Immigrant exploitation prosecutions continue

Davinder Singh, 30, who has lived in New Zealand for around 13 years, we recently convicted in the Nelson District Court on 25 charges of exploiting 12 Indian workers he employed. He was also convicted of 13 charges of aiding and abetting employees to breach conditions of their temporary visas, a charge of providing false or misleading information to an immigration officer and seven charges of obtaining by deception.

He encouraged employees on student visas to work more than their visas allowed, then underpaid them. Others he employed on work visas were only ever paid for 40 hours, despite some working up to 60 hours a week.

One employee was forced to work seven days a week without overtime, while another living in Singh’s home was made to cook and clean for him and his family.  Another employee was owed almost $65,000 in outstanding pay.

Singh’s company, Kishan Singh & Son’s Ltd, owned Pizza Hut franchises in Gore, Richmond, Blenheim and Nelson, which were on-sold in 2016.  Singh also operated two food stores trading as Ekam Food Marts in Nelson and Blenheim.

Singh was also sentenced to 200 hours of community service and ordered to pay $150,000 in victim reparation.

Workplace surveillance and the Privacy Act

Last month the Privacy Commissioner considered a complaint from a postie about audio recordings made by the video cameras on NZ Post’s “Paxster” (the Postman Pat electric vehicles).  He had discovered that phone calls he made during his mail run and his conversations with members of the public were being recorded. He had not been aware the cameras had an audio recording capacity.

While Principle 1 provides that personal information must only be collected if the collection is for a lawful purpose connected with what the agency does, NZ Post’s view was that the delivery agents were not acting in a personal capacity as they were employees completing their delivery work.

The Commissioner explained that ‘personal information’ has a wide definition under the Privacy Act and includes any information that is about an identifiable individual.  Although delivery agents are at work, the cameras on their vehicles were still recording personal information about them, for example, personal conversations with people they met during the delivery round. Employees are entitled to a reasonable level of privacy even during working hours.

New Zealand Post’s argument that the audio recordings were necessary for the purposes of investigating incidents or accidents that occurred during the delivery round was rejected.  The Commissioner didn’t think continuous audio recordings were necessary for safety purposes. Thousands of hours of footage were being collected about the delivery agents and members of the public, and yet there were relatively few accidents. It was not clear that the audio recordings would prevent accidents from happening or provide information that would lead to changes in safety policies.

NZ Post breached Principle 3, which says that when collecting information, agencies must make people aware of the fact that information is being collected, the purpose for the collection and the intended recipients of the information.

NZ Post also breached Principle 4, which says that personal information should not be collected by an agency by unlawful means or by means that are unfair or are unreasonably intrusive.

The Commissioner thought the need to investigate possible incidents and accidents needed to be balanced with the Delivery Agent’s right to maintain a reasonable degree of privacy and dignity, and that of the people with whom they interact as they make their round. The delivery agents spend a considerable amount of time in their vehicles and it would be unsettling for them, and unreasonable intrusive, to record audio during the entire time they were driving.

The Commissioner found that there was an interference with the Delivery Agent’s privacy as the breaches of the Act had caused him emotional harm.

Following mediation by the Commissioner the parties reached a settlement. NZ Post changed its policy and no longer uses cameras with an audio function on its Paxster vehicles.

You might want to review your surveillance policy to ensure that –

• personal information is only collected for a lawful purpose connected with what your business does
• people are aware that information is being collected, for what purpose and who receives the information.
• personal information is collected by lawful and fair means that are not unreasonably intrusive.

If you would like to review your privacy policy, here’s a simple reminder of the 12 privacy principles* – Agencies, that is businesses, government organisations and other organisations must…

1. Only collect information about a person that they really need
2. Get it from that person wherever possible
3. Tell that person what personal information they are collecting and why they are collecting it
4. Be fair about how they get it
5. Keep it secure
6. Let that person see it if they want to
7. Fix it if that person thinks it’s wrong
8. Take care that it’s accurate before using it
9. Dispose of it as soon as possible when they don’t need it any more
10. Use it for the purpose they got it
11. Only disclose it if they have a good reason
12. If an agency uses a unique identifier (such as a client number) to identify a person, it cannot use the same identifier that another agency uses.

*Adapted from the Privacy Commissioner’s website at https://www.privacy.org.nz/news-and-publications/brochures-posters/our-new-general-privacy-brochure/

This article is brought to you by the Advicewise People, who provide the Window & Glass Association NZ free employment helpline 0800 692 384.  If you have any questions or would like to discuss the article above, please call Philip or Anthony on the helpline.