A Napier developer’s year-long bid to overturn an Employment Relations Authority (ERA) determination ordering he and his construction company to pay penalties of $96,000 has failed in the Employment Court.

In July 2023 the ERA ruled that MAH Enterprises (Fiji) Limited must pay a penalty of $64,000 and its sole director Malcolm Herbert a penalty of $32,000.

The penalties order followed a Labour Inspectorate investigation which started in 2021 in which it was alleged Herbert and MAH Enterprises had committed 42 breaches of employment law involving 10 migrant workers and four Kiwi employees.

Half of the penalties amount ($48,000) was ordered to be paid to the 14 workers.

The breaches included failure to keep wages and time records, holiday and leave records, failure to provide annual holiday entitlement and providing an employment agreement which was not legal.

Employment Court ruling

In her ruling Employment Court Chief Judge Christina Inglis said the challenge to the ERA determination had been made in 2023 but Herbert and MAH Enterprises had subsequently made no attempt to follow up on the challenge. She said the delay was “inordinate and inexcusable” and was similar to what had happened at the ERA hearing.

“I accept that the delays have been prejudicial in terms of time and expense and the diversion of valuable (and limited) Labour Inspectorate (publicly funded) resources. Moreover, the ongoing delays are prejudicing the 14 employees at the centre of the proceedings who were to be paid a portion of the penalties awarded by the Authority and who are facing ongoing uncertainty as to their position. They are entitled to closure.”

Chief Judge Inglis ruled that it was “in the interests of justice” that Herbert and his company’s challenge to the ERA penalties determination be dismissed.

She also ordered that Herbert and MAH Enterprises pay the $9,799 costs of the failed application.

ERA hearing

At the ERA hearing in 2023, Authority member Sarah Kennedy-Martin said the fact that MAH Enterprises had employed migrant workers, who were entitled to be treated with respect, was an aggravating factor.

“They are particularly vulnerable because of their migrant status. Work visas are sponsored by the employer and tied to the employer and it is evident from material in the Labour Inspector’s report that accommodation for migrant workers was also tied to MAH.”

Ms Kennedy-Martin said the inspector had been unable to investigate properly because Herbert and the company had consistently failed to provide all the information requested and required.

“Despite repeated attempts to engage with Mr Herbert to obtain the material required to complete her (the inspector) investigation, Mr Herbert either did not respond, sought extended deadlines that he also did not meet and then, when he provided information, it was not complete.”

Herbert and MAH Enterprises produced no evidence or legal submissions to support their defence during the hearing. At one stage Herbert sent an email to the ERA claiming he could not file submissions because of the Napier floods and on another occasion because of a burglary.

Stalling tactics

Brendon Strieker, the Labour Inspectorate’s Southern region Compliance Manager, said Herbert and his company had repeatedly tried to delay proceedings which had been frustrating for the Labour Inspectorate and unfair to the workers involved.

“It is pleasing that these stalling tactics have not been successful. Hopefully, these vulnerable workers will now receive some compensation for what they have been through.

“The Inspectorate views exploitation as among the most serious breaches of employment standards. Our inspectors will continue to seek out non-compliance with minimum employment standards and take appropriate enforcement action where exploitation of vulnerable workers is identified.”

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