A Waikato berry farm and its director have been fined $120,000, a portion of which will go to more than 200 affected employees, after "numerous" employment breaches involving its migrant workers.
The substantial fine handed down by the Employment Court to Matangi Berry Farm and its owner Jiubo Jiang is on top of the $45,000 paid back last year after mediation before the Employment Relations Authority.
It comes after its neighbouring berry farm, Ye Olde Berry Farm on Tauwhare Rd, was last month ordered to pay $76,532 in unpaid minimum-wage and holiday pay.
Its managing director, Andrew Peter Molloy, was made personally responsible for an additional $10,000 in penalties. The offending was in relation to 304 of its employees, many of whom were migrants, and subsequent poor record-keeping and failure to provide workers with employment agreements.
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Matangi Berry Farm's offending also involved minimum-wage and holiday-pay breaches, as well as failing to keep proper records and failing to provide and retain employment agreements.
The Labour inspector said while the losses to each employee were not significant - about $200 for each of the 207 employees - the company received a 12 per cent commission for hiring them out to a local blueberry orchard for work.
In his findings, Judge Bruce Corkill ordered Matangi Berry Farm pay penalties totalling $86,400 and Jiang a further $40,800. The judge ordered each of the 207 employees be paid $200, with the balance to go to the Crown.
The judge took into account Jiang's financial hardship and the fact his offending was not deemed deliberate.
The penalties would be paid in four equal quarterly instalments beginning September 1, 2020.
The offending occurred between November 2015 and October 2017, when the berry farm hired out 207 of its employees - hired through advertising on backpacking and Skykiwi websites - for seasonal work at Blueberry Country in Ōhaupō.
The first defendant did not provide the seasonal workers with written employment agreements, instead getting them to sign a form with their personal contact details including IRD number, tax code and bank account.
Labour inspector Christine McLean gave evidence on how she felt misled after interviewing Jiang's son, Shuai, instead of himself.
McLean explained to the court that this made her investigation "more complicated and convoluted than it needed to be".
In his evidence, Jiang stated that he cannot speak or read English, and needed to rely on English-speakers to communicate for him, namely his son and other berry farm managers.
His son had been appointed under a power of attorney to render assistance to him for personal property and business matters in New Zealand.
He thought this meant his son was authorised to act and speak on his behalf and to sign his name on any documents and felt there was no difference between what his son said on his behalf and what he would have said.
Jiang said he did not know how to use internet banking, so relied on his son to make necessary payments from the berry farm's bank account.
The labour inspector found there had been "undue reliance" on Blueberry Country, which in turn led to failures and breaches by Matangi Berry Farm.
Although being confused, Jiang said he took responsibility as the company director.
Judge Corkill accepted the breaches were compounded by Jiang's language issues, which meant that over many years he relied on others without attempting to educate himself on fundamental employment principles.
He also accepted Jiang's poor financial position due to him having to borrow money from friends and relatives to pay last year's outstanding monies.
Financial reports for the company between 2014 and 2019 show losses in three years, minimal profit in one year, modest profit in others, and modest shareholder salaries with PAYE deducted.
"On the facts of this case, it is obvious there was a very significant imbalance of power. It is clear from the material before the court that English was the second language of the migrant workers involved, and that they had no knowledge of basic employment rights in New Zealand.
"They were on working holiday visas in a foreign country, away from their family and friends."
Those issues were compounded by the fact that the company, through its director, Jiang, set up a system that "paid no heed to minimum employment standards".
"The status of the workers was not properly understood, and accurate records that would allow the workers entitlements to be checked did not exist.
"The Labour Inspector accepts that this was not deliberate, and it was no doubt catalysed by the fact that Mr Jiang did not understand English. He relied heavily on others. All of this however, meant that the objects of the ERA were compromised."
Although the judge gave Jiang and his company credit for making the agreed payments, the former employees would receive them three or four years after they were due and only after proceedings were issued.