The former director of a massage parlour who was slammed as dishonest after his operation underpaid workers, previously estimated to be $1.1 million, and left them in fear from his kill threats has been refused more time and leave to file an appeal.
The Federal Court last October found Foot & Thai Massage, its former director Colin Kenneth Elvin and its former supervisor Jun Millard Puerto breached numerous sections of the Fair Work Act in relation to seven massage therapists recruited from The Philippines under temporary work visas.
Elvin, who admitted to offering bogus employment contracts, had threatened to send the workers back and have their families killed if they broke any of the rules he imposed on them.
The court found the parlour, which was wound up in August 2019, did not pay workers their various entitled rates, including minimum hourly rates, in 2012-16.
They were forced to work long hours beyond the 38 per week and required to pay $800 per fortnight of their wages back over an eight-month "cashback period" with Elvin telling them "the shop [was] not doing well".
The court found the breaches meant the workers were discriminated against based on their race and nationality.
Elvin was also found to have been "knowingly concerned in all of the contraventions" except for two related to payslips.
Puerto was also found to have known most of the breaches.
Last December, Elvin had applied for extension and for leave to appeal based on eight grounds, including denial of procedural fairness during the contested hearing and apprehended bias.
Justice Wendy Abraham of the Federal Court last Friday ruled against Elvin's application and agreed with the ombudsman that the court did not have jurisdiction for seven of the eight grounds because they were incompetent as orders reflecting the outcome of the hearing are yet to be made.
"Rather, the primary judge made orders which, in effect, set a timetable for further steps to be taken by the parties," Justice Abraham said.
"These steps included the filing of an amended defence by the applicant, the filing of evidence and submissions with respect to the alleged underpayments and the referral to a registrar to conduct an inquiry and provide a report on questions concerning the alleged underpayments.
"The appeal is premature."
As for the remaining ground, which was that the primary judge, Justice Anna Katzmann, made orders about steps to be taken related to liability 10 months after the contested hearing finished, Elvin said the orders denied him procedural fairness.
Justice Abraham also refused him leave to appeal on that ground, saying his evidence had not shown "sufficient doubt to warrant them being reconsidered".
"In any event ... I am not satisfied that substantial injustice would result if leave were refused," she said.
"The matters complained of in this ground are discrete procedural complaints in the context of a matter which has not yet been completed."
In the October court ruling, Justice Katzmann said Elvin was not "an honest man".
"The evidence is replete with examples of his dishonest business practices," Justice Katzmann said.
She said the threats amounted to adverse action because, in effect, they were threats made to dismiss the workers.
"Mr Elvin strenuously denied making any such threats but I do not believe his denials," she said.
The judge said the therapists were genuinely afraid of Elvin after a number of them broke down during the hearing when recounting their experiences.
Elvin and Puerto initially filed defences based on the privilege against self-exposure to a penalty.
A member of the calculations team at the ombudsman's office determined the underpayments to be about $1.18m.
In March 2019, two of the workers won almost $40,000 in compensation after the Fair Work Commission found they had been unfairly dismissed in 2015.
As it happened
- 'They're scared of you': Massage parlour in unfair dismissal case
- Massage workers win unfair dismissal case against Foot and Thai
- Parlour's text messages read to Fair Work Commission
- Massage parlour closes down owing $12m
- 'Form of modern slavery': Massage parlour accused of worker exploitation
- 'Replete with dishonesty': Former massage parlour owner slammed for kill threats
