Sydney café owner faces legal action for underpayment

The Fair Work Ombudsman has started legal action against Martina Corp Pty Ltd, which operates ‘Bare Witness’ café in Sydney.

An investigation into Marina began after the ombudsman received a request for assistance from a migrant worker who was in Australia on a temporary graduate visa.

The worker had been employed at Bare Witness as a full-time cook at the café between July 2020 and March 2021.

A Compliance Notice was issued to Martina Corp Pty Ltd in June 2021 as it was believed the worker had not been paid all entitlements owed under the Restaurant Industry Award 2020 and the National Employment Standards.

The worker was allegedly paid an hourly flat rate of $21.54, leading to the underpayment of his full-time minimum wage, overtime rates, penalty rates for weekend and public holiday work, meal break entitlements and annual leave entitlements.

It is alleged Martina Corp Pty Ltd failed to comply with the Compliance Notice, requiring the company to calculate and back-pay the worker’s entitlements.

According to Fair Work Ombudsman Sandra Parker, the regulator would continue to enforce workplace laws and take business operators to court when they fail to act on Compliance Notices.

“Where employers do not comply, we are prepared to take appropriate legal action to ensure employees receive their lawful entitlements. A court can order a business to pay penalties on top of having to back-pay workers,” Ms Parker said.

The Ombudsman saw no reasonable excuse for Marina’s non-compliance.

“Any employees with concerns about their pay or entitlements should contact the Fair Work Ombudsman for free advice and assistance.”

A maximum penalty of up to $33,300 might be issued for allegedly failing to comply with the Compliance Notice.

A directions hearing is listed in the Federal Circuit and Family Court in Sydney on 20 May 2022.

Irit Jackson, 14^th April 2022