GUIDANCE FOR ESCALATION OF MATTERS TO THE
LABOUR INSPECTORATE
NOVEMBER 2018
IDENTIFICATION OF MATTER
Identification is determining whether a matter is appropriate for escalation to the Labour
Inspectorate. There are
only two mandatory criteria that need to be met for escalation:
THE MATTER MUST BE WITHIN JURISDICTION OF THE LABOUR INSPECTORATE
The matter:
must be
confined to minimum employment standards;
and
there must be a
clearly identifiable breach of minimum employment standards (i.e. one that
the complainant believes has occurred or is occurring, not one which may be about to
occur).
FURTHER CRITERIA FOR INDIVIDUAL ONE-OFF BREACHES
under the
If the matter presents as an individual one‐off low‐level breach (as opposed to a serious or systemic
breach), then ensuring the employee (i.e. not the person who may be calling on behalf of the
employee) has
a correct understanding of the legislation pertaining to their issue;
taken reasonable steps to attempt to resolve the problem themselves; and
does not have any formal representation.
GUIDANCE
Released
The following tables outline examples of matters which may be referred to the Labour Inspectorate
and those which should not be referred.
TABLE 1 – MATTERS WHICH MAY BE ESCALATED TO THE LABOUR INSPECTORATE
The following matters containing identifiable breaches of minimum employment standards may be
referred to the Labour Inspectorate:
Official Information Act 1982
Criteria
Details
Situations
that
are Any matter (including matters of exploitation and systemic issues)
confined
to
minimum that is referred to the Labour Inspectorate must be confined to
employment standards
minimum employment standards legislation. Labour Inspectors
have no jurisdiction to investigate or enforce contractual issues
(including disputes and personal grievances).
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Situations where there is Calculated abusive conduct that marks serious departure from
serious
exploitative legislated standards in respect of vulnerable workers (even if only in
conduct
respect of individuals or small numbers). Examples include:
An employee has paid an employer a substantial amount of
money to secure employment with that employer (a premium).
An employer is regularly paying his employees at a rate clearly
under the minimum wage.
An employer is regularly making substantial deductions meaning
his employees are in effect working for very little, or no pay.
Mid‐to‐large
systemic Which in themselves do not have large consequences for individuals,
breaches
but when aggregated across a workplace have large consequences.
Examples include:
Employees in an medium sized takeaway food franchise are not
receiving time and a half for working public holidays (there are
the 1982
20 or more employees affected);
Employees in a nationwide home electronics store are not
receiving time and a half for working public holidays (the value
Act
of arrears for these unpaid entitlements would likely be
$100,000 or more).
under
Individual one‐off low level A breach of minimum employment standards which is an individual
breaches
issue (i.e. affects three or less employees) and is limited to the
particular individual circumstances. There is an expectation that the
complainant has:
a correct understanding of the legislation pertaining to their
issue;
taken reasonable steps to attempt to resolve the problem
themselves; and
Information
Released
does not have any formal representation.
Examples include:
An employee has not received holiday pay upon termination of
employment;
An employee has had a deduction made from their pay without
their written consent;
Official An employee has been paid a training wage despite being eligible
for the adult minimum wage.
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TABLE 2 – MATTERS NOT TO BE ESCALATED TO LABOUR INSPECTORATE
The following matters, although they may contain minimum employment standards matters,
are not
to be referred to the Labour Inspectorate.
Criteria
Details
The same matter has been If LSERT has already dealt with the matter we likely would have
previously dealt with by suggested that the parties seek mediation. If another part of ES
LSERT / The same matter is branch is dealing with the matter or the matter is with the ER
currently being dealt with Authority, then best the matter continue to be dealt with by that
by
another
part
of unit or the Authority as a whole matter.
Employment Services e.g.
mediation.
There are no details of the The Labour Inspectorate requires details (including identification
employer
and contact details) of the employer in order to conduct any kind of
the
follow‐up.
1982
If there are no details of the employer, then it is not a matter to be
referred to the Labour Inspectorate.
Act
The matter is
not confined Labour Inspectors have no jurisdiction over matters beyond
to minimum employment minimum employment standards. As the LSERT is effectively
under
standards
triaging for Labour Inspectors, the jurisdiction of this team does not
stretch beyond this either.
Minimum employment standards issues are often intermingled with
other employment relationship issues. The most common examples
here are
non‐payment of final contractual wages and holiday pay upon
termination
the employee has already raised a personal grievance with their
employer for unjustified dismissal and subsequently has not
Released
Information
received holiday pay.
