The Fair Work Ombudsman has secured court penalties against the former operators of a rooftop cocktail bar.
The Federal Circuit and Family Court has imposed a $15,624 penalty against Don Haris Kumarage, the former operator of The Red Hummingbird bar, and a $12,096 penalty against its former manager, Channa Dissanayake.
Mr Kumarage was found to have been involved in the company’s breach of the Fair Work Act by its failure to comply with a Compliance Notice which required it to back-pay a worker. In addition, both Mr Kumarage and Mr Dissanayake were found to be involved in record-keeping and pay slip breaches by the company.
The company went into liquidation after the Fair Work Ombudsman commenced court action.
The FWO investigated in response to a request for assistance from the employee, a British national in Australia on a 417 working holiday visa.
Fair Work Ombudsman Sandra Parker said the regulator would continue to enforce laws in a proportionate manner during the COVID-19 pandemic, and 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 Parker said.
“Any employees with concerns about their pay or entitlements should contact us for free advice and assistance,” Ms Parker said.
A Fair Work Inspector issued a Compliance Notice to Mr Kumarage on behalf of the company in September 2019 after forming a belief the company had failed to pay the working holidaymaker her correct entitlements between January and April 2019.
The inspector believed the worker had been underpaid casual loading, and penalty rates for weekend, public holiday, late night and early morning hours, under the Hospitality Industry (General) Award 2010.
In his written judgment, Judge Philip Burchardt said the employee’s visa status put her in “a particularly disempowered position”.
“If [the company] had complied with the compliance notice, the [Fair Work Ombudsman] would not have been able to bring civil remedy proceedings,” Judge Burchardt said.
His Honour accepted the Fair Work Ombudsman’s evidence that the employee was only ever provided one pay slip and that was non-compliant. “There is no doubt that payslips are important. This has been made clear in numerous prior court decisions,” Judge Burchardt said.