If you’re anything like me, you’re familiar with Sydney’s restaurant scene. From three-hat wonders to the hole in the wall gems, us Sydney-siders are spoilt for choice when it comes to cuisines and options for dining out.

But while we’re chowing down on our Chow Mein, lapping up our laksa or simply stuffing our face with burgers (guilty as charged), very rarely do we turn our minds to what goes on behind the food pass.

Despite the hospitality industry’s history of worker exploitation, we repeatedly overlook the plight of those charged with the task of filling our tummies, or cleaning the dishes after. In our employment law update below, we unpack the employees’ rights as well as how employer’s can ensure they don’t fall foul of the Fair Work Act.

The Latest

Sydney’s Mamak, the famous, line for days, Malaysian house of deliciousness in Sydney’s China Town, is the latest restaurant to come under fire. The Fair Work Ombudsman has brought proceedings against Mamak in the Federal Circuit Court for, essentially, exploiting staff and name as the defendants not only the operating entity but the individual directors.

What’s the Claim?

The claim alleges that between 2012 and 2015, some staff were underpaid, sometimes taking home as little as $11 an hour. What’s more, the claim alleges Mamak’s owners falsified records, including payslips, which were produced in the investigative stage. Finally, Mamak allegedly didn’t comply with the requirement that they provide each worker in Australia with an information sheet which would have drawn the workers attention to the underpayment.

What are the Potential Consequences?

But Mamak’s potential liability extends far beyond being ordered to back-pay their workers and the obvious bad publicity. Under the Fair Work Act, owners who are found to have contravened the Act, or the applicable awards, can be fined $10,200 per breach for individuals, and $51,000 per breach for companies. As I think you’d agree, it would take a hell of a lot of roti to make back that pay-out.

It is reported that of the underpaid staff, a number were international students. Exploitation among such groups, presumably taken advantage of because of their ignorance of workers’ rights in Australia, is not uncommon. And while I love my Malaysian curries as much as the next gal’, that just isn’t right.

Award rates and minimum wages in Australia are not a magic number plucked out of the air by some politician in Canberra. Instead, the system of setting such rates is subject to a course of enquiry and submission that takes into account, among other things:

  • The cost of living;
  • Economic growth;
  • The financial ramifications on both the employee and employer;
  • The cost of doing the work to the individual; and
  • Ensuring a minimum standard of living is maintained.

So when a party fails to pay under those rates, like Mamak has allegedly done, all of those important factors fail to be applied to the individual employee. And that just isn’t right either.

The case continues in the Federal Circuit Court. Until then, if you don’t mind, I think I’ll pass on the roti.

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Meanwhile, if you’re an employer, the lesson is obvious. Ensure that your payments and records of employees are legally compliant. The Ombudsman can and regularly does investigate, and the ramifications are very, very serious.

If you are concerned about such issues, or you’re just not sure what your legal obligations are, let our employment lawyers know who can undertake an audit.

Emma Jervis

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