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Take-away food outlet prosecuted

An international student who was underpaid thousands of dollars claims she was told she would be paid less because "you are not an Aussie". 

She also alleges that her employer threatened to cancel her visa if she complained about her low wages to the Fair Work Ombudsman.

The 27-year-old, from Nepal, was paid a flat rate as low as $12 an hour to work at the Health Express take-away food outlet at DFO South Wharf in Melbourne.

In a record of interview with the Fair Work Ombudsman, the student alleged that Health Express owner Jeffrey Herscu made it clear she would be paid less because she was an overseas worker. 

"When I came for the interview, he said that I will give you the job, but as you are not an Aussie, I will be paying you a lesser amount," she told Fair Work inspectors who investigated her request for assistance.

"It was really embarrassing for me. I had Australian friends who were doing the same kind of work, but were getting paid over $20 an hour."

The Fair Work Ombudsman discovered the casual employee was short-changed more than $23,500 between September, 2013 and March, 2015.

She was entitled to be paid up to $23.15 an hour for normal work, up to $27.78 on Saturdays, up to $32.41 on Sundays and up to $50.93 on public holidays.

After seeking help from the Fair Work Ombudsman, the student returned to Nepal for several weeks to care for her sick father, only to find she had been removed from the Health Express roster on her return. 

The woman was one of two international students who complained to the Fair Work Ombudsman that Health Express was underpaying them.

A second male student, 31, from India, was paid a flat rate of between $16.47 and $18.52 an hour between June, 2010 and March, 2015, resulting in an underpayment of more than $27,300.

Both students were entitled to a uniform allowance of $1.25 a shift which they never received and the male employee did not get his correct annual leave entitlements at the end of his employment.

Mr Herscu, the sole director of Rapid City Pty Ltd, which runs Health Express, has co-operated with the Fair Work Ombudsman and agreed to apologise and back-pay the $50,000 owed to his two former employees.

The Fair Work Ombudsman says Mr Herscu and his company have been asked to sign an Enforceable Undertaking (EU) aimed at encouraging behavioural change.

This includes placing a public notice in the Melbourne media apologising for the conduct and making a $5000 donation to the Western Community Legal Centre to promote workplace rights to vulnerable employees.

Need help with HR and compliance?

Most businesses - including small businesses - are now covered by the national Fair Work system created by the Fair Work Act 2009.

Fair work Inspectors appointed by the Fair Work Ombudsman have the power to enter a workplace at any time during working hours to inspect records and ensure compliance: Read more about fines and penalties: Fair Work Act 2009

HR Managers, Directors and people responsible for payroll and administration functions also risk personal fines under Section 550 of the Fair Work Act 2009.

Need help with HR and compliance? Workforce Guardian HR Solutions