The former operator of Sushi Bay outlets in Darwin, Canberra, and New South Wales has been fined $15.3 million for deliberately exploiting vulnerable migrant workers, and underpaying them over $650,000, the Fair Work Ombudsman has said, which is $5 million more than the Commonwealth Bank was fined for underpaying employees more than $16 million.

Ombudsman Anna Booth said the Federal Court imposed penalties of $3.2 million against Sushi Bay, $5.8 million against Sushi Bay ACT, $2.4 million against Auskobay, $2.3 million against Auskoja, and $1.6 million against Yi Jeong ‘Rebecca’ Shin, the owner of these companies currently in liquidation proceedings.

Ms Booth said that between February 2016 and January 2020, 163 workers were underpaid $653,129, and records were falsified to hide it. The workers were primarily Korean nationals on student, working holiday, and 457 skilled worker visas.

Four workers who had worked at a Casuarina outlet were underpaid.

The Ombudsman said Individual underpayments ranged from $48 to $83,968.

The court found that most of the underpayments relate to the failure by the companies to pay adequate overtime rates, due to paying flat cash rates of between $14 and $18.50 an hour for some overtime hours worked, despite workers being entitled to overtime rates of between $25.94 and $48.24 an hour, under the Restaurant Industry Award 2010.

Minimum wage rates, weekend and public holiday penalty rates and annual leave entitlements were also underpaid, and Sushi Bay knowingly made false or misleading records and provided them to the Fair Work Ombudsman.

Twenty of the employees, who were subclass 457 visa holders, were subjected to an unlawful cashback arrangement under which they were sometimes required to pay back hundreds of dollars from their fortnightly wages.

She said the the total penalties of $15.3 million were a record-breaking amount, exceeding the $10.3 million collected against the Commonwealth Bank and its subsidiary CommSec earlier this year. The Commonwealth Bank and CommSec underpaid employees more than $16 million.

Ms Booth said that the underpayments occurred despite Ms Shin and Sushi Bay ACT having been penalised a total of $124,416 in 2019 for deliberately underpaying its workers, many of whom were migrant workers, in Canberra. Previously, Ms Shin and another company associated with her that operated Sushi Bay restaurants in Queensland failed audits.

“The record penalties imposed in this matter drive home the fact that deliberately and repeatedly exploiting workers, including vulnerable migrant workers, is reprehensible conduct that will not be tolerated in Australia,” Ms Booth said.

“If you deliberately underpay migrant workers and try to cover it up with false or misleading records, you will be found out and will pay a heavy price.

“We treat cases involving underpayment of migrant workers particularly seriously because we are conscious that they can be vulnerable due to factors such as a lack of awareness of their entitlements or a reluctance to complain.”

In addition to imposing the penalties, Justice Anna Katzmann had previously ordered the companies to back-pay all workers in full. With the companies now in liquidation, Justice Katzmann has ordered that if back pay cannot be obtained from the companies, part of Ms Shin’s penalty should go towards rectifying the underpayment of the workers, demonstrating the determination to right the wrongs.

Justice Katzmann found that Ms Shin’s conduct was “both calculated and audacious” and said: “This is yet another case of the exploitation of immigrant workers and a shameless but ultimately unsuccessful attempt to conceal it.”

The judge also recommended Ms Shin be referred to the Australian Taxation Office, the Department of Home Affairs, and the Australian Securities and Investments Commission.