These matters are best dealt with as one issue in the Employment
Relations Authority, via mediation.
If the matter involves contractual issues as well as minimum
employment standards (i.e. it is not confined to minimum
employment standards), then it is not a matter to be referred to the
Labour Inspectorate.
Official
There is
not a clearly There must be a clearly identifiable actual breach of any minimum
identifiable
breach
of employment standards matter raised by employees.
minimum
employment
If there does not appear to be a breach of minimum employment
standards
standards, or it is a potential breach which has not occurred yet (e.g.
the final pay day when payment is due has not occurred), then it is
not a matter to be referred to the Labour Inspectorate.
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Any “heads‐ups” or “tips” received from members of the public
about workplace issues which
may be occurring should be recorded
in CRM by CSA’s. This information should them be extracted from
CRM to supplement any reporting the Service Centre provides to
Employment Services Branch.
The employee wishes to The Labour Inspectorate is unable to recover wages for employees
recover wages which have who have agreed to a rate higher than the minimum wage, including
been
negotiated above the those who only want to recover an amount up to the minimum
minimum wage
wage. Wages agreed above the minimum are essentially a
contractual matter. Non‐payment of contractual wages is not a
breach of minimum employment standards.
The employee wishes to Withholding of wages is not a deduction, rather it is a breach of
recover contractual wages contract and therefore not a breach of minimum employment
which have been withheld standards.
by the employer.
the 1982
The
matter
involves Labour Inspectors only have jurisdiction to enforce minimum
contractual
entitlements standards legislation.
over
and
above
the
Act
If the matter involves contractual entitlements over and above the
corresponding
minimum
corresponding minimum standards, then it is not a matter to be
standards
referred to the Labour Inspectorate.
under
The issue is a dispute Where there is an indication that the matter, despite containing
between individuals or minimum employment standards breaches, is beyond that of an
family members
employment relationship and the issue is more to do with a familial
or interpersonal relationship breakdown. For example:
A family member or relative (including by affinity) working in the
family shop who believes, because of the long hours they
perform, that they are not receiving their minimum payment
entitlements;
Released
Information
An employer is withholding payment of final holiday pay from
the employee because the employee owes the employer a
private debt outside of the employment relationship.
If the matter involves a dispute between individuals beyond the
employment relationship, then it is not a matter to be referred to the
Labour Inspectorate.
Official
The
issue
involves Examples here include
minimum
employment The employee has not received holiday pay upon termination.
standards, but there is a
The reason the employer has not paid is because the employer
contractual
matter
or
believes the employee needs to reimburse the company money
dispute as to why the
as a result of an employment issue
minimum
employment
standards
have
been The employee has not received holiday pay upon termination.
breached
The reason the employer has not paid is because there is dispute
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as to how much notice was required to be given
The employee has not received holiday pay upon termination.
The reason the employer has not paid is because the cheque
presented to the employee bounced.
If the issue involves minimum employment standards, but there is a
contractual matter or dispute as to why the minimum employment
standards have been breached, then this is not a matter to be
referred to the Labour Inspectorate.
The employee has
formal Formal representation is a professional person or organisation which
representation
represents an employee in matters concerning their employment
and employer. Formal representation includes
being a member of a union
having immediate access to a lawyer or employment advocate.
Free legal advice provided by Citizens Advice Bureaux or Community
the 1982
Law Centres, or family/friend representation does not constitute
formal representation.
If the employee has formal representation, then they have the means
Act
to pursue the matter themselves via mediation / ER Authority, and it
is not a matter to be referred to the Labour Inspectorate.
under
The employee is employed Labour Inspectors do not have jurisdiction over collective
on a
collective employment employment agreements. Additionally, if an employee is covered by
agreement
a collective agreement, they will have formal representation (i.e. the
union party to the collective). The employee should be encouraged
to raise the matter with their union.
The
employee
wants The regional Labour Inspectorate may provide confidentiality under
his/her
name
withheld limited circumstances. However, the matters LSERT deal with are
from their employer
typically individual one‐off breaches, and in order to liaise with the
Information
employer and raise a breach then LSERT need to disclose who the
Released
complainant is. See also Anonymity below.
Official
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ESCALATION OF MATTER
The matter is escalated to the Labour Inspectorate using TIKA (web version). Guidance for TIKA and
business processes can be found here: [insert link]
INFORMATION REQUIRED
Once the matter has been identified as suitable for escalation to the Labour Inspectorate, the matter
then needs to be escalated to the Labour Inspectorate using TIKA. The Labour Standards Early
Resolution Team (LSERT) receives
all matters in the first instance. Complaints taken should be
submitted immediately upon taking the complaint.
