In the last couple of years – and especially since the Labour Government took office last year – both Immigration New Zealand and the MBIE Labour Inspectorate have upscaled their efforts to find and punish employers who misuse the power imbalance between them and their foreign workers. Usually the migrants are on Work Visas.
My colleague Peter Moses and I recently prepared and delivered a seminar to the Law Society Employment Law Conference, in which Peter spoke about the ways in which bosses could be prosecuted for various wrongdoing, from employing overstayers to firing staff in an improper way.
Types of Abuse
The worker usually needs the job to keep their visa, and some of them hope to use their employment to get Residence. This means that they will put up with things that local people would not stand for, including:
- Working well over the hours they signed up for – 60 or 90 hours a week instead of the 40 hours in their employment agreement;
- Not being paid the wage they agreed to at the outset;
- Being required to work weekends and holidays, for fear that they’ll lose the job if they refuse;
- Getting their agreed wage, but having to pay a large sum back to the employer under the table – this is called “paying a premium”;
- Providing personal services to the employer without pay, such as cleaning their house after hours.
Some of these stories make it to the media, like the conduct of subcontractors to Chorus; most do not. In some of the worst cases, staff must give up their passport and their Eftpos card to the employer, and are effectively kept prisoner by being forced to live on the work site. They submit to this because the employer threatens to go to Immigration and get them deported if they don’t agree.
Lack of Protection
INZ has in the past been criticised for failing to provide real safety for workers who come forward to report the abuse. As the Government has more recently promised to battle workplace exploitation, you might expect that they would incentivise people to come forward – especially when officials know full well that migrants feel frightened to do this because they believe that it will expose them to being deported. This becomes a real risk if they had to leave the job recorded on their visa, which means that they have breached their visa conditions.
Immigration Instructions do say that someone who reports exploitation can be considered for a replacement temporary visa. Unfortunately, the rules are vague about what visa that person could get – will it be a Work Visa allowing them to find a new job, or a Visitor’s Visa which does not permit them to work? INZ’s own fact page about this topic is imprecise. This is understandable because the situations that come up will be many and varied, but it still gives little real comfort.
Furthermore, the migrant needs to tie their claim to quite specific acts or omissions for it to be treated as “exploitation” under the law. These include:
- failure to pay holiday wages required under the Holidays Act;
- paying below the minimum wage, which is now $17.25 per hour;
- paying a premium (see above);
- actions to prevent the employee from leaving the job or travelling out of New Zealand; or
- obstructing the employee from finding out about his or her legal rights in NZ.
A non-specific allegation of being badly treated by an employer will not suffice, even if it is genuinely felt by the victim.
In my view, if Immigration and the Labour Inspectorate are committed to stamping out abuse of foreign employees, some iron-cast guarantees of protection, and of outcomes, need to be set out. For example, INZ’s statement reads:
We’ll let you apply for another visa to stay in New Zealand, even if you have been working on the wrong visa.
Allowing someone to apply does not mean that a visa will actually be given. Often employees are complicit in the exploitation, out of fear of losing the status which they acquired legitimately. They face a real risk of being declined their replacement visa and then facing deportation for breach of their last visa. Even the promise of a new Work Visa, say for 6 months, to allow them to search for another job, would be a significant improvement.
If you, or someone you know, believes that they are being treated badly by an employer in the ways described above, then it may be safest to get professional help to avoid the possible pitfalls to be faced in setting the situation right.
A Warning to Employers
Having said all this, it is apparent that the Ministry of Business, Innovation & Employment has been throwing more resources at exposing employers behaving badly. The sharp end of this is prosecutions, which can attract fines of tens of thousands of dollars and (in the worst cases) imprisonment for years at a time. These convictions have started coming through the Courts more regularly in recent years.
More likely, though, is that a company which keeps poor records, employs staff on the wrong visa, or has paid them in breach of their employment agreement or the legislation, could find it very difficult to hire migrant staff in the future. If they have been penalised by the Employment Relations Authority or Employment Court, then they will be labelled a “non-compliant employer”. They end up on a list of employers facing stand-down periods from 6 to 24 months, during which they cannot support anyone for a Work Visa. Businesses on the list range from construction companies to medical centres.
We are called upon to advise employers who have legitimate concerns that they may have fallen foul of the rules. It is possible to rectify matters proactively, but it must be handled carefully.