The Former owner of 'Indian Tandoori' restaurant, Farok Shaik, has been penalised $50,872.50 for his "calculated and deceitful" exploitation of an Indian couple who were paid no wages for more than a year's work.
The Indian couple gave evidence against Shaik that they endured the "morally moribund" exploitation for so long because Shaik had threatened to have them deported.
The woman gave evidence that Shaik had threatened to kill her.
The Fair Work Ombudsman acted against Shaik who owned and operated ‘Indian Tandoori’ restaurants at several locations in regional Victoria before his company was placed into liquidation in 2014.
The couple worked at his restaurants in Yarrawonga, Beechworth and Bendigo and did full-time cooking, food preparation and customer service.
Despite having promised to pay the couple a combined income of $1600 week, Shaik provided them only food and accommodation and short-changed them a total of $85,844 ($42,922 each) between August, 2012 and October, 2013.
Judge Joshua Wilson has ordered the penalty imposed on Shaik be paid to the couple to partially rectify the underpayment.
The couple relied on their employer's support for the woman's Regional Sponsored Migration Scheme Visa.
Shaik also delayed telling the couple about the Department of Immigration and Border Protection’s refusal of the wife’s application for permanent residency in a timely manner, affecting her ability to respond.
The Fair Work Ombudsman submitted that the conduct was aimed at keeping the couple working at the restaurant as long as possible.
The couple eventually complained to the Fair Work Ombudsman in March 2014 after they had ceased working at Shaik’s restaurants and received advice the visa application had been declined.
In addition to the underpayment contraventions, Shaik breached record-keeping and pay-slip laws, including providing false records to a Fair Work inspector and falsely claiming he had made cash payments to the husband-and-wife.
“In a sense the deceit lay in the respondent continuing to represent to (the couple) that he was advancing their visa application and their path to permanent residency when in truth he was not and instead was exploiting them,” Judge Wilson said.
Judge Wilson also said that he was not satisfied that Shaik was at all remorseful or contrite, describing an apology he offered in Court as “hollow” and noting he not made any form of restitution.
“Not a cent was paid nor offered by (Shaik) so as to redress the contraventions in this Case,” Judge Wilson said. “The respondent did not express his apology towards them, even in his native language, let alone in the English language.”
Judge Wilson said the penalty imposed should deter Shaik from further contraventions, noting that it was likely he would remain involved in the restaurant industry through a company operated by his wife.
Judge Wilson also said the penalty should create general deterrence.“I accept without reservation that this case is a further, lamentable, illustration of a prevalent phenomenon in the hospitality industry where employers exploit vulnerable workers by underpayment of salary entitlements and in other ways,” he said.
Fair Work Ombudsman Natalie James says the Court’s decision once again sends a message to rogue employers that exploitation of overseas workers in Australia will not be tolerated.
“I am increasingly concerned about the number of matters where visa-holders and vulnerable workers are being underpaid by culturally and linguistically diverse business owners,” she said.
Employers who are concerned that they are not meeting their workplace obligations can visit www.fairwork.gov.au or phone the Fair Work Infoline on 13 13 94.
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