A while ago I mentioned the importance of farmers paying their employees at least the minimum wage for the number of hours worked in each pay period.
I still encounter farmers who are paying their employees below the minimum wage during busy periods, and "averaging" out their salary over the year.
I can not stress this enough - seasonal "averaging" in the agriculture sector is not lawful. It is in breach of the Minimum Wage Act.
This recent case reiterates my point.
A Stratford farmworker, Mr X, was employed as a farm assistant between November 2, 2010, and October 19, 2012, by Mr Y (the employer).
Mr X was paid a salary of $30,000 per annum, which increased to $32,000 per annum in April 2012. His hours of work were 49-60 hours a week, which would drop to 38-44 hours a week in the dry season.
Towards the end of his employment, Mr X lodged a complaint with the Ministry of Business, Innovation and Employment about his rate of pay.
An investigation by the Labour Inspectorate began into whether the employer kept accurate time and wage records, whether Mr X received minimum wage, and whether he was owed wage arrears.
The Labour Inspectorate identified that Mr Y had not kept accurate time and wage records, breaching the Minimum Wage Act, and that wage arrears were owed to Mr X.
A demand notice to repayMr X $6473.77 in wages arrears was issued to the employer. Mr Y objected to the notice (employers have a statutory right to object under the Employment Relations Act), and argued that the labour inspector did not have the jurisdiction to enforce provisions within the employment contract, and that the dry season "overpayments" would be offset against the instances when Mr X was paid under the minimum wage.
Mr X's employment contract did not state the exact number of hours he was required to work: "normal start time will be 5am and hours of work each week shall be directed by the employer, and may be on any, or all days of the week". It did state that "salaried employees will be paid by equal weekly instalments".
The act provides that a worker is entitled to receive from the employer payment for his or her work at not less than the "minimum rate".
Minimum Wage Orders of 2010, 2011, and 2012 provided the minimum wage for the following periods of time either by hour, piecework, day or week.
The Employment Relations Authority found that Mr Y did not keep accurate time and wage records, had failed to pay Mr X the minimum wage in equal weekly instalments, and was ordered to pay the amount in arrears.
This is the harsh reality for all farmers who employ workers in any industry where they pay a salary and there are seasonal variations in working hours. While hours may increase significantly during calving, and decrease in the dry season, a salary cannot be used as a way of paying workers less than the minimum wage during calving.
The decision follows a recent investigation by the Labour Inspectorate into the dairy industry, focusing particularly on the accuracy of wage and time keeping records.
Labour Inspectorate general manager George Mason said that "employees should be receiving at least the minimum wage for the hours, days and weeks actually worked, and employers must maintain accurate time and wage records to ensure that this occurs".
He warned that any breaches of minimum employment rights were taken seriously.
Non-compliance attracted fines of up to $10,000 for an individual and $20,000 for a company.
"I would encourage anyone in this situation or who knows of people in this situation to phone our call centre on 0800 20 90 20, where concerns will be handled in a safe environment," he said.
I trust this will be a wake-up call for farmers who are not keeping accurate records, and a warning to fix these and check their wage payments to workers to avoid being fined or taken to court by their employees.
» Mary-Jane Thomas is a partner at Preston Russell Law. E-mail questions to email@example.com.
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