39.—(1) Where an employer has not paid to an employee an amount of pay to which the employee is entitled in accordance with this Act and, in respect of that amount no dispute has been referred to a rights commissioner under section 24 or allegation referred to an inspector under section 34 for investigation, and, in the opinion of the Minister, it is not reasonable in the circumstances to expect the employee, or the representative of the employee with the employee’s consent, to either refer a dispute or allegation, or to institute civil proceedings for the recovery of the amount, the Minister may request an inspector to advise the Minister whether or not, in the inspector’s opinion, civil proceedings should be instituted by the Minister on behalf and in the name of the employee.

(2) After considering the advice of an inspector requested under subsection (1), the Minister may, in his or her absolute discretion, institute or refrain from instituting civil proceeding in the name of the employee for the recovery of the amount.

(3) In proceedings under subsection (2) the employee shall not be liable for costs but the court before which the proceedings are brought may order that any costs that might otherwise have been awarded against the employee shall be paid by the Minister.

(4) The power given by subsection (2) shall not be in derogation of any right of an employee to institute civil proceedings on the employee’s own behalf.