The phone records of broadband installers were used in an employment investigation. Photo / Stock Image 123RF
The phone records of broadband installers were used in an employment investigation. Photo / Stock Image 123RF
GPS data has been used to prove three migrant workers were underpaid in their broadband installation jobs - leading to a bill of more than $126,000 for the company and its top brass.
Last year the Labour Inspectorate brought proceedings against Dunedin-based telecommunications company Abhi Patel Enterprises Limited and its director Mehul Navin Patel for breaches, including failure to keep accurate records, including times spent by the workers out on installation jobs.
This led to breaches in employment conditions, including holiday and sick leave entitlements owed to broadband installation technicians, Vishwas Patel, Parth Modi and Naveen Kumar.
Abhi Patel Enterprises was a subcontractor of Visionstream (now Ventia), which contracted to broadband installer Chorus at the time. Chorus has told NZME it has since blacklisted the business from its network.
The Employment Relations Authority (ERA), which has jurisdiction to hear and determine an application by a labour inspector for recovery of penalties, has now ordered Abhi Patel Enterprises and its director to pay a combined total of $116,000 in penalties.
The three former employees will each receive $6000 in compensation from the penalties paid, and the remainder will be split between the Crown and the Labour Inspectorate.
One of the former employees has also been awarded more than $10,000 in arrears.
Inconsistencies in records between the employer and the workers were discovered during an investigation after complaints from the three men about irregularities in their pay, including not being paid a full eight-hour day; holiday pay owing and a suggestion that one worker had been charged a “premium” by the director to secure employment.
The Labour Inspectorate brought proceedings last year against a telecommunications company for breaching minimum employment standards. Photo / Bevan Conley
The Labour Inspectorate began an investigation in April 2020 and using GPS data provided by the employees, found their job movements didn’t match the employer’s work records.
As part of their job, the workers had to regularly upload proof of their activities into a content management system via their phones.
The Ministry of Business Innovation and Employment (MBIE) told NZME that the system, named Pulse, is where technicians recorded details, including photos, of jobs they attended.
This provided evidence of the work that they had completed, with start and finish times confirmed by the workers’ GPS phone data.
MBIE head of compliance and enforcement, Stu Lumsden said in the absence of accurate records, investigators used the data to track the employees’ movements, and when compared with the employer’s records, they were found to be inaccurate.
He said it was a “classic case” where calculating entitlements was hampered by the company not maintaining accurate, wage, time and leave records in contravention of the law.
The total penalties initially sought against Abhi Patel were $320,000 - being 16 breaches at $20,000 each - and $160,000 against Mehul Navin Patel for 16 breaches at $10,000 each.
They were reduced because Patel accepted the breaches and because most of what was owed to the workers had been paid by the time the ERA reached its decision.
The ERA said the three employees were in a difficult work situation as they were reliant on Patel’s support for the continuation of their work visas.
“As migrant workers there would be some trepidation, if not reluctance, on their part to seek to enforce their employment rights in the face of losing their job and, potentially, also their residency,” ERA member Andrew Dallas said.
He acknowledged the pressure faced by the director to keep his business operating in a highly competitive environment and in doing so, recruit, train and retain appropriately skilled workers.
“However, that is no excuse for breaching minimum employment standards,” Dallas said.
“Most small businesses face the same pressures, yet manage to comply with their legal obligations.”
One of the workers told the ERA that in exchange for supporting his residency application, Mehul Patel insisted he paid him back regular cash sums from his wages.
Despite his wage progressively increasing over time to $25 an hour, his actual rate paid was approximately $20 an hour, the ERA said.
The worker claimed Patel instructed him to hand over the cash payments and to disguise them by getting cash back when buying groceries rather than utilising ATMs, which could “potentially alert the Labour Inspectorate and/or Immigration New Zealand to suspicious transactions”.
Patel denied the allegation and accused the worker of fabricating evidence that supported such claims, including WhatsApp messages which contained hand-written calculations and spreadsheets detailing money owed.
Patel alleged the worker had access to his mobile phone and that he had composed messages to himself and then deleted them from Patel’s phone.
The ERA found this was implausible and that it was more likely Patel had obtained cash payments from the worker.
It added that while most of the breaches of the minimum standard were acknowledged and most of the arrears had been paid to the workers by the time the matter was determined, several breaches were contested for a significant period of time.
The ERA said this showed “elements of obstructiveness” on the part of the company and its director.
“The sums involved were comparatively, relatively small but would have been of great value to low-paid workers, who were entitled to be properly paid in a timely fashion,” Dallas said.
The ERA said in ordering penalties of $78,000 against the company and $38,000 against the director, that they were proportionate given the severity of the breaches and within the context of there being three workers involved.
From the director’s penalty, $6000 was to be paid to each of the three former installation technicians.
Abhi Patel Enterprises Limited was also ordered to pay $10,520 to Naveen Kumar as an unlawfully obtained premium from him.
MBIE said the determination sent a clear message on how important it was for employers to maintain accurate records and ensure minimum wage entitlements for employees.
