A former restaurant operator, Farok Shaikh, who owned and operated 'Indian Tandoori' restaurants in several locations in Victoria has been penalised more than $50,000 for exploiting an Indian couple, who moved to Australia in hope of gaining permanent residency.
Shaikh has been criticised for his “morally moribund” and “calculated and deceitful” exploitation of this Indian couple who were not paid any wages for more than a year’s work.
The couple approached Fair Work Ombudsman and the penalty, imposed in the Federal Circuit Court, is the result of an investigation and legal action by the Fair Work Ombudsman.
The Court penalised him $50,872.50 after he admitted he failed to pay the couple any wages for 14 months of full-time cooking, food preparation and customer service work at his restaurants in Yarrawonga, Beechworth and Bendigo.
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.
Shaik had threatened to get them deported
The workers had been reluctant to complain about the lack of payment earlier because they were reliant on Shaik’s support for the woman’s Regional Sponsored Migration Scheme Visa application, which they hoped would lead to permanent residency in Australia.
The wife gave evidence that Shaik had responded to her requests for payment by threatening to withdraw his support for her visa and take steps to have her and her husband deported if they quit.
In a sworn affidavit, the wife stated that when she questioned Shaik about the visa application and progress, Shaik “said words to her to the effect that if she asked about the visa he would kill her”.
The wife gave evidence that “she suffered a great deal of mental distress mainly on account of the fact that she was receiving no money for the work she performed and the bills that required payment were increasing”.
Despite working long hours at Shaik’s restaurants, the couple was forced to borrow amounts of up to $2000 from friends and family and take on extra work cleaning motels “simply to survive”.
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.
FAIR WORK OMBUDSMAN TAKES UP THE CASE
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.
Judge Joshua Wilson found that there was “a great deal of force in the Fair Work Ombudsman’s submission that (Shaik) exploited the vulnerability of (the couple) in a way that was morally moribund and legally improper”.
“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.
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.
“Minimum wage rates apply to everyone in Australia – including visa-holders – and they are not negotiable,” 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. An interpreter service is available by calling 13 14 50.
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