker was on an international student visa when she commenced employment and moved onto a graduate student visa after graduating during the employment period.
A Fair Work Inspector issued a Compliance Notice to Niyamat in March 2022 after forming a belief the worker was underpaid the minimum wages, overtime entitlements and penalty rates for weekend and public holiday work she was entitled to under the Restaurant Industry Award 2020.
The Fair Work Ombudsman alleges Niyamat, without reasonable excuse, failed to comply with the Compliance Notice, which required it to calculate and back-pay the worker’s entitlements. It is alleged Mr D’Rozario was involved in the contravention.
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.”
“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.”
“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 for the alleged failure to comply with the Compliance Notice. Niyamat faces a penalty of up to $33,300 and Mr D’Rozario faces a penalty of up to $6,660.
The regulator is also seeking an order for the company to fully rectify the alleged underpayments, plus interest and superannuation.
A directions hearing is listed in the Federal Circuit and Family Court in Melbourne on 17 July 2023.
Lillies and Lattes 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.
