Former operators of a bar and restaurant in Sydney have been penalised by the Federal Circuit and Family Court for “extensive and deliberate” contraventions of workplace laws.
The court imposed fines of $137,196 on Upper East Side Bondi Pty Ltd – which operated the hospitality venue Upper East Side Bondi – and imposed a penalty of an additional $27,439.20 penalty against its former director, Julia Rose Gelonese.
The penalties were imposed in response to a failure to comply with Compliance Notices requiring backpayments totalling $24,412 to eight workers, including a number of visa holders, and for knowingly providing false documents and information to the FWO.
The Court also ordered Upper East Side Bondi Pty Ltd to back-pay one of the workers a total of $3496.
Upper East Side Bondi Pty Ltd and Gelonese were previously penalised in 2021 for failing to comply with two earlier Compliance Notices requiring back-payment of employees.
“It is disappointing that we have had to twice take legal action against these business operators for breaching workplace laws,” Fair Work Ombudsman Anna Booth said. “We have no tolerance for the deliberate providing of false information and any employer who does so is at high risk of being taken to court.
“Employers need to be aware that we will take appropriate action to protect employees, and protecting vulnerable migrant workers is one of our top priorities,” Booth added. “A court can also order a business and individuals to pay significant penalties for failing to comply with Compliance Notices, in addition to ordering the back-pay of workers.”
A Fair Work Inspector previously issued two Compliance Notices to Upper East Side Bondi Pty Ltd in November 2020 in response to eight employees being underpaid. The inspector determined that the workers were variously underpaid minimum wages, overtime, evening and weekend penalty rates, casual loadings and annual leave entitlements, which were owed to them under the Restaurant Industry Award 2010 and the Fair Work Act’s National Employment Standards.
The workers were employed in front-of-house and kitchen roles for various periods between September 2019 and March 2020. Some of the workers were from Korea, Japan and Britain and on working holiday or student visas.
Gelonese was also determined to have been involved in the company’s failure to comply with the Compliance Notices.
Upper East Side Bondi Pty Ltd and Gelonese were also determined to have provided false information and documents to Fair Work Inspectors on 12 separate occasions between January and May 2021 to the effect that the workers had been back-paid, when in fact they had not.
Judge Nicholas Manousaridis found that the false documents and information contraventions were “extensive, and by their nature deliberate” and that, due to the previous proceedings, there was no doubt Ms Gelonese knew of the nature and significance of the Compliance Notices.
The judge also determined that there was a need to impose penalties to deter employers from failing to comply with Compliance Notices and from engaging in delay and misinformation to avoid payment of amounts owed under a Compliance Notice.
“The penalties should be set at a level that signals to all persons who are involved in responding to a compliance notice… that there would be no advantage in giving false or misleading information intentionally or recklessly,” Judge Manousaridis said.
In addition to the penalties and back-pay order, Judge Manousaridis ordered Upper East Side Bondi Pty Ltd to provide evidence of payments made to the Australian Taxation Office of PAYG amounts withheld from payments made to employees.
