Суд признал ошибку инспекции труда в игнорировании детского труда в общине Глориавейл

“The Labour Inspector was well aware that children were working within Gloriavale and were a significant category of vulnerable individuals who were effectively removed from the scope of the investigation without good reason.” The court earlier found the three men and six women were Gloriavale employees, rather than volunteers, in two landmark rulings in 2022 and 2023. At an Employment Court hearing in March, the leavers challenged the lawfulness of the inspectorate’s decisions in 2017 and 2021 not to fully investigate or take enforcement action after allegations of employment law breaches, including child labour, forced labour and excessive working hours at Gloriavale. They worked at the community from a young age, some in Gloriavale’s commercial enterprises such as moss and rendering factories and honey and dairy businesses, and others in commercial-sized kitchens and laundries. In 2017, Charities Services referred concerns about child labour, long hours and health and safety at Gloriavale’s businesses to the Labour Inspectorate. The inspectorate conducted a “desktop inquiry”, with the report noting that if Gloriavale members were considered employees “there would inevitably be many serious breaches of employment law”. The report instead concluded that “on balance” people working at Gloriavale were likely “partners” or “volunteers” rather than employees; therefore it lacked jurisdiction to investigate further and closed the file. Following media reports three years later of poor working conditions and long work hours, two labour inspectors and four WorkSafe inspectors visited Gloriavale in September 2020. Before a second visit in February 2021, the inspectorate decided to exclude children from the investigation. Crown lawyers told the Employment Court the decision not to interview children was because they would need parental consent, the process would likely be intimidating or confusing, and it was a better use of resources to confine the investigation to partners in Gloriavale’s businesses and women working on the domestic teams. The inspectors interviewed 39 current and 13 former members. The 2021 report concluded that “members of the Gloriavale community cannot currently be considered to be employees and that the Labour Inspectorate therefore has no jurisdiction to investigate further”. The Employment Court found the Labour Inspectorate misunderstood its jurisdiction because inspectors wrongly believed they had to be satisfied that workers were “employees” before taking steps to investigate. The court noted that an inspector’s investigative powers were activated when they had “reasonable cause to believe” an employment relationship existed, not when it was proven on the balance of probabilities. A person’s employment status was a matter for the Employment Relations Authority or the court, Judge Inglis said. “It would put the cart before the horse to conclude that there was no employment relationship and so no power to investigate employment status,” she said. The court also found that the Labour Inspectorate’s failure to investigate the position of Gloriavale children in 2017 and 2021 was an error of law, with legislation defining an “employee” as a person of any age. Given the inspectorate was explicitly warned by Charities Services about work that children were doing, including that 14 and 15-year-olds were working in commercial dairies and butchering, the position of children was a mandatory consideration, the court said. “I have no difficulty concluding that the position of children known to be working in Gloriavale was such a plainly relevant factor that the Labour Inspector was required to consider it,” Judge Inglis said. “Allegations of child labour had been made with profound implications for those impacted. The stakes were very high and called for a protective, rather than hands-off approach by the statutory officer charged with an investigative and enforcement function. “Ignoring the position of child workers, without inquiry, was not a reasonably available option given the context within which the Labour Inspector was exercising their powers.” The inspectorate also knew that the number of children at Gloriavale significantly outweighed the number of adults and that the community was running multiple businesses and operations relying entirely on its own resources. Excluding children from the investigation to save resources or avoid consent issues was irrational, the judgment said. The 2021 report included advice from Crown Law that some community members were in a “grey area” because they had not signed Gloriavale’s partnership agreement. The court found it was unreasonable for the labour inspectors to accept signed partnership agreements at face value while ignoring other crucial documents they possessed, such as Gloriavale’s foundational document What We Believe. “The documentation, including What We Believe, was a large red flag as to the pervading features of the community, including the leadership’s approach to work; the controlled environment in which residents lived; and the way in which external agencies were to be engaged with,” Judge Inglis said. “Loud alarm bells ought to have been ringing from even a cursory reading of What We Believe, because the documentation makes it clear where the true power lay.” The document established that the community’s leadership held absolute power over workers, dictated that members could not report concerns to external agencies and threatened eternal damnation for disobedience. The court found that ignoring these clear indicators of duress and control was inexplicable, unreasonable and irrational. The investigative process was also flawed because inspectors failed to allow the interviewed leavers to comment on the counter-narrative provided by Gloriavale’s leadership, the court said. By closing the inquiry without taking that step, the labour inspectors failed in their duty to adequately inform themselves. Given the adverse findings and the vulnerability of those affected, the court suggested referring a copy of the judgment to the Attorney-General, Workplace Relations and Safety Minister and the Ministry of Business, Innovation and Employment chief executive. In addition to “Bill of Rights-esque” damages, the former members were seeking to quash the 2017 and 2021 reports, with a further hearing yet to be scheduled.