Anne Marie May, Journalist
Burger King has been banned from employing migrant workers for a year after a former worker's extra hours took their pay below the minimum wage.
A woman who worked for Burger King told the ERA she was unable to take meal breaks because of heavy workload. Photo: RNZ / Calvin Samuel
In July the Employment Relations Authority ordered Antares Group Limited, which operates 82 Burger King restaurants to pay its former employee, Drew Desai $3500 compensation for the breach.
It found that on three occasions Antares Group had breached the Minimum Wage Act regarding the amount it paid Ms Desai.
Her contract stated that because of the nature of the fast-food industry, Ms Desai might be required to work more hours than she was rostered to meet the requirements of her positions as a trainee manager.
"No additional payment will be made for those extra hours."
Ms Desai told the ERA she was unable to take meal breaks because of the heavy workload and extra hours she worked took her pay below the minimum wage on several occasions.
"In the statements of problem and reply filed in the Authority, Ms Desai claimed that in the fortnights ending 25 May 2017, 11 June 2017 and 9 July 2017 she worked hours over and above her contracted hours of 90 per fortnight," the ERA decision read.
"She says because her salary was so close to the minimum wage all three fortnights brought her below the minimum wage for the hours she worked.
"The shortfall for the accepted three fortnights amounted to $194.57 gross."
New Zealand's immigration rules mean employers who have been ordered to pay a penalty are viewed as not complying with employment law and face a stand-down from the ability to support a visa application.
For Antares Group that means they will not be able to be involved in employees' visa applications until next July.
Gerard Hehir the National Secretary of the Unite union, which supported Drew Desai in the Employment Relations Authority, said he was pleased with that outcome.
Burger King was a large high-profile corporation and its involvement demonstrated that the issue of workers not being properly remunerated went right across most sectors and company sizes, he said.
"Employers who steal from their employees need to be sent a very clear message. Banning them from employing vulnerable migrant workers is a good start," Mr Hehir said.
"If an employer is not able to guarantee the most basic minimum conditions allowed by law, they should not be able to hire vulnerable workers."
The union was, however, concerned that some existing Burger King workers would not be able to renew their visas in the next 12 months because of the ban.
Unite would be working closely with Immigration New Zealand and other employers they had relationships with to find alternative employment, Mr Hehir said.
"Migrant workers are the most vulnerable to exploitation because their visa conditions often tie them to one employer. They fear speaking out because if they lose their job, they lose their ability to work in New Zealand," he said.
"We understand the regulations that govern these bans are being reviewed this year and we will be asking the government to allow migrant workers caught by such bans to have open visas granted to help them get new employment quickly.
"These types of workers should not suffer exploitation and then be punished for it along with the employer who exploited them."
The Employment Authority found Ms Desai resigned voluntarily from her position with Burger King and the circumstances did not amount to an unjustified dismissal.
Comment has been sought from Burger King.