A Wollongong restaurant owner who exploited two foreign workers may be up for hundreds of thousands of dollars in penalties, in what South Coast Labour Council secretary Arthur Rorris said was one of the biggest cases of wage theft in Australia.
In a Federal Court judgement released on Tuesday, Justice John Halley found in favour of Midhun Basi and Syed Haider, two restaurant workers who were employed at Adithya restaurants in Wollongong and Nowra.
The finding draws a line under a four year legal process where Basi and Haider attempted to recoup lost wages and additional payments made to business owner Vaisakh Mohanan Usha and the business Namitha Nakul.
Between 2016 and 2018, Basi and Haider were employed by Usha to work at the two Adithya Kerala restaurants.
While employed there, Justice Halley found Usha failed to pay Basi and Haider what they were owed and demanded additional payments.
Justice Halley found the two were not paid weekend holiday rates, not paid in line with the Award, that Usha demanded Basi make payments of $511 each fortnight as cashback payments and to cover the business's tax liabilities and his visa sponsorship costs.
Usha threatened Basi and Haider he would close the restaurant if they complained about their below-award pay.
The case will return to the federal court in July for parties to calculate penalties and costs, but with Justice Halley finding the conduct of Usha amounted to serious contravention of the act, Usha and the business may be up for penalties in the hundreds of thousands of dollars.
The maximum penalties could reach $126,000 for Usha and $630,000 for the company.
Mr Rorris said today's judgement should be seen as a warning to employers who would exploit foreign workers.
"This is one of the biggest cases of wage theft relating to individual workers in our history. It has raised profoundly disturbing issues about the employment of international visa based workers and how that power imbalance can have such shocking outcomes," he said.
"Let this serve as a timely warning about the misuse of international labour by some employers who want to fill an exploitation shortage rather than a labour shortage."
Basi and Haider were represented by Kristian Bolwell, principal of WorkLawyers, and barrister Lisa Doust.
"While justice may be a long time coming it is scalding hot and serves as a warning to all dodgy employers nation-wide," Mr Bolwell said.
Representing Usha, Brian Gillard of Gillard Consulting Lawyers said they were considering the judgement.
"The judgement recognises our clients admitted certain breaches and found additional breaches, which were not admitted," he said.
"Importantly the judgement determined Basi and Haider were full time workers for at least part of the period but did not work 12 hours a day for six days a week."
Sign up for our newsletter to stay up to date.