The Ministry of Business, Innovation and Employment’s (MBIE) labour inspectorate investigated 35 New Zealand farms last season, finding various levels of breaches on 24 of these businesses.
The inspectorate handed out 14 enforceable undertakings, one improvement notice, three infringement notices and six farms had self-resolutions.
Enforceable undertakings are where breaches are found and the inspectorate works with the employer to establish a timeline to resolve the issues. Improvement notices are issued without input from the employer and infringement notices are spot fines.
Employers issued with infringement notices are also issued with stand-down notices, preventing them from sponsoring migrant workers.
Self-resolutions are where breaches have occurred throughout the course of the farming season and the employer has resolved to fix them prior to the inspection.
None of the farms were referred to the Employment Relations Authority (ERA), the most serious category of breaches.
MBIE’s labour inspectorate manager Callum McMillan says poor record-keeping by farmers was the most common breach found.
“It continues to be an issue,” McMillan said.
On-farm inspections are both unannounced and made after complaints to the MBIE.
While the small number of farms inspected is not sufficient to make inferences about the whole sector, he says it showed that the labour inspectorate continued to take a strong approach to breaches of employment standards in the dairy-agricultural sector.
“While dairy/agricultural investigations remained largely the same, since lockdown last year, more inspectors and employers have worked together to enter into enforceable undertakings to remedy breaches rather than having these addressed through self-resolution,” he said.
The heaviest fine handed down to a farm owner was $99,012 and another farm owner was ordered to pay $60,000.
McMillan says there is a one to two-year backlog of cases waiting to be heard by the ERA and the fines are not necessarily related to investigations completed in the same year.
In another case in March this year, Southland dairy farmer Christoph Kenel was ordered to pay $30,000 in penalties for failing to comply with the Employment Relations Act and Holidays Act.
Kenel was investigated in 2019 after receiving a complaint from a former employee about not receiving a written employment agreement and being paid less than the statutory minimum wage.
Kenel did not keep holiday and leave records for any of his employees, and three employees did not receive final holiday pay on termination of their employment.
At least one employee did not get paid time-and-a-half or receive an alternative holiday for working on a public holiday.
Due to inadequate holiday and leave records it was not possible to know the extent to which other employees did not receive their holiday and leave entitlements.
Of the seventeen people Kenel employed between September 2018 and September 2019, only one had an employment agreement, which they had supplied themselves.
The wages and time records lacked sufficient detail, which made it impossible to tell whether workers had been paid at least the minimum wage.
The ERA determined the breaches were intentional and Kenel “took no steps throughout his history as an employer in New Zealand to familiarise himself with his legal obligations” and was “wilfully blind”.
Regarding this case, McMillan says employers have a responsibility to get the basics right no matter how long they’ve been operating.
“The industry has taken some steps over the last few years, by setting expectations and establishing assurance systems and has support readily available for farmers on matters of employment,” he said.
“This makes it even more disappointing that there are still dairy farmers who are failing to get the minimum requirements right and raises a question around the due diligence the industry has in place.”
