Most employers are very supportive of their migrant workers. We are on the record strongly supporting the need for employers to have access to migrant works to fill skills gaps. This can be done safely. Businesses and migrant workers are both suffering as a result of current gaps.
Helping employers to comply
Many employers also simply struggle to balance the demands of employment law, immigration rules, and the needs of their business. It’s so easy to make a misstep. If you are an employer concerned about employment requirements we are available also to assist: contact us. In particular, we can help with the new accreditation process.
A rotten few: bringing a bad name to other employers
However, a minority of employers are unscrupulous and give a bad name to others. In recent years Pacific Legal has supported a number of victims of exploitation. We have successfully obtained visas as an exception to instructions. Director Richard Small is a member of the Auckland District Law Society Immigration Committee has contributed to an ongoing review in this area.
A new visa for genuine victims
In July 2021 a new visa, called the Migrant Exploitation Protection Visa (MEPV), was created to help protect migrant workers from employers whose practices or behaviours threaten their well-being – financially, mentally, physically, or socially.
Employers who are found to have exploited migrants
- may be declined accreditation under the new accreditation scheme
- blacklisted from employing further migrants,
- Face penalties for breach of employment laws and in extreme cases
- Face criminal charges
The new visa is a 6-month open work visa for migrant workers and for those (partners and dependents) who already hold a visa based on their relationship to the person for whom the visa is granted. The visa is designed to allow migrant workers to safely leave the employment without fear of losing lawful NZ status and to give them time to find alternative work. Applicants are not required to take provide medicals or police certificates with the application, nor is there a fee.
Examples of breaches
Migrant workers are entitled to the same basic employment conditions as all other workers such as written employment agreements, holidays, statutory holidays
Immigration New Zealand’s website lists extreme examples of bullying underpaying and restrictions on workers but this may also include situations where an employer:
- requires excessive hours of work and not providing breaks, not paying for the work and/or underpaying for the work;
- ignores holiday pay and record-keeping obligations
- requires payment for the job: when immigration volumes were higher this was endemic: we had clients reporting $15,000 being charged for IT jobs before coming to us, for example, but it was very hard to get them to report this when there was no clear visa they could go on to and where Immigration New Zealand might treat them as a “co-offender” with the employer. The exempt student’s advice industry was infamous for engaging in job selling. Pacific Legal continues to advocate that this industry needs to come under the Immigration Advisors Licensing Act as do all other immigration advisors.
- has the worker perform counter to their visa conditions. This has been a real issue during Covid when employers have come under pressure have responded by rearranging staff roles. Those on employer-supported work visas are in a comparatively weak bargaining position in that situation. The worst instances we have heard of have been employers unlawfully forcing non-essential workers to work during level 4.
- asks the worker to mislead immigration New Zealand about their employment: in our experience immigration New Zealand (compliance/fraud/investigation) has taken a fairly hard-nosed approach towards the visa applicant: it is yet to be seen whether a more balanced approach will result from the new visa.
If you’re a worker in the above situation you can contact Employment New Zealand through their online portal https://reportmigrantexploitation.employment.govt.nz/ or you can contact our office for assistance with visas. You may need advice from an employment lawyer: we would be happy to make a referral or you can find a list of such lawyers through the Auckland District Law Society.
There is a difference between some of our employer clients who inadvertently breached rules due to lack of knowledge and those who blatantly take advantage of migrants. For employers who are genuinely struggling with compliance, we are always able to assist: contact us through our employer enquiry form. We offer a free initial zoom or skype consultation with employers and a compliance
12 July 2021