OPINION: Dairy farm employers have long since been given fair warning about the dodginess of paying workers below the minimum wage for those longer hours worked during hectic times like calving.
They cleave to the practice on the grounds that, because they make amends during the quieter dry season, it works out in the long run.
But in legal terms the long run doesn't get you there. This seasonal averaging, when it's applied to workers on or around the minimum wage, tends to break the law.
Farmers, or some of them, might want to bend your ear on why this is an unreasonable rejection of a practice that is essentially having a stabilising effect.
They'd have you know that this law was clearly put together by people with no appreciation of the naturally occurring peaks and troughs in the hours worked on a farm.
Here's a comparison that will irritate some farmers, but really, their case isn't all that dissimilar to trying to get off a speeding prosecution after getting pinged at 160kmh, by explaining that later in your journey you slowed way down to 40kmh, so the speed was legal, on average.
Whether or not our minimum wage legislation is a dumb law, the fact remains it is one. Farmers need to live with it unless or until they are able to get it changed.
And that's by no means a given. It's a law that would make sense to most New Zealanders. It requires pay rates not only to be at least $13.75 for each hour worked - but also to be paid out in a timely fashion. Not with great chunks withheld on a fix-you-up-later basis.
The law is not prepared to drum its fingers while the seasons pass for the difference between 40 hours' work and 60 hours' work to be paid out to the person who earned it.
Granted, many a small businessman who has been kept waiting, sometimes ruinously long, for his bill to be settled will be thinking "cry me a river". But as far as employees go, them's the rules.
And yet, when Labour inspectors for the Ministry of Business, Innovation and Employment visited 10 Southland dairy farms in August, they found three had not been keeping accurate records of the hours their employees worked and on further investigation each had underpaid their employees.
Labour inspectorate regional manager Kris Metcalf believes the result reflects what has been happening in the industry as a whole, and for a long time.
That's the thing. Warnings against the practice, certainly in the columns of The Southland Times, have been clear enough and frequent enough for long enough.
And however cleverly the contracts with workers might be worded, the fact remains you can't contract your way out of the laws of the land, which in terms of minimum wage entitlements have been drafted without the use of the word "eventually".
Some contracts simply apportion a year's pay in equal weekly instalments. A recent determination of the Employment Relations Authority put one of these under scrutiny and sure enough the bottom line was, that a salary cannot be used as a mechanism to avoid the minimum wage rates set out by law. This meant that for 58 per cent of his employment, the worker had been paid at less than the legal minimum.
This is not a law that goes away if you ignore it. Most laws aren't. Further enforcement sternness would appear to be in order.
- © Fairfax NZ News
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