The Department of Labour’s Enforcement Principles
The role of the labour inspector is to protect employees in workplaces through a range of responses from proactive engagement with a firm to the enforcement of statutory minimum employment rights. The role also includes providing information and assistance to workplaces to support sustained compliance.
When considering an enforcement response, both informal and formal options may be applied. The approach of the inspector is to be firm but fair and in the course of their work they will make judgements and choices about which enforcement option to use, who the focus of enforcement might be, and the intensity of the enforcement response. In making judgements and choices about enforcement options, they are guided by a framework of policies, procedures and principles. These are outlined as follows:
Consistency
Consistency of approach does not mean uniformity. It means taking a similar approach in similar circumstances to achieve similar ends. We will respond consistently when dealing with similar cases – but our approach will also reflect the specific circumstances of each case.
Action proportionate to the non-compliance
Our enforcement response will be proportionate to the seriousness and extent of any breach. This means that decisions about the resources applied to a problem and the nature of the action taken by an inspector will be influenced by the seriousness of the matter, the scale of the problem and the history of the case. For instance, a greater resource, or firmer stance, may be chosen where the problems are geographically widespread, or systemically imbedded in an organisation.
Public accountability
In certain cases, public expectation of accountability through formal processes is heightened. Situations may arise where large numbers of employees are involved or serious deprivation results from non-compliance and in these instances different and more appropriate actions are more likely.
We will ensure our expectations of employers and employees are made clear. We will also assist parties to understand our approach to enforcement and provide an opportunity at every stage to ask questions.
We will periodically review and audit enforcement decisions to ensure they are consistent with this guide and any other relevant policies and procedures, and we will maintain internal systems designed to learn from our enforcement activities.
Enforcement activity can generate considerable public interest and this may result in people and organisations outside the Department requesting details of inspections, investigations and prosecutions. We will manage any such requests in accordance with the Employment Relations Act 2000 (section 233(5)), the Official Information Act 1982, the Privacy Act 1993 (where relevant) and common law principles of reasonableness in relation to the exercise of our discretion.
Fairness
Our enforcement responses will be fair, impartial and undertaken with the highest integrity. In practice, this means we will ensure any person directly affected by our decision-making will have an adequate opportunity for representations to be made and considered before a final decision is made. We will also ensure our decision-making is reasonable given the circumstances, unbiased, conforms to the principles of natural justice, and is consistent with any previous representation(s), or is in accordance with the way in which other, similar cases have been handled.
Prioritisation
We will target our enforcement activities to focus attention on particular risks associated with categories of employees, specific sectors, or work practices, where non-compliance or patterns of non-compliance are of particular concern.
