An app to prevent migrant exploitation is on the way
- Kim Leighton
- Apr 20
- 4 min read
Wellington barrister Dhilum Nightingale is involved in the development of a phone-based app called VERI-Mi that can track the user’s movements, including time of arrival and departure from their place of work.
The data captured can then be used to determine whether any unpaid overtime has pulled the employee’s real hourly rate below the minimum wage, which is currently $23.50 per hour. If that happens, the employer could be liable for back wages and a penalty if a complaint is made to the Labour Inspectorate, which is part of the Ministry of Business, Innovation and Employment (MBIE), or if the evidence is included in submissions to the Employment Relations Authority (also part of MBIE), usually through a lawyer or advocate.
If the company is in liquidation, then under Section 142W the underpaid employee can pursue any person (often the director) who was deemed responsible for the breaches of the Minimum Wage Act or Holidays Act.
The employee using the app does not have to disclose to their boss that they have it, and there is no legal mechanism to allow employers to ban the app as long as it’s installed on the employee’s personal phone.
Why not just use Google Maps?
In Wang v Happy Eating Ltd [2022] NZERA 424, the Authority noted:
[25] Sporadic reliance on the google location records to compile the handwritten record reduces the weight it can be accorded as an independent and contemporaneous document providing evidence of hours worked.
Because some work visas are tied to a particular employer, recent migrants are most at risk of what is now called wage theft, not only through breaches of the Minimum Wage and Holidays Acts, but also demands for unlawful “premiums”. A 2024 determination ordered the repayment of a NZD 21,000 premium, included in a total award of around $50,000. Users of VERI-Mi will be able to record photographic evidence of payment of unlawful premiums.
Here are two more examples of migrant exploitation that came before the Employment Relations Authority, which is also part of MBIE:
In-house work
Authority Member Davinnia Tan’s determination notes:
[8] Gaoqing Tian was employed by Hutt Food Limited and Well Sushi Limited … from November 2018 to October 2022; during his employment he was on work visas sponsored by Hutt Food Limited and Well Sushi Limited.
…
[12] Throughout his employment with Hutt Food Limited and Well Sushi Limited, Mr Tian was not consistently paid or given his minimum entitlements under the Minimum Wage Act 1983, the Holidays Act 2003, or the Employment Relations Act 2000.
…
[16] The respondents will make a lump sum payment of $53,940.03 to the Applicant within 10 working days following this consent determination as follows:
a. $18,124.37 in minimum wage arrears;
b. $35,591.41 in annual holiday arrears;
c. $224.25 in regards to a premium.
It appears that Mr Tian was based at one food outlet, and if the app had been available to him during his time at Hutt Food it would have been a relatively simple exercise to recall the GPS tracking data that would indicate how long he was at the site each day.
Field service work
The next example is slightly more complex – it involved a cleaning company whose employees spent almost all of their time outside the office, where cleaning supplies were kept. One employee in particular was totally ripped off as Authority Member Robin Arthur’s 31 page determination notes:
[11] A good part of the Authority investigation meeting was spent examining how the company’s records of the work assigned on each working day to each of the Applicants. This examination focussed on what work the Applicants actually did and how long they spent doing it, including by travelling to, from and between jobs at customers’ houses or premises. It identified a fundamental flaw in how NZCM calculated what the Applicants should be paid for their work. Those calculations did not properly allow for time spent over the whole working day. The working day typically started at the NZCM office, loading cleaning materials and equipment into vehicles and travelling to the first job. It continued by travelling to jobs at different houses, and ended when materials, equipment or staff were returned to the company office. NZCM failed to include the time spent travelling to, from and between jobs as part of the hours worked.
…
[129] Having satisfied those criteria Ms Kohli is a person involved in breach of employment standards under s 142W of the Act.
…
B. NZCM must pay the following sums as wage arrears due under s 131 of the Employment Relations Act 2000 (the Act): (i) $70,908.02 (gross) to Palav Brahmbhatt for wages, annual leave and public holidays.
Three other former employers were awarded lesser amounts. In 2021 Stuff reported that the owners were ducking and weaving. Four years on, NZCM appears on the Companies Office database as a company soon to be removed from the register, and Kohli changed her name to evade enforcement. However, Kohli’s husband Rahul Bandari’s four companies still appear to be trading.
The 2021 Stuff article by Steve Kilgallon mentioned that Brahmbhatt was represented by Auckland barrister David Fleming, who last week expressed frustration that the process for enforcing awards was cumbersome. For example, if a barrister wants to get an enforcement order from the District Court they have to be instructed by a solicitor. Advocate Nathan Santesso who also worked on the case confirmed that Brahmbhatt had not received any payments from Kohli.
The recent criminalisation of wage theft could go some way towards mitigating that situation, and we note that in 2024 Judge Smith (Employment Court) appears to have come close to locking up the owner of a trucking company that had not paid wage arrears as ordered by the Court despite having the means to do so.
VERI-Mi is currently in the beta testing phase. We understand that it will be free to download and use.
In a future article we’ll describe some of the functionality of VERI-Mi and hopefully give an estimate of when it will be ready to use. In the meantime, more information can be found at verimi.org.nz.
The picture shows a warehouse in Melbourne’s west where Kiwi tradie Sam Keast (inset) worked for 2.5 months until his death in November 2023, as reported by the Herald. Legal action against his Whanganui-based employer has since been brought on both sides of the Tasman.
Tristam Price
Editor
"De-mystifying employment law since 2019"
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