NOTE TAKING SHOULD BE THOROUGH
Generally, enough information should be collected and recorded to enable the reader to understand
the situation which will potentially be followed up on by the Labour Inspectorate, as well as an
the 1982
understanding of the employee’s/complainant’s knowledge of their entitlements. As a minimum,
there should be a brief but concise description of the situation to enable the LSERT to quickly
ascertain that the issue is within jurisdiction of the Labour Inspectorate and specifically what the
likely breaches are.
Act
under
RELEVANT QUESTIONS SHOULD BE ASKED AND DOCUMENTED
The following are types of questions that could be asked and issues that should be recorded:
Which legislation is potentially in breach and why
Whether there is a written employment agreement in place, and what sort
Whether the complainant has discussed the issue with their employer/employee/other
party about the situation
The reason why the employer has taken the stance / action they have
Information
Whether there are others in the workplace who have similar issues
Released
How long the employee has been employed with the employer
When their employment terminated
Whether the employee is a member of a union
What appears to be the cause of these issues (e.g. ignorance of the employer, wilful non‐
compliance, etc.)
Official
How many employees are affected
What type of employee is affected
How large the workplace is
Which industry sector the employment is in
(If employee (or employee whom the enquirer is ringing on behalf of) appears to be a
migrant worker)
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o When they arrived in New Zealand
o Nationality of employee/s
o Whether employee can converse in English or whether Language Line is needed
Any other “flags”, such as prominence in the media.
The queue that the call presented in should also be noted.
THE COMPLAINANT’S EXPECTATIONS MUST BE MANAGED
It is important for the complainant to be aware that their complaint will be sent to a team within the
Labour Inspectorate for assessment, but that their issue may not be investigated by a Labour
Inspector. Upon receipt of information from an employee a LSO will perform an initial assessment in
order to decide what action to take with a matter. The following examples can be used to set the
complainant’s expectations:
“Your matter can be passed to the Labour Standards Early Resolution Team for assessment.
the
They will assess whether this is a matter for full investigation or whether it can be dealt with
1982
by providing the employer with guidance on how to resolve it directly with you.”
Then optional or as further explanation:
“If the matter is not investigated or the LSERT is unable to resolve the matter you remain able
Act
to take action yourself through mediation or the Employment Relations Authority.”
under
FULL CONTACT DETAILS MUST BE OBTAINED
As a minimum, the contact telephone number of each party to the matter should be collected.
CSA’s should endeavour to collect full contact details, including physical addresses and as many
phone numbers and email addresses as possible.
DETAILS OF THE PLACE OF WORK MUST BE OBTAINED
It is also important to note that a matter may not be referred if there are no details of the employer
Information
or the workplace. In the case of any matter which is being reported by someone not directly
Released
connected with the organisation (e.g. a concerned member of the public reporting a suspected
sweatshop or other serious exploitative practices), an address of the location of the place of work at
least must be obtained.
ANONYMITY
Official
DEFINITIONS
Term
Definition
Notes
Anonymity
The enquirer does not reveal As soon as an enquirer reveals their identity,
any information that
there can be no anonymous complaint.
identifies them.
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Confidentiality The enquirer reveals their
The Labour Inspectorate can never completely
identity but requests that
guarantee confidentiality. Additionally, for
their information be
individual low level breaches, the Labour
withheld by the Labour
Standards Early Resolution Team is normally
Inspectorate from other
unable to attempt to resolve a matter without
parties where able.
revealing the complainant’s details to the
employer. These expectations should be outlined
to the enquirer.
PROCESS
Subject to any listed exceptions (such as criteria in the Migrant Exploitation business process),
an
anonymous complaint can only be taken if:
anonymity is specifically requested by the enquirer;
and
an attempt has been made to obtain the enquirer’s details;
and the 1982
the enquirer is still unwilling to provide their contact details;
and
the enquirer has details of the employer or place of work.
If
any of the above criteria are
not satisfied, then an anonymous complaint
cannot be taken.
Act
Note that confidentiality and anonymity should
never be
offered to enquirers. The issue should be
raised or prompted by the enquirer. Collection of full details of enquirers should
always be
under
attempted.
Per above definitions, in the event that a person has provided their details, they are no longer
anonymous. This means that the Anonymity tick box on TIKA
should not be ticked.
Released
Information
Official
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