Privacy and the Employment Relations Act
Senior Associate Gerard Elwell shared his thoughts on the privacy and employment issues online broking firm Tiger Brokers has faced in a recent article published by the National Business review.
Follow this link to read the full article or continue reading below.
Tiger Brokers admits ‘incident’ with NZ staffer - Online broking firm’s ‘global office’ responds to staff complaints of sacking threat.
The ‘global office’ of online broking firm Tiger Brokers has acknowledged "flaws in our communication and processes" after New Zealand staff said they had been threatened with the sack if they did not sign a privacy waiver.
In a statement issued through its PR agency, the business said it was committed to following New Zealand law, including the Privacy Act.
The business had wanted information on staff pay "to build a more accurate financial model," it said, and staff had been asked to sign a waiver "on a voluntary basis without any repercussion".
"However, there has been an incident in New Zealand involving an employee that the global leadership was not previously aware of and there is currently an investigation under way," it said.
"The waiver in July 2023, the details of which were neither disclosed to nor endorsed by global headquarters, has also been revoked. We are in the process of working to address and resolve the matter."
The statement was not attributed to any person or corporate entity.
NBR reported on Wednesday that staff had been told they would be fired if they did not sign a Privacy Act waiver giving Tiger Brokers controlling entity in China access to their pay information.
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Staff at online sharebroking firm Tiger Brokers say they have been threatened with the sack if they refuse to waive their rights under the Privacy Act.
A letter to staff in July asked them to agree disclosure of their pay information to parent company Beijing Xiangshan Yixin Technology Co Ltd, which controls the Nasdaq-listed holding company UP Fintech.
The disclosure, requiring a waiver of rights under the Privacy Act, would allow the Chinese company to “be involved in, or to manage, remuneration reviews for [Tiger Brokers] staff in future,” it said.
“BXYT may use your remuneration information to reach a conclusion on what it considers to be an appropriate adjustment to that remuneration.”
Staff were also told once their information had been passed to China it was not protected by privacy laws like those in New Zealand.
Although the letter stated that declining consent would have no adverse consequences, staff members told NBR employees were told they would be fired if they did not comply.
“I have rights under the law and I want to protect my data,” one person said.
“My concern is what’s going to happen next if I waive my rights.”
Another said the sacking threat came from China.
“It was Beijing – [group CEO] Wu Tianhua and [head of human resources] Wang Jian – that wanted us sacked if we do not consent to disclosing.”
It is understood about 40 people work at Tiger Brokers in New Zealand.
Calls to Tiger’s New Zealand chief executive Vincent Cheung and subsidiary Tiger Fintech CEO Greg Boland were not immediately returned.
New Zealand law
In a statement issued by a PR firm, the company said: “Tiger Brokers takes this matter very seriously and we are working to resolve this matter. Tiger Brokers is committed to following New Zealand law.”
Employment lawyer Gerard Elwell of Young Hunter said the ownership structure of Tiger Brokers, in which the company is controlled indirectly through a variable interest entity in China rather than being a direct subsidiary, could require the Privacy Act waiver for information to be transferred, since the parent was effectively a third party.
However, threatening staff to waive a legal right would be considered unreasonable and in breach of the Employment Relations Act.
“The salaries, the terms and conditions, should be governed by New Zealand law and policies rather than what the company in mainland China thinks should be the case,” he said.
AML penalty
Tiger Brokers specialises in offering sharebroking services for US and Hong Kong stocks to mainland Chinese customers through a mobile phone app.
In June the company was ordered to pay $900,000 in penalties for multiple breaches of anti-money laundering regulations after a lawsuit filed by the Financial Markets Authority.
The penalty related to transactions of $60 million through New Zealand’s financial system without proper checks or controls.
This year NZX declined Tiger’s application to be a trading and clearing participant in the New Zealand sharemarket, saying it “didn’t satisfy the standards and requirements necessary for that accreditation type.”
