Gyoza Gyoza franchisee fined $78,220

By Sarah Stowe | 22 Nov 2021 View comments

A Gyoza Gyoza franchisee has to pay a $78,220.80 fine after a court found the restaurant operator had deliberately breached the Fair Work Act and misled the Fair Work Ombudsman.

Acting Fair Work Ombudsman Mark Scully said the franchisee had engaged in “elaborate subterfuge against the FWO” designed to “frustrate its essential investigative functions” regarding the investigation into underpayments of two visa workers.

“Employers need to be aware that improving compliance in the fast food, restaurant and café sector and protecting vulnerable workers are priorities for the Fair Work Ombudsman and we are prepared to take action in response to serious breaches,” he said.

As a result of the FWO taking the case to court, CNL Group Pty Ltd, the Gyoza Gyoza Adelaide CBD franchisee, has been penalised $66,528 and its sole director Yu Bing Li has been penalised a further $11,692.80.

The FWO investigation followed requests for assistance from two Japanese visa holders employed as waiting staff by CNL Group.

One employee had taken photos of pay records and both had kept their own records. The Court found that CNL Group and Mrs Li had paid the workers rates as low as $12 per hour from April to August, 2018.

This resulted in underpayment of the workers’ minimum wage rates, weekend penalty rates and late-night loadings under the Restaurant Industry Award 2010. In total, the two workers were underpaid $10,517.43, which has been back-paid.

The court found Li and CNL Group also breached the Fair Work Act when Li hindered and obstructed an inspector at the restaurant in January 2019.

CNL Group also made and kept false payment records and false pay slips, which Li provided to FWO inspectors. The CNL Group also failed to issue the workers with pay slips and Fair Work Information Statements.

Judge Stewart Brown, in the Federal Circuit and Family Court, regarded the conduct of CNL and Li as “extremely serious”. He found the two vulnerable workers had been exploited and left “living hand to mouth” and struggling to pay their rent.

Judge Brown also found that the breaches were deliberate; CNL Group had previously been formally cautioned by the FWO for underpaying workers and failing to issue pay slips.

Judge Brown concluded there had been “calculated action designed to frustrate the application of the industrial safety net to vulnerable employees”.