31 October 2023

The Fair Work Ombudsman has secured $164,635 in penalties in court against the former operators of a bar and restaurant at Bondi, in eastern Sydney, for “extensive and deliberate” contraventions.

The Federal Circuit and Family Court has imposed a $137,196 penalty against Upper East Side Bondi Pty Ltd – which operated ‘Upper East Side Bondi’ until it closed – and an additional $27,439.20 penalty against the company’s former director, Julia Rose Gelonese.

The penalties were imposed in response to a failure to comply with Compliance Notices requiring back-payments totalling $24,412 to eight workers, including a number of visa holders, and knowingly providing false documents and information to the FWO.

The Court has also ordered Upper East Side Bondi Pty Ltd to back-pay one of the workers a total $3,496. The company back-paid the other seven workers more than seven months after it was required to do so under the Compliance Notices.

The penalties and back-pay order come after FWO secured penalties in 2021 against Upper East Side Bondi Pty Ltd and Ms Gelonese for failing to comply with two earlier Compliance Notices requiring back-payment of employees.

Fair Work Ombudsman Anna Booth said the regulator was prepared to take legal action against business operators for failing to comply with lawful requests and providing false information.

“It is disappointing that we have had to twice take legal action against these business operators for breaching workplace laws,” Ms Booth said.

“We have no tolerance for the deliberate providing of false information and any employer who does so is at high risk of being taken to court.

“Employers need to be aware that we will take appropriate action to protect employees, and protecting vulnerable migrant workers is one of our top priorities.

“A court can also order a business and individuals to pay significant penalties for failing to comply with Compliance Notices, in addition to ordering the back-pay of workers.”

In the latest case, FWO investigated after receiving a request for assistance from a worker.

A Fair Work Inspector issued two Compliance Notices to Upper East Side Bondi Pty Ltd in November 2020 in response to eight employees being underpaid. The inspector formed a belief that the workers had variously been underpaid minimum wages, overtime, evening and weekend penalty rates, casual loadings and annual leave entitlements.

The entitlements were owed under the Restaurant Industry Award 2010 and the Fair Work Act’s National Employment Standards.

The workers were employed in front-of-house and kitchen roles for various periods between September 2019 and March 2020. Some of the workers were from Korea, Japan or Britain and on working holiday or student visas.

Ms Gelonese was involved in the company’s failure to comply with the Compliance Notices.

Upper East Side Bondi Pty Ltd and Ms Gelonese also provided false information and documents to Fair Work Inspectors on 12 separate occasions between January and May 2021 to the effect that the workers had been back-paid, when in fact they had not.

Judge Nicholas Manousaridis found that the false-documents-and-information contraventions were “extensive, and by their nature deliberate” and that due to the previous proceedings, there was no doubt Ms Gelonese knew of the nature and significance of the Compliance Notices.

Judge Manousaridis found that there was a need to impose penalties to deter employers from failing to comply with Compliance Notices and from engaging in delay and misinformation to avoid payment of amounts owed under a Compliance Notice.

“The penalties should be set at a level that signals to all persons who are involved in responding to a compliance notice… that there would be no advantage in giving false or misleading information intentionally or recklessly,” Judge Manousaridis said.

In addition to the penalties and back-pay order, Judge Manousaridis has ordered Upper East Side Bondi Pty Ltd to provide evidence of payments made to the Australian Taxation Office of PAYG amounts withheld from payments made to employees.

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 provides a free online course to help employers understand what a Compliance Notice is and how to respond if they get one. The Compliance Notice course, among a suite of free interactive courses on offer for employers, managers and employees, is available in our online learning centre.

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.