A labour supply company to the kiwifruit industry in the Bay of Plenty and its sole director have been penalised a total of $100,000 by the Employment Relations Authority after being found to have underpaid three employees over several years.

Asad Horticulture Limited, which is now in liquidation, was ordered to pay $70,000 for breaching minimum employment standards and for being in arrears with paying the employees holiday pay entitlements. Sole director and shareholder Mohammad Asaduzzaman must pay $30,000 for the same breaches.

The penalties will be paid in quarterly instalments of $5,000 each by Asad Horticulture and Mr Asaduzzaman.

The Labour Inspector in the case said the workers were temporary visa holders and, as such, were vulnerable, the arrears owed were significant and Asad Horticulture’s and Mr Asaduzzaman’s record keeping breaches were “systemic”.

Following an agreement with the Labour Inspectorate the company and Asaduzzaman have paid the affected employees $45,170.13 in arrears.

Asad Horticulture Ltd was placed into liquidation on 14 August this year.

Kevin Finnegan, Lead Inspector, Strategic Alignment and Primary Sector Lead, said it was encouraging that Asad Horticulture Ltd and its owner had taken responsibility for the breaches. “However, it is disappointing that it took a full three years before full payment of the arrears was made.

“Nevertheless, this is a positive outcome because the Labour Inspector in this case showed tenacity to achieve the right outcome for the complainants, despite the time it took.”

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In reaching his decision on the penalties to be imposed, Authority Member Andrew Dallas said Asad and Mr Asaduzzaman’s willingness to participate in mediation, agree upon arrears of wages and pay these in full were mitigating factors. However full payment was not achieved for three years from the complaint being made and should be considered “late performance of duty” rather than being seen as an act of contrition.

Mr Dallas denied an application for permanent non-publication orders in favour of Asad and Mr Asaduzzaman.

“The Authority is bound by the presumption of ‘open justice’. While there may be occasions where this presumption can and, indeed, probably should be departed from, this is not one of them. There is the utmost public interest in compliance with, and the enforcement of, minimum employment standards. Conduct of the type evidenced in this determination should not be shielded from the public gaze by legal nicety,” he said.

“While it is appreciated that publication may be disconcerting for others closely associated with him, he must, however, take full, and untrammelled through publication, responsibility for a state of affairs of his own creation.”

Mr Finnegan said while the Labour Inspectorate prefers to support employers to get it right and be compliant when they breach employment standards, “we do not hesitate to take enforcement action when it is justified, as it was in this case where three vulnerable workers were owed over $40,000 in holiday entitlements.

“We appreciate the fact that non-publication orders were declined as the Inspectorate works closely with Zespri to ensure their supply chain remains free of non-compliant contractors and growers to ensure there is fairness for all those operating in the kiwifruit sector.”

Note:

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