‘Disgraceful’ husband-and-wife employers fined $802k for contraventions

The husband-and-wife operators of two Vietnamese eateries in Adelaide have been hit with strong consequences by the Fair Work Ombudsman (FWO) for a range of contraventions – including forcing their workers to buy them bubble tea.

The FWO has secured more than $802,000 in court penalties against Viet Quoc Mai (Mai) and his wife, Huong Le, for a range of contraventions taking place at two of their two Vietnamese eateries in Adelaide.

Mai was ordered to back pay $407,546, plus interest and superannuation, owed to the 36 workers he underpaid as the operator of a “Mr Viet” restaurant, as well as a $265,000 penalty. His wife – Le – was hit with a $130,000 penalty for her involvement in the contraventions.

Along with the underpayments of the staff – who were primarily Vietnamese international students aged under 25 – the FWO found that the pair gave false records to Fair Work inspectors, failed to compensate workers who took no meal breaks, and unreasonably required workers to spend their own money.

Workers were also paid as little as $15 an hour when they were employed between January 2018 and September 2021 as kitchen attendants and bar and waitstaff, and in customer service roles. The individual underpayments ranged from $75 to $58,592.

One of the most alarming revelations made by the FWO was that Mai had a “strike board system” in place that worked to punish employees for the mistakes they made on the job. If employees accumulated a total of six strikes against their name, they would be made to go and buy food and beverages for Mai, his wife, or other colleagues.

An example presented by the FWO was that one employee was sent out to purchase bubble teas for Le and the other workers on two occasions in October 2020. Another example in February 2021 was when an employee was made to transfer more than $50 to Le’s bank account for the purchase of bubble teas once again.

Another part of the strike system led to Mai taking money out of workers’ pay cheques, claiming that these workers incorrectly charged a customer – or, in one case, failed to properly close a refrigerator door.

Mai also took money out of his employees’ pay packets for claims they incorrectly charged a customer and for failing to properly close a refrigerator door. The court found that those deductions were not authorised and, therefore, contravened the law.

In terms of the fabrications of records presented to the FWO, Mai once attempted to deceive the regulator by giving one of his workers $10,000 – claiming he back paid the worker – which he then made the worker withdraw and give back to him.

Justice Stephen McDonald, who oversaw the case, called Mai’s record-keeping deception tactics a “calculated and dishonest course of conduct”, while Fair Work Ombudsman Anna Booth labelled the contraventions as “disgraceful”.

“These substantial penalties highlight that exploiting vulnerable migrant workers is particularly reprehensible conduct that will not be tolerated in Australia,” said Booth.

“If you exploit your workers, you will be found out and called out. The respondents have been left with court orders to pay more than $800,000 because of their unlawful conduct.

“Among the long list of unacceptable conduct, we take a dim view of trying to trick the regulator into believing there is a good faith attempt to rectify non-compliance, only to force an employee who thought he was getting $10,000 to give it all back.

“We treat cases involving underpayments and use of false or misleading records impacting migrant workers particularly seriously because we are conscious that they can be vulnerable due to lack of awareness of their rights or a reluctance to complain.”

Speaking on the severity of the penalties enforced, Justice McDonald noted the deliberate nature of Mai’s actions, as well as his attempted obstruction of the FWO’s investigation.

“Mai’s repeated dishonest attempts to conceal contraventions and to mislead the FWO investigation leave me with a concern that he is a person who is prepared to act dishonestly when he thinks it will be to his benefit,” said Justice McDonald.

Justice McDonald found that Mai’s conduct was an exploitation of the employer/employee relationship, with the “power dynamic favouring the employer”.