By Steve Kilgallon of 
Green MP Darleen Tana Photo: Green Party NZ
Suspended Green MP Darleen Tana told a migrant worker he was able to work in her husband's bike shop on a seasonal work visa - despite that visa clearly stating he could only work in horticulture and viticulture jobs.
The worker also claims Tana advised him to keep working in the shop during lockdown as it was essential work.
The worker is the second of two who earlier this year lodged Employment Relations Authority (ERA) claims against E-Cycles NZ, a company owned by Tana's husband Christian Hoff-Nielsen.
His claim alleges missing wages, failure to pay public holiday entitlements and failure to pay agreed commissions on bike sales. The company has denied the claim and it will go to a hearing later this year.
Tana was stood down by the Green Party in March after a Stuff investigation into allegations made by another migrant employee, Santiago Latour Palma, that he was exploited, claiming he was owed $25,000 in wages by the business and had worked while on a tourist visa. She remains under investigation by lawyer Rachel Burt, who was tasked by the Greens to establish what Tana knew about those and other allegations about the business.
Tana resigned as a director and shareholder of E-Cycles NZ, which trades as Bikes and Beyond, in 2019 but multiple workers have since told Stuff she remained involved in the business.
The worker who was told to work on a seasonal visa spoke to Stuff on condition of anonymity. He said Tana was deeply involved in the business and has WhatsApp chat logs with both her and Hoff-Nielsen.
The messages with Tana involve her instructing the worker on his working hours and times, repairs and deliveries, and discussing wages and contracts.
Hoff-Nielsen's messages show him repeatedly deferring to Tana over financial affairs. In one March 2022 message, Hoff-Nielsen told the worker: "If u want help with wages as we have discussed many many times its Darleen." A day later, he sent a message instructing staff who had caught Covid-19 to send their Ministry of Health confirmation email onto Tana.
In one exchange in May 2020, during the first national lockdown, the worker messaged Tana: "I was wondering about the subsidy and wages as I understood that we were gonna get our normal wage from this week? I have worked 81.5 hours without a day off in the last two weeks. If I knew I was gonna work for the subsidy I should be doing 29.5hs a week which is about 60hrs."
Tana replied: "Will explain when I come in today."
Later, the worker messaged her to thank her for the conversation, and she replied: "[Worker's name] i am sooo pleased u told me how u feeling. U v special part of our team. Mean that:)."
During that 2020 lockdown, only essential businesses were meant to remain operational.
The messages also reveal Tana discussing the worker's pay. In June 2020, the worker messaged asking her to confirm he had guaranteed hours in his casual work contract. Tana replied saying : "Yes I can:)."
In July 2020 and February 2021, the worker messaged Tana to say his wages were late and pleaded for them to be paid. On one of those occasions, Tana apologised for the late payment.
The migrant worker first worked for E-Cycles in March 2020 on a working holiday visa. He alleged he worked an unpaid one-day trial under Tana's supervision before he was hired to start the following day.
The worker quit in January 2021 to work at another bike shop.
He said that in September 2021, Hoff-Nielsen asked him to return in a better-paid managerial role with a 2 percent commission on any bike he sold and told him there would be no more issues with late salary payments.
The job change meant his sponsored work visa lapsed. He alleged Hoff-Nielsen said he would be paid in cash until he secured a new visa. While he waited for another sponsored visa, the worker secured a seasonal work visa, which limited him to working in horticulture and viticulture.
However when he sent a copy of the visa to Tana, she replied saying he was "eligible". When he expressed doubt that he could work on that visa, Hoff-Nielsen reassured him by saying they had employed seasonal workers before.
Immigration New Zealand confirmed the Supplementary Seasonal Employment (SSE) visa was only for workers to plant, maintain, harvest or pack crops, and only for employers with an SSE approval. The agency confirmed E-Cycles NZ was not on that list.
In a statement, Dominic Forde, MBIE operations director Central Southern region, said: "Employees who hold an SSE visa and carry out work other than work in viticulture or horticulture would be breaching the conditions of their visa and may be liable for deportation.
"An employer that employs a person to do work other than work in viticulture and horticulture that is inconsistent with the conditions of that person's visa may be committing an infringement offence under the Immigration Act. It is also an offence to allow a person to carry out work knowing that the person is not entitled to do that work."
In November 2021, the worker and Tana exchanged messages about his pay rate, apparently to prepare his contract, and his repeated issues about access to Xero software for logging his hours as well as explaining holiday pay. At one stage, she told him she had advanced him $1500 while the business sorted out accounting issues affecting his pay.
In March 2022, the worker wrote to Tana: "I asked Chris thinking you are not managing any more but he asked me to talk to you about applying for the subsidy. Would you help with that please?" She replied: "I applying for subsidies yes for u and then others."
However, by 19 March, the worker found his email to Tana's E-Cycles email address had bounced. When he asked her why, she said: "Yes because I don't work there. Really." Later that day, they sent messages accusing the other of shouting and being aggressive, and Tana ended the conversation with: "I stepped out and will continue my day helping sickbfamilies (sic)."
The worker told Stuff he worked for the business on the seasonal visa, but continued to be erratically paid in cash until February 2022 when his new sponsored visa arrived and he began to be paid regularly.
He quit again on 1 July, 2022 and worked out notice until 1 August, allegedly without pay, until he had a lawyer write to Hoff-Nielsen, who accused the worker of wage theft but paid $1500 into his account.
The worker said he was never paid time and a half or given days in lieu for working public holidays and his wages were often late. He also said he was unable to track his pay properly because he wasn't given access to wage and time records.
The Greens suspended Tana in March, saying she had told the party on 1 February and 9 February that ERA complaints had been lodged which contained allegations against her personally.
She was stood down from her portfolio as Small Business spokesperson but the Greens did not make any comment because they did not want to influence the mediation process. They said it was not until Stuff's enquiries on 14 March that they learned Tana "may have had some prior knowledge of the allegations" and they were appointing Burt to "understand fully what Ms Tana knew, and when".
The Greens did not respond to a question about when Burt's report would be finished. In a statement, the party's co-leader Marama Davidson said: "This material is being considered as part of the independent investigation into Darleen Tana. The party will be making no further comment on this while the investigation remains ongoing."
Hoff-Nielsen had not responded to requests for comment before deadline but previously told Stuff the worker's ERA claim was without merit.
Tana declined to comment, saying: "These matters are currently under consideration in the investigation and form part of ERA proceedings also. It would be completely inappropriate for me to comment at this time."
- The story was originally published by Stuff.
