Rob a servo and you go to jail. Underpay your workers to the tune of nearly $8 million and you get a slap on a wrist. How is that fair?
MasterChef tragic that I am, it was from Wednesday night's show that I learned about the closure of celebrity chef George Calombaris' feted Press Club restaurant in Melbourne. George had invited the contestants into his kitchen to prepare its last ever dinner, for very special guests: his restaurant staff. The Press Club was, George said, "a place seriously close to my heart... a place with total Aussie heart". But, "like all good things in life, chapters need to come to an end".
Intrigued, I googled the backstory while the contestants learned about their key ingredients and George emoted for the cameras. Sure enough, the Press Club, after 12 years and multiple awards, closed on June 29.
The media recorded Calombaris' reassurances that the reasons were not financial.
I felt for George, as he turned off the kitchen lights with one last wistful backward glance. Fortunately, the contestants had done him proud and his staff, one of whom said the restaurant was like a family, had a great last supper.
The following morning brought a dissonant coincidence: Calombaris had reached a settlement with the Fair Work Ombudsman (FWO) after a four-year investigation, admitting that his empire had underpaid 515 of its employees a total of $7.83 million in wages, and agreeing to make all that good as well as cop a $200,000 "contrition payment".
Calombaris had said back in 2017 that, due to "historically poor processes", he was estimating that 162 workers had been underpaid some $2.6 million. But there had been no updates in the meantime before the final bombshell, as Calombaris continued on his culinary journey as chef and TV star, teaching the virtues of ethical food and the beauty of simplicity.
As it turns out, the poor processes that had so vexed Calombaris included failure to pay minimum award rates, penalty rates, casual loadings, overtime, split-shift allowances and annual leave loadings. As accidents go, it's an impressively large, long-running and diverse one.
The law currently treats underpayment of wages as a "civil penalty" matter, not a crime. The Migrant Workers Taskforce report, release in March 2019, noted that "in practice, the amounts of redress obtained under the current avenues are relatively modest in relation to the amount of underpayment that seems to be occurring". It pointed to the 7-Eleven scandal, where "the amount of underpayment involved dwarfs the amount" of the available penalties.
As a result, the taskforce recommended that consideration be given to introducing criminal offences for underpayment. Industry groups have, of course, said that that is an unnecessary step -- why criminalise underpayments, as if they were like, what, theft?
How about because underpayments are, in fact, theft. Not paying a person what they are lawfully owed for something they have given you should be no different in law or principle, from taking the money from them. The increasingly popular term for this practice, wage theft, is accurate.
Historically, law and society have drawn a clear distinction between crime as popularly understood, and crime as perpetrated by people with white collars.
Defrauding your employer for millions has not until recent years exposed you to anything near the consequences you'd get for robbing a servo.
The higher up the food chain the theft goes, the wider that distinction becomes. As we vividly recall, the GFC was caused by fraud and yet nobody went to prison for it.
Our own banking royal commission uncovered, yes, institutional fraud, and some bankers lost their bonuses.
In a country that puts people in prison for unpaid parking fines, it may seem incongruous that the owner of a business empire, built on the efforts of hundreds of low-paid workers who, it turns out, were serially and grossly underpaid to the tune of millions, can get away with a $200,000 expression of contrition and no criminal record.
I think it's odd. Not that $200,000 is nothing, or that Calombaris' public shaming won't hurt him. But punishment must also deter others, by the signal it sends all of us regarding the social acceptability of the wrongdoing.
On that score, it's a fail. As these cascading wage theft cases keep rolling out (there are so many more scandals to come, don't worry), there has so far been no effective signal from the FWO, the government or the business community itself that this behaviour is not just a consequence of a complicated wage system and a bit of corporate negligence. It's a crime, and a particularly repulsive one at that.
Stealing money from the very people whose hard work is making you rich. Yuck.