| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 175 |
| Determination date | 05 November 2014 |
| Member | D Appleton |
| Representation | G Gimblett ; J Bowden (in person) |
| Parties | Borsboom (Labour Inspector) v Bowden t/a JP & JD Bowden Partnership |
| Summary | PENALTY – Applicant sought penalty for respondents’ breach of Wages Protection Act 1983 (“WPA”) – Whether respondent charged employee (“S”) $7,000 premium for employment – Applicant also required to pay own tax – Employment agreement drafted to mislead Immigration New Zealand into granting work visa to S – Milk delivery |
| Abstract | AUTHORITY FOUND –;PENALTY: S charged by respondents in return for respondents agreeing to assist in deceiving immigration authorities as to S’s role and hourly pay rate, and for employing S despite real role not meeting minimum requirements for obtaining work visa. S charged premium for employment. Respondents’ actions undermined integrity of New Zealand immigration scheme but separate legislation governed respondents’ conduct impacting upon immigration laws. Breach of WPA serious but not at top end of scale. Respondents breached WPA multiple times by receiving five payments. Situation would have had adverse financial impact on S. S vulnerable to pressure from respondents as migrant worker. Knowledge that employers would face significant penalty for turning blind eye to employment legislation when dealing with migrant workers most effective deterrent. Respondents expressed contrition and repaid money to S. $5,000 penalty appropriate. Authority ordered payment by instalments given respondents’ financial position. |
| Result | Application granted ; Penalty ($5,000)(payable to Crown) ; Costs reserved |
| Main Category | Penalty |
| Statutes | ERA s135;ERA s135(2);ERA s135(2)(a);ERA s135(4A);ERA s136(2);ERA s161(1);ERA s161(1)(m)(v);Immigration Act 2009;Partnership Act 1908 s13;Wages Protection Act 1983;Wages Protection Act 1983 s12A;Wages Protection Act 1983 s13 |
| Cases Cited | Lin v Zhou [2012] NZERA Auckland 43;Sears v The Attorney-General in Respect of the Controller and Auditor-General, Audit Department [1994] 2 ERNZ 39;Tan v Yang [2014] NZEmpC 65;Xu v McIntosh [2004] 2 ERNZ 448 |
| Number of Pages | 11 |
| PDF File Link: | 2014_NZERA_Christchurch_175.pdf [pdf 193 KB] |