The Federal Circuit Court has ordered a religious organisation to pay almost $80,000 to an Indian worker who was underpaid while working as a cook in Melbourne.
The Indian worker in his 40s was sponsored by the Hindu Society of Victoria on a 428 religious worker visa to work at a temple in Carrum Downs in the south-east of Melbourne, between June 2011 and November 2012.
Fair Work Ombudsman says the man who was performing the cooking duties in the temple canteen was paid less than $15 an hour for 2823.5 hours of work and nothing at all for a further 2014.5 hours of work.
The Ombudsman held that the worker was entitled to receive the wages of a grade one cook under the Restaurant Industry Award, and had issued a compliance notice requiring to back pay the worker a total of $77,754.
The Hindu Society of Victoria appealed the Ombudsman’s order in the Federal Circuit Court, arguing the Restaurant industry Award didn’t apply to the temple.
However, the Court upheld the compliance notice saying the employer bears the onus of proving the employee was paid correctly.
"The employer is uniquely positioned with respect to the production of evidence to demonstrate that the allegations in the compliance notice are not correct," Judge Grant Riethmuller said.
In his judgment, Judge Riethmuller noted that the annual gross revenue of the temple’s canteen was more than $280,000 during the Indian worker’s employment and had subsequently increased to more than $600,000.
"The takings of the canteen and the extent of its work (particularly with catering) makes it clear that the canteen had significantly outgrown a purely religious service," he said.
The HSV declined to comment on the matter.
"In the interest of the temple and the members, we cannot comment on this without going through our internal proceedings," said the society vice president Ratnam Kandasamy.
Fair Work Ombudsman Natalie James says that the Agency will continue to use Compliance Notices to secure back-payment for underpaid employees outside of the Courts, saving significant resources.
"Compliance Notices will continue to be an efficient and effective tool precisely because they enable us to secure back-payment for underpaid employees without the cost to the public purse associated with appearing in Court," Ms James said.
