Records, Evidence, Powers & Offences: Offences; examples of how criminal cases can be considered
The legislation that applies to this page is as follows:
* National Minimum Wage Act 1998, section 31
Examples of the types of cases where offences may be considered:
Example 1: A Chief Executive of a large business finds out about a forthcoming visit by a NMW Officer to review compliance with national minimum wage legislation. The Chief Executive considers this not to be a good use of company time and instructs his staff to cancel the appointment and not to respond to enquiries. A member of staff writes to the NMW Officer and politely cancels the appointment and advises that unfortunately they will not be able to assist with any investigation.
- The employer is obstructing the NMW Officer. The NMW Officer should inform the employer of their powers, explaining that failure to comply is a criminal offence and, if it persists with its obstruction, the case may be considered for a criminal investigation. In this case both the body corporate and the Chief Executive may be considered to be committing an offence under section 31(5) of the Act.
Example 2: A NMW Officer investigates a hairdressing salon and identifies that the employer had not paid for all the hours worked by workers which results in them being paid less than national minimum wage. The NMW Officer informs the employer that they must keep better time records and leaves them a blank timesheet. A short time later the NMW Officer finds that the employer is not completing the timesheet but keeping a note of the times worked in the appointments book.
- Although the employer is not keeping the records requested by the NMW Officer it does not mean that they are committing an offence. The employer is required to keep sufficient records (NMWM12020) and as long as the approach adopted by the employer provides sufficient information to determine the time worked and amounts paid then it is likely that the records are sufficient.
Example 3: A NMW Officer investigates a day nursery and learns that a number of staff are participating in Apprenticeship schemes with a local training provider. Records regarding the apprenticeship are not available at the visit so the NMW Officer requests for the details to be posted on. When the records arrive some of the completion dates shown on the certificates do not match the information provided by workers. On being contacted, the training provider confirms different qualification dates than the records suggest.
- The employer may have furnished false information to justify paying workers the apprenticeship rate after the apprenticeship had ended. If the NMW Officer considers that the workers are not being paid at least national minimum wage they might choose to consider whether an offence under section 31(4) of the Act applies.
Example 4: Two years after being found to be paying less than national minimum wage to workers, a publican was once again the subject of a complaint. The NMW Officer identified that the employer had failed to make any changes to his practices since the earlier visit and workers were still being paid less than national minimum wage for exactly the same reasons.
The NMW Officer may consider that the employer is wilfully neglecting to pay his workers at least national minimum wage which is an offence under section 31(1). Issues which the NMW Officer should consider are:
- the number of workers involved
- what information the NMW Officer of the previous investigation gave the employer about its legal obligations and offences.
Example 5: During an investigation at a day care nursery, the owner advised the NMW Officer that the previous years records were held by the accountant and permission was provided for the NMW Officer to access them. However, when approached, the accountant advised the NMW Officer that he was in dispute with the employer and that he was withholding access to the records until the dispute was resolved.
- The NMW Officer will need to consider whether both the accountant and the employer are intentionally delaying or obstructing the officer. The NMW Officer should inform both parties that may be considered to be committing an offence under section 31(5) of the Act and that their dispute should not be allowed to interfere in the exercise of the NMW Officer’s powers.