In the case of Fair Work Ombudsman v Gaura Nitai Pty Ltd & Anor  FCCA 1242 (13 June 2017), the Fair Work Ombudsman (the Ombudsman) has announced that it has recently secured more than $180,000 in penalties against a former Coffee Club café franchisee in Brisbane for contraventions including requiring an overseas worker on a 457 Skilled Worker Visa to pay back $18,000 of his wages through an unlawful cash-back payment.
The penalties have been imposed after Brisbane man Saandeep Chokhani – who, with his wife, formerly owned and ran the Coffee Club franchise at the Nundah Village Shopping Centre – required an overseas worker to repay $18,000 of his wages by threatening to take steps to cancel the worker’s 457 Skilled Worker Visa if he refused. Mr Chokhani has been penalised $30,000 and a company he and his wife are the directors of, Gaura Nitai Pty Ltd, has been penalised a further $150,900, in the Federal Circuit Court. The worker is an Indian national in his late 20s who was sponsored by Gaura Nitai to work as a cook at the Nundah Coffee Club outlet on a 457 Visa.
In handing down his judgment, Judge Jarrett said at [para 1]:
His Honour found that Chokhani then told the worker to withdraw $18,000 in cash and repay it to him, or Chokhani would take steps to cancel his 457 Visa. Fearing he would lose his Visa and therefore lose the ability to stay in Australia, the worker withdrew $18,000 in cash the same day and repaid it to Chokhani.
The worker’s contract stated he was to be paid an annual salary of $53,900 on a weekly basis - but he endured long periods without receiving any wages at all.
His Honour said at [para 44]:
The worker lodged a request for assistance with the Fair Work Ombudsman only after his employment was terminated without notice in November 2015. When Fair Work Inspectors investigated, they found that because of the unlawful cash-back payment, the worker had been underpaid his minimum hourly rates, casual loading, annual leave entitlements, overtime rates, payment in lieu of notice of termination and penalty rates for weekend and public holiday work, leading to the worker being short-changed a total of $23,546 between September, 2013 and November, 2015. The worker was back-paid in full earlier this year.
The worker told the Court that the exploitation had led to him incurring credit card debt and needing to borrow money from family and friends. Jarrett J described the requirement placed on the worker to pay-back his wages as “especially egregious”, saying at [para 70] it was:
And at [para 71]:
Fair Work Ombudsman Natalie James says the penalties imposed send a message about the seriousness of exploiting the vulnerability of visa holders:
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Former Brisbane Coffee Club franchisee penalised over unlawful cash-back payment –
Fair Work Ombudsman v Gaura Nitai Pty Ltd & Anor  FCCA 1242 (13 June 2017)
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