The distasteful practice of ‘wage theft’ has left two Indian-origin chefs without their jobs and outstanding claims of thousands of dollars that they believe they’d never receive, despite winning lawsuits against their former employer.
Thakur and Patel, who do not wish to disclose their first names, worked at a restaurant in the southeast of Melbourne.
When their employer failed to pay them their entitlements, the duo lodged individual civil claims against their employer in the Federal Circuit Court.
In August 2019, in a small, yet significant victory, the court ruled in their favour and ordered the company behind the restaurant to pay Mr Thakur more than $12,000 in unpaid wages and annual leave and Mr Patel approximately $7,000 in outstanding wages.
But now with the court-accorded deadline for making payments long gone and the company recently filing for liquidation, Mr Thakur and Mr Patel say they have lost all hope of recovering the money.
“I have honestly given up. Now that I look back, I should have rather spent the time and money I wasted on court proceedings, towards my family,” the 35-year-old Patel told SBS Punjabi.
Meanwhile, Mr Thakur has filed a claim under the Fair Entitlements Guarantee (FEG), the federal government’s scheme of “last resort” that provides financial assistance for unpaid employee entitlements in insolvency.
As per the Australian government’s website, a claim under FEG normally takes 16 weeks to process but can take longer for complex cases or during periods of high demand.
“To be honest, it is a vicious circle. I don’t think it’s of any use to knock doors once the company filed for liquidation,” said Mr Thakur.
Unrecognizable people at a restaurant cooking meals and each person working on different things Source: Getty Images
The report further revealed that the highest rates of non-compliance were found in the fast food, restaurants and cafes sector.
Giri Sivaraman, employment law principal at Maurice Blackburn said exploitation including underpayment and dangerously long hours are a common occurrence not just in the country’s hospitality industry, but the scale of abuse is rather rampant "across the board."
He said migrants, in particular, were most vulnerable.
“It’s really widespread and some of the evidence as you know shows that some cohorts of migrant workers, particularly international students, are underpaid across the board," said Mr Sivaraman.
He added that criminal penalties must apply to the most serious types of offending, particularly where there is clear evidence of persistent or repeat offending.
“Why is that if an employee steals from an employer, he can get jail for ten years, but if he steals from the employee, there is no recourse? I think it is completely unfair.
“I think where people deliberately engage in wage theft or are completely reckless to it, there should be criminal sanctions. That’s different to ignorance or making an honest mistake,” said Mr Sivaraman.
He suggested that workers must be aware of their rights, keep a record of their pay stubs, join a union and ensure they never get paid in cash to avoid exploitation at work.
"And for those who think they’re getting underpaid can go to the FWO and ask them to investigate the claim. They would do it for free if they think there is merit in the claim or else you can make a demand yourselves in the court,” said Mr Sivaraman.
According to FWO's 2018-19 annual report, the highest rates of non-compliance were found in the fast food, restaurants and cafes sector. Source: Getty Images
“Ever wondered why particularly migrants are being exploited? This is primarily because of two factors: first, they tend to overwork and second, then insist on being paid in cash.
“So two things are happening here: one, workers, particularly students are flouting visa conditions by working for more than their capped hours and the employers are taking advantage of their greed for quick bucks. This is why an overwhelming majority of these workers suffer in silence,” said Mr Joshi.
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People with a workplace concern can also call the Fair Work Infoline on 13 13 94.
