STUFF
The Employment Relations Authority routinely names those involved in the cases it hears, regardless of whether they win or lose. That could change if moves to hide identities are successful.
A company taken to the Employment Relations Authority nine times in under two years is being cited as an example of the need to "name and shame" bad bosses.
BF7 Trading, which operates under the name of Filled Roles and specialises in placing Filipino migrant workers, has been ordered to pay almost $80,000 in wages, compensation, penalties and costs.
Details of the BF7 cases are freely available by searching the ERA's online database, but there are calls to stop routinely publishing the names of parties involved in such disputes unless it is clearly in the public interest.
Unions and migrant advocates argue the current system is having a chilling effect on workers willingness to seek redress for being under paid, unjustifiably dismissed or otherwise exploited.
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They fear that being identified, via the database and in media reports, will jeopardise their future job prospects, and as a result many accept confidential settlements that are lower than payments they would win through the Employment Relations Authority (ERA).
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The Employment Relations Authority's online database of decisions makes it easy for recruitment agencies and employers to check whether prospective employees have been involved in cases.
A review of the wider dispute resolution system likely to begin next year will consider the naming issue.
The ERA has the power to prohibit publication and the Ministry of Business, Innovation and Employment (MBIE) says its views will be taken into account.
Authority chief James Crichton says members are likely to consider a reversal of the existing position where, in the absence of a successful suppression application, names are automatically published.
At this stage it is impossible to say whether anonymity will apply to both complainants and defendants, but he says there is an argument for both parties to be treated equally.
There is evidence prospective employers and recruiters check the internet for evidence of any legal proceedings taken by job candidates "and that this phenomenon makes it difficult for some litigants to find work after bringing a case in the authority".
Non-publication is rare with 25 instances recorded over the past two and a half years.
E tu union lawyer Anne-Marie McInally says suppression usually only occurs in cases where there are allegations of sexual impropriety or other quite sensitive material.
She is mindful of that when advising workers of their options.
"I make sure they understand that if they go to the authority, then their names can be reported and are likely to be searched by recruitment agencies ... people are very nervous about being put in that position.
"I've had people who have gone to a recruitment agency and been told, 'come and see us when your case is all over'."
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Deciding who should get name suppression in employment cases is likely to be a delicate balancing act.
McInally says repeat offenders like BF7 Trading are perfect examples of employers who deserve to be publicly exposed.
Because of its history of breaching labour laws, BF7 is on Immigration New Zealand's list of employers stood down from recruiting migrant workers for a year.
However, its trading arm, Filled Roles, continues to act as a sales agent for the likes of Radius Contracting, a migrant recruiter which recently made headlines for a migrant worker village in an Auckland warehouse facing closure over fire safety and consenting issues.
Filled Roles' website lists promotes itself as company that delivers "quality staff, fresh to you daily" and cares about its workforce and industry partners "like they're family".
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E tu Union lawyer Anne-Marie McInally would prefer parties to remain anonymous in ERA decisions, with discretion for that to be waived in certain cases.
The nine cases heard by the ERA since December 2017 mostly involve construction workers, and a decision last year noted that an aggravating factor was BF7's pattern of poor business practice, something it had drawn to the attention of the Labour Inspectorate.
A carpenter awarded more than $24,000 for unjustified dismissal and wage arrears was told he no longer had a job while attending the funeral of a close relative in Fiji.
He said he was taking legal action over money he was still owed.
Another carpenter who won a case of unjustifiable dismissal asked the ERA to make BF7 director Spencer Bishop personally liable for the $5000 he was awarded but it declined to do so.
The most recent ruling in late June found BF7 Trading had defaulted, not for the first time, on a payment plan for a $12,000 settlement, and the authority ordered the company to pay the $7000 outstanding, and a $2000 penalty.
STUFF
This Grafton Liquor Spot store owned by Shalini Limited and its sole director and shareholder Venu Mohan Reddy Beerapu were publicly named when the company was ordered to pay $200,000 for failing to pay minimum wages and holiday pay to migrant workers.
Bishop says he hopes to have all debts to workers paid by the end of the year.
He says the company has placed almost 100 Filipino migrant workers throughout New Zealand in jobs ranging from construction and boat building to truck driving.
Problems arose because the company did not have the right systems and it had "massively" cleaned up its act.
"We were quite young and naivety kicked in and we probably did not understand what the ERA was. We made mistakes and we've paid for it and are still paying for it."
Radius Contracting director Mark Hubble described Bishop as a "professional guy" who had done contract work for him for about nine months.
Two Auckland construction businesses, both of whom declined to be named, were less impressed with their experience of hiring Filipino workers through Filled Roles.
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MBIE has a debt collection unit to ensure employers pay ERA settlements and fines for labour infringements, but it does not collect statistics on repeat offenders appearing before the authority.
One called police last month and issued a trespass order against Bishop when he refused to leave their offices over a dispute about the accuracy of invoices, and it had received up to 30 phone calls a day from Filled Roles demanding payment.
Bishop confirmed the trespass incident, but said the business owed him a considerable amount of money, and he had visited in person because management would not answer phone calls or respond to emails.
Another construction company says Filipino temporary workers supplied by Filled Roles lacked appropriate health and safety gear and were unhappy.
"Every single worker that came from them begged to be able to stay, they didn't want to go [back].
Bishop says he had complied "100 per cent" with requests from the Labour Inspectorate, but according to national inspectorate manager Stuart Lumsden, the company's employment records are still being assessed.
He says efforts are also being made to ensure employers cough up ERA awards payable to the inspectorate.
Since October a new MBIE debt collection unit has recouped $400,000 in ERA settlements and fines for labour infringements. A further $1 million is outstanding.
Stuff asked MBIE how many employers had appeared repeatedly before the ERA, but the government agency does not keep those statistics.
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First Union general secretary Dennis Maga says employers use the threat of being named in ERA decisions to persuade workers to accept confidential settlements, and this means a history of poor behaviour remains hidden from regulators such as the Labour Inspectorate.
First Union general secretary Dennis Maga says that is part of the problem and he wants more resources devoted to monitoring companies with poor track records,
He believes that fear of publicity is partly responsible for the fact that, since 2012, about 90 per cent of employment cases handled by the union had been settled through mediation where the parties were bound by confidentiality agreements.
Maga says a law change is needed so MBIE and the labour inspectorate are automatically notified of such settlements because that would reveal patterns of bad behaviour currently slipping beneath the radar.
"Mediation gets money owed to employees, but the conduct and culture of the companies must be held to account."
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Industrial designer Gideon Soares received a $10,000 payout from the Employment Relations Authority after his former boss, Fullstop owner Helen Harrison, called him "my little Injun". (File photo)
The anonymity issue came in for discussion at a recent Wellington symposium on barriers to pursuing employment claims that was attended by lawyers, academics, unions, business representatives, ERA members, and Employment Court judges.
Business NZ manager of employment relations policy Paul Mackay says there was a general consensus that the present system means someone who is potentially unjustly accused faces the double jeopardy of getting off then, then being penalised by publicity.
He says the Family Court system, where parties are identified only by initials, has potential for the ERA, but he agrees there is still a strong argument for identifying those guilty of genuinely exploitative behaviour.
"Ultimately if it's a practice nobody would condone, then not being identified allows them to continue to operate invisibly."
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