The Fair Work Ombudsman has fined an Alelaide nail salon $130,000 for exploiting two young, migrant workers and creating false records in an “elaborate sham” to try to cover it up.
Minh Gia Le, who previously operated the nail salon, has been fined $30,000 and his company House of Polish Central, which currently operates the salon, has been fined a further $100,000, in the Federal Circuit Court.
Le and his company admitted underpaying two nail technicians at the salon, which traded as Global Nail and Beauty and/or House of Polish Central, a total of $53,021 between November 2014 and March 2016.
Fair Work inspectors investigated after one of the Filipino employees lodged a request for assistance.
Inspectors found that both employees were paid as little as $12 an hour, despite being entitled to $18.97 to $19.44 for normal hours and penalty rates ranging from $23.71 to $38.88 for weekend work under the Hair and Beauty Industry Award 2010 at the time.
The employees were underpaid $35,680 and $17,339 respectively. They were back-paid in full in late 2016.
Judge Stewart Brown rejected Le’s claim that he had incorrectly believed that the employees could be paid as apprentices.
“In my view, this offending was not inadvertent,” Judge Brown said.
“As such, in my view, I am required to give significant credence to the FWO’s submission that both Mr Le and the company elected to take ‘a risk and place their own financial interests ahead of compliance with the law’.”
Judge Brown said the underpayment was a “very significant sum” which represented 30-45 percent of the entitlements of the two workers, who were vulnerable as they came from a non-English speaking background.
Le and his company also breached workplace laws by knowingly providing inspectors with false and misleading records during their investigation.
Le claimed in Court that his business had lost some records following a “cyber-attack” and that he had recreated records in an effort to assist the FWO.
However, Judge Brown found that the false records Le created in response to ‘Notices to Produce’ issued by inspectors were “an elaborate sham” which “grossly favoured him” by significantly understating the hours the employees had worked, creating an appearance that they had been paid much higher rates than was actually the case.
“I have reached the conclusion that the reconstruction was deliberately and deceitfully motivated,” Judge Brown said.
“Mr Le’s intent was, more likely than not to deceive [the Fair Work inspector] on the basis that he considered it highly improbable that he could be found out.”