Additional Guidance
The following provides specific guidance relating to enforcement:
Systems for maintaining compliance
Employers develop systems for maintaining compliance that are both prescribed in law and developed to meet the needs of the business. Two such mechanisms are the wage and time records and employment agreements.
Employers are required to keep a wages and time record for all employees, specifying details such as: the nature of the work and the type of employment agreement covering the employee; the hours of work; and the wages paid. Not to maintain such a record is a breach of the law and a penalty may be imposed by the Authority.
A key mechanism for developing sustainable compliance is the maintenance of employment agreements which ensure that expectations are clear for parties to the employment relationship. Every employer must retain the individual employment agreement or terms and conditions of employment, whether signed or unsigned, and a copy must be provided to the employee on request. The agreement may be an individual agreement or a collective agreement (to which a union must be a party).
Application of mediation services
An employee or employer may access mediation for any employment problem; however, at times the labour inspector may also encourage the use of mediation services to resolve a complex complaint. This may occur where there is a lack of clarity about the facts of the case or where a claim has been made by the employee and a counter-claim is lodged by the employer resulting in conflict between the parties.
Mediation is a process in which the participants, with the assistance of a mediator, consider disputed issues in order to develop options, consider alternatives and reach agreements that will accommodate their needs. This process may occur by telephone, by email, in the workplace, or in a mediation room. Mediation may assist a speedy resolution of the matter; however, it does not serve as a means to extinguish obligations to pay the employee in accordance with the minimum requirements of the law.
A labour inspector may also support an employer and employee to reach a binding agreement in writing. A recorded settlement may then be signed by a mediator to affirm the agreement. Such an agreement is enforceable by the parties in the Authority.
Cultural appropriateness
A significant proportion of the New Zealand workforce is made up of people from non-English-speaking backgrounds. As such, levels of English may vary widely and other cultural issues may need to be considered as part of the enforcement process. We will endeavour to recognise and respond to the differing needs of Maori, Pacific peoples, those from other ethnic groups, and new migrants.
Where another agency is investigating
On occasion, an investigation to recover monies by a labour inspector may coincide with a criminal investigation involving the New Zealand Police. As a general rule, labour inspectors will pursue the action relevant to their jurisdiction, unless the compliance issues relate to the same matter and it would be more practical to conduct an investigation at the conclusion of the Police investigation.
Obstruction of inspectors
Our inspectors must be able to conduct their activities without obstruction. This supports both employers and employees, by ensuring that all the facts are available and decisions are based on the best possible evidence.
Any person who obstructs or delays, hinders or deceives an inspector while they are carrying out their lawful duties is liable on conviction by the Employment Court to a fine not exceeding $10,000.
