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Sushi Store Operators Face ‘reverse Onus Of Proof’ Legal Action

Sushi store operators face ‘reverse onus of proof’ legal action

The operators of two Queensland-based sushi stores are facing reverse onus of proof legal action after they allegedly underpaid staff.

It’s the first time the new reverse onus of proof laws have been used.

They require employers to disprove underpayment allegations in court when they have failed to keep proper time and wage records or failed to issue pay slips.

The details

Facing the Federal Circuit Court is A & K Property Services Pty Ltd, which operates two ‘Sushi 79’ fast food outlets located at Ipswich and the Sunshine Coast.

Company directors, Yong Sim Kim, Hyn Jun Kang and Jungpyo Lee are also accused of being involved in the wage theft, and failure to keep accurate records.

Fair Work inspectors discovered the alleged underpayments during an audit of the two ‘Sushi 79’ stores last year.

The underpayments

It will be alleged that nine workers across the two outlets were underpaid a total of $19,467.

The employer allegedly failed to pay minimum ordinary hourly rates, weekend penalty rates and overtime rates.

Superannuation contributions for the workers was allegedly not paid, and their annual leave and personal leave entitlements were not accrued.

The workers were all South Korean nationals and were in Australia on working holiday, student and vocational education visas.

Crucially, the business allegedly breached workplace laws by failing to keep proper time and wages records, and failed to issue pay slips to its employees.

The new laws close a loophole

Miles Heffernan, Litigation Director at Industrial Relations Claims, said the new reverse onus of proof laws close a loophole that allowed businesses to get away with wage theft.

“In the past, if an employer did not keep records, and didn’t issue pay slips, the Fair Work Ombudsman wouldn’t have evidence to prove that workers had been underpaid, and wouldn’t be able to take cases to court,” he said.

“Now, if the records don’t exist, it’s up to the business to prove it didn’t rip off its workers.”

What are the penalties?

A & K Property Services faces penalties of up to $63,000 per contravention.

Mr Kim, Mr Kang and Mr Lee are facing penalties of up to $12,600 for their alleged involvement in the leave contraventions and, in addition to those contraventions, Mr Kim is facing penalties of up to $12,600 for his involvement in the record-keeping and pay slip breaches.

While the the workers have now been back paid their outstanding wages, the Fair Work Ombudsman is seeking an order for back payment of the unpaid superannuation entitlements.

The matter is listed for a directions hearing in the Federal Circuit Court in Brisbane in March.

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