Category: Employment New Zealand

Source: Employment New Zealand

The Act is an important step in protecting the conditions of every employee in New Zealand.

An important employment law change is that employers who are unable to immediately comply with a Labour Inspector’s requirement to supply copies (or produce records for inspection) must meet this requirement within 10 working days.

Failure by the employer to supply the required records within the timeframe is an infringement offence.

A Labour Inspector can:

• issue an infringement notice and a fee of $1,000 per offence, up to a maximum of $20,000 in infringement fees in a 3-month period, or
• seek a penalty at the Employment Relations Authority for each breach of up to $10,000 for an individual or $20,000 against a company or corporate body.

The Act also allows people convicted of migrant exploitation or people trafficking to be disqualified from managing or directing a company. This will ensure that persons who leverage corporate structures to avoid consequences and detection will no longer be able to do so in that capacity and will help prevent that offending from reoccurring.

For more information on good record keeping, see Keeping accurate records

Immigration changes

The Act also brings changes to the Immigration Act 2009 that has impacts for employers hiring migrant workers.

For more information see: Immigration changes resulting from the Worker Protection (Migrant and Other Employees) Act – Immigration New Zealand (external link)

Source: Employment New Zealand

There are existing ways for employees, and unions representing their members, to bargain with employers for terms and conditions. These include:

• If a union represents employees in a workplace, a collective agreement can be negotiated.
• Employees, employers and unions must deal with each other at all times in good faith.
• A collective agreement is approved and signed after collective bargaining between the union and the employer (or employers).
• The agreement sets the terms and conditions of employment of union members who are employed by that employer (or employers) and are covered by the agreement.
• Employees can choose whether or not to join a union.

Employees, unions, and employers are encouraged to work together to agree suitable employment terms.

Privacy obligations

Organisations who collect information for specific lawful purposes, such as Fair Pay Agreement application for initiation or bargaining, must ensure the information they hold is only used in accordance with the Privacy Act 2020.

If the purpose for using that information is no longer valid, the organisation must dispose of information safely, and securely.

Disposing of information and documents safely – Office of the Privacy Commissioner (external link)

With the Fair Pay Agreement Agreements legislation now repealed, any person or organisation that obtained personal information for the purpose of Fair Pay Agreement bargaining must now dispose of that information in line with the Privacy Act 2020 (Privacy Principle 9).

This means employers, unions, facilitators, and government agencies must securely delete personal information obtained for this purpose, with the only exception being where there is a separate lawful purpose for retaining it (for example if a person joined a union and their information is being retained for that purpose, or if Public Records Act requirements apply).

Anyone who thinks their information is being misused, or that their privacy is being breached by their information being passed on to third parties, can talk to the Office of the Privacy Commissioner.

For more information on your rights, and the obligations of those who collect your personal information, see the Office of the Privacy Commissioner website.

Office of the Privacy Commissioner (external link)

Find out more on the FPA repeal:

Fair Pay Agreements – Ministry of Business, Innovation and Employment (external link)

Source: Employment New Zealand

The exploitation of the 7 migrant workers, who were of Indian descent, took place between December 2017 and December 2018.

Employment Court Judge JC Holden also ordered Ajay Sharma and Kavita Sharma, who previously owned Prisha’s Royal Cambridge Indian Restaurant in Cambridge and Roquette Restaurant and Bar in Whakatāne, to pay costs of $78,429, taking the total they must pay to more than $420,000.

She said the Sharmas showed little remorse for the compliance breaches and produced falsified documents to justify some of their behaviour.

Head of Compliance and Enforcement, Labour Inspectorate, Simon Humphries, believed it was appropriate that the owners of the 2 restaurants had been made to pay significant compensation to the workers they had exploited, as well as pay the wage arrears they owed.

“At the heart of this offending are vulnerable workers who have simply been exploited and denied basic minimum employment standards. As a result, they suffered considerable distress,” said Simon Humphries.

“Exploitation of workers is unacceptable. This was deliberate and systemic offending across 2 businesses. The penalties awarded demonstrates the serious nature of this offending and sends a very clear message to businesses who exploit vulnerable workers for their own financial gain. The consequences of such actions could be severe so it’s not worth the risk.”

In her determination, Judge Holden said the employees all gave credible evidence of the stress they felt working for the defendants. “Some employees spoke of feeling caged or like a slave,” she said.

“Those employees were isolated from family; several were young and most were visa-dependant. The inherent inequality of power in the employment relationship helped make the breaches possible,” Judge Holden said.

Simon Humphries said the Labour Inspectorate will continue to vigorously monitor potential migrant worker exploitation and enforce compliance when necessary. “We are pleased we were able to help these workers and bring an end to the gross exploitation they suffered.”

The Labour Inspectorate was also successful in obtaining a Freezing Order against the defendants, allowing the Labour Inspectorate to secure funds from the defendants to pay the arrears and compensation costs in full to the employees.  

