Migrant worker secures significant penalties from former employer for multiple award breaches

Migrant worker secures significant penalties from former employer for multiple award breaches

Migrant worker secures significant penalties from former employer for multiple award breaches

A female migrant hospitality worker has secured significant monetary penalties from her former employer for ongoing breaches of award entitlements spanning several years.

The worker ‘SP’ is a South Korean citizen who was initially employed by a restaurant trading as Momo Kitchen Pty Ltd (Momo) as a 17-year-old.

She was engaged by Momo for three distinct periods from 23 September 2018 to 22 September 2019, from 1 July 2020 to 14 March 2021, and from 29 May 2021 until her resignation on 19 June 2022.

In evidence before the Federal Circuit and Family Court of Australia Justice Salvatore Vasta, it was revealed that SP had been paid a flat rate for all hours worked and that the rate she was paid was generally below the minimum hourly rate prescribed by the Restaurant Industry Award 2010 and 2020.

During her employment, Momo failed to pay her:

  • Penalty rates for working on a Saturday, Sunday, on any weekday from 10 pm until midnight or for any hours worked outside her rostered hours;
  • Overtime for public holidays from September 2018 to 17 April 2022;
  • Annual leave loading when she ceased employment; and
  • Correct superannuation entitlements.

When all of the underpayments were totalled, it was revealed Momo had underpaid her a total of $31,182 and underpaid her superannuation by $3,182.

It also emerged that Momo had issued SP false and misleading payslips and failed to ensure that copies of the award and the National Employment Standards were available for employees to view.

In an earlier hearing, Momo repaid SP $36,450.45 for her underpayment and interest.

Justice Vasta exercised his discretion to determine the payment of penalties to SP rather than the Commonwealth.

He imposed penalties amounting to $41,000 against Momo and $8,200 against the principal of the business. As he noted,

“I am of the view that these penalties are appropriate and that they strike the balance ‘between oppressive severity and the need for deterrence’ in respect of all the circumstances of this particular case”.

P v Momo Chicken Pty Ltd [2023] FedCFamC2G 609 (12 July 2023)

For questions about award entitlements, wage claims, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 366.0723

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