Inspectors knew of child labour concerns but excluded children from Gloriavale inquiry
The Labour Inspectorate made “numerous” legal errors when investigating serious allegations about working conditions at Gloriavale, including by explicitly excluding children from one of its inquiries, the Employment Court has found.
Nine former members of the Gloriavale Community successfully challenged the lawfulness of decisions made by the inspectorate in 2017 and 2021 not to fully investigate or take enforcement action over alleged employment law breaches.
Those allegations included child labour, forced labour and excessive working hours.
In a judgment released on Wednesday, the Employment Court upheld the former members’ application for judicial review.
The court found the inspectorate misunderstood its own powers, failed to properly consider the position of children, acted unreasonably in its treatment of evidence and did not adequately inform itself before closing its inquiries.
The case stretches back to 2017, when Charities Services referred concerns about long hours, health and safety and child labour in Gloriavale’s commercial operations to the Labour Inspectorate.
The inspectorate conducted what was described as a “desktop” inquiry and concluded people working at Gloriavale were likely partners or volunteers rather than employees.
It believed that meant it did not have jurisdiction to investigate further and closed the file.
Following further media reports in 2020, labour inspectors visited Gloriavale in late 2020 and early 2021.
Before the 2021 visit, the inspectorate decided to explicitly exclude children from its investigation. The court heard this was because of resource constraints and anticipated difficulties obtaining parental consent.
Inspectors interviewed 39 current members and 13 former members.
Relying on signed partnership agreements and declarations of commitment, the resulting report again concluded Gloriavale members could not at that time be considered employees. No further action was taken.
But the Employment Court found the inspectorate had misunderstood the legal threshold for using its investigative powers.
Inspectors did not first have to establish that someone was an employee. Their powers could be activated when there was “reasonable cause to believe” an employment relationship existed, the court found.
The court also found failing to investigate children in both 2017 and 2021 was a material error of law.
New Zealand employment law defines an employee as a person of any age, and Charities Services had specifically raised concerns about children working, including 14- and 15-year-olds allegedly working in commercial dairies and butchering.
The decision to exclude children because of resources or consent difficulties was found to be irrational.
The court was also critical of inspectors accepting Gloriavale’s signed “partnership agreements” at face value while failing to properly consider other material they held.
That included Gloriavale’s foundational document, What We Believe, which the court found contained indicators of control and duress, including leadership holding absolute power over workers, restrictions on reporting concerns to outside agencies and threatened eternal damnation for disobedience.
Ignoring that material was “inexplicable, unreasonable and irrational”, the court found.
The investigation was also found to be unfair because former members who were interviewed were not given an opportunity to respond to a counter-narrative provided by Gloriavale’s leadership before the inquiry was closed.
The Crown had argued the inspectorate’s decisions should not be subject to court review, comparing its discretion over investigations and limited resources with prosecutorial or police discretion.
The court rejected that position.
Given the fundamental human rights and international obligations engaged by the allegations, it found the inspectorate’s conduct required “anxious scrutiny” rather than judicial restraint.
The judicial review succeeded, but the case is not over.
The court has deferred deciding appropriate remedies, including claims for damages, until a further hearing.
It also indicated that, given its adverse findings and the vulnerability of those affected, a copy of the judgment could appropriately be referred to the Attorney-General, Workplace Relations and Safety Minister and Ministry of Business, Innovation and Employment chief executive.
Costs were reserved.