The Labour Inspectorate encourages anyone concerned about their employment situation or the situation of someone they know to phone MBIE’s service centre on 0800 20 90 20 where all concerns are handled in a safe environment.

Source: Employment New Zealand

The order was made by the Employment Relations Authority (ERA) in a recent determination. This follows an earlier Labour Inspectorate investigation into the matter.

Businessman Vijay Singh, the sole shareholder and director of Laxmi Narayan Restaurant Ltd, trading as Karfa Moroccan Cuisine, was also ordered to pay a further $11,250 in penalties to the Crown.

He was found to have unlawfully deducted money from his restaurant manager’s wages over a 2-year period, underpaid him, failed to pay him for holidays and leave, and under-recorded the hours the employee worked in exchange for having helped him obtain a work visa.

This resulted in the employee regularly receiving payment for fewer hours than he had worked and he was working up to 25 hours a week for which he wasn’t being paid.

The ERA ordered Laxmi Narayan Restaurant Ltd to pay the employee:

• minimum wage arrears of $19,320.53
• unlawful deductions of $3,865.79
• holiday and leave arrears of $3,674.07
• interest of $2,019.27.

Laxmi Narayan Restaurant Ltd is ordered to pay penalties of $17,000 while Mr Singh must pay a penalty of $5,500. Half the penalty amounts are to be paid to the employee and the other half to the Crown. If Laxmi Narayan Restaurant Ltd is unable to pay, Mr Singh is liable for both amounts.

Source: Employment New Zealand

Understand the different between casual, fixed-term and part-time employees

‘Casual’ workers and fixed-term employees are both different to part-time workers, and sometimes people mix all these terms up.

A ‘casual’ employee isn’t defined in law but usually refers to a situation where the employee has no guaranteed hours of work, no regular pattern of work, and no ongoing expectation of employment. They only work when it suits you both. If you hire a casual worker, you must make this clear in their employment agreement.

A fixed-term (temporary) employee’s employment will end on a specified date or when a particular event occurs. A fixed-term employee might be someone who is brought in to replace another employee on parental leave, to cover a seasonal peak or to complete a project. There must be a genuine reason for the fixed term.

Whether you’re considered to be part-time or full-time depends on how many hours you have to work. Employment law doesn’t define what full-time or part-time work is, but full-time work is often considered to be around 35 to 40 hours a week.

Employment rights and responsibilities apply to all employees, but the way in which annual holidays, sick and bereavement leave are applied can vary.

Types of employee

For all types of employees, it’s important to keep accurate records of wage and time, and holidays and leave so that you can make sure leave entitlements can be correctly calculated.

Keeping accurate records

Source: Employment New Zealand

The three-day operation, carried out jointly with Immigration Compliance and Investigations, followed formal complaints being lodged against the retail and hospitality businesses spread across Auckland.

“We take migrant exploitation seriously. This operation is a tangible example of that commitment to follow up on alleged breaches of minimum employment standards and exploitative practices,” said Simon Humphries, Head of Compliance and Enforcement, Labour Inspectorate.

He said the operation had been valuable in helping the Inspectorate and Immigration Compliance and Investigations gauge levels of compliance by Auckland businesses operating in the retail and hospitality sectors.

“The intent was to educate where possible but also to hold accountable employers who are deliberately exploiting migrants.

“Our focus was on ensuring employers were complying with minimum employment standards by paying people the right minimum wage, holiday pay, leave entitlements and maintaining proper record keeping practices,” Humphries said.

The compliance operation forms part of a broader national strategy for the Labour Inspectorate to take a graduated and proportionate approach to gaining sustained compliance by using a suite of interventions including proactive education and information-focused approach. This will increase the knowledge of businesses operating in the retail and hospitality sectors on how to get employment law right, how to access help when problems arise, and improve compliance and awareness of the Labour Inspectorate.

“Some of the businesses were found to be non-compliant with lower-level breaches such a poor recordkeeping. It’s encouraging these businesses are now working with Labour Inspectorate to ensure they have better employment practices.

“However, there were also other instances where we were disappointed to find serious breaches in minimum employment standards,” Simon Humphries said.

High levels of non-compliance were found among the businesses visited.

Breaches uncovered included:

• wages below the minimum wage rate being paid
• no employment contracts for employees
• inadequate or no record keeping
• employee holiday and leave entitlements being withheld
• breaches of visa conditions
• employers demanding money from employees.

Humphries said enforcement action will be taken against businesses where issues of “deliberate non-compliance and exploitative practices” were uncovered.

“At this stage, we expect between 12 and 15 infringement notices will be issued which could lead to some accredited employers being placed on the standdown list.”

Immigration New Zealand and the Labour Inspectorate are working with migrant communities to keep them safe from those who would exploit the conditions of their work visas.

Anyone concerned about their employment conditions are encouraged to contact MBIE through the MBIE contact centre on 0800 20 90 20.

Source: Employment New Zealand

The Government has announced a short-term basic financial and welfare support package, including job search assistance, to individuals on the Migrant Exploitation Protection Visa (MEPV).