Migrant worker rights in NZ

Migrant worker rights in NZ, time to set the record straight…

Opinion Piece: Migrant employee exploitation has been making headlines lately, and there are undoubtedly some common themes. Aaron Martin of New Zealand Immigration Law, Employment lawyer Mark Donovan and Anu Kaloti of the Migrant Workers Association, detail the unique challenges their clients are facing, what they can do to protect themselves, and a simple solution the Government needs to address.

Migrant workers in New Zealand face several unique challenges. To find out more we spoke with Aaron Martin of NZIL, employment lawyer Mark Donovan, and Anu Kaloti, founding member of the Migrant Workers Association. All work in areas that help migrants with issues of employment, and all have successfully dealt with many cases of exploitation.

Most major issues that migrant workers face involve exploitation. This usually means the employer is denying the employee their basic rights and entitlements. All New Zealand workers, whether residents or migrants, are entitled to certain rights. Read the full list of rights (in a variety of languages) here:

Employers must include these basic rights and entitlements in their written contract with an employee. But the rights aren’t always put into practice. A migrant on a work visa who wants to live in New Zealand relies on their employer to comply with the rules. Often visas restrict migrants to one particular employer, so a migrant’s fate may be dependent on that sole employer doing the right thing.

Migrants are particularly vulnerable to exploitation because if a migrant employee is dismissed or their employer is identified as non-compliant, the migrant’s visa can be revoked. Kaloti often hears of employers threatening migrant workers with “if you don’t do XYZ we’ll get your visa cancelled or report you to Immigration”. She specifies that it is not uncommon for migrants to be verbally and even physically abused.

So, what are the common issues migrant workers face? And what can they do?

1.       Wages

Employers must pay migrants a wage specified by the salary band linked to their visa. This wage must be clearly stated on a written employment agreement that has been signed by both parties. Unfortunately, some employers are finding ways around this.

Kaloti explains that often the employer will deposit the correct pay into the employee’s account “so the paper trail is perfect”, only to later demand a portion of that pay be given back. Often this is justified by claiming the employee was in debt to previous loans or training costs. The paper trail is kept clean by asking for the payment in cash or as a bank transfer to a friend or colleague’s account that is then paid back to the employer.

Another common example is hiring migrants under a “two-for-one deal”. Kaloti and the Migrant Workers Association are currently working through such a case with a married couple. The wife is employed by an IT company, which has enabled her to get a work visa. But her employment is on the condition that her husband works for her employer’s other business, an orchard. The wife is receiving the correct salary specified by her visa conditions; the husband, however, doesn’t get paid at all.

If an employee raises these kinds of issues in a public arena, it usually just causes them more grief. “Getting a third party involved can be like putting a fox in a hen house,” Martin says. The Labour Inspectorate works directly with Immigration New Zealand. So, if you report your employer for wage exploitation and you’re in the process of applying for a visa, your case can be denied on the grounds of having a non-compliant employer. This is why, as Martin advises, employees in this situation “usually just shut up and carry on”.

2.       Leave and breaks

There are many reports of migrant staff working unpaid overtime or being denied leave or rest breaks. It is easy for an employer to specify the correct hours on a contract, then fail to monitor overtime and keep correct records. Sometimes this can be credited to an overly “relaxed” approach on the employer’s part, but often cases are of a less innocent nature.

Employees can work double the time recorded by an employer but be forced to sign false records in fear of losing their job. Then, if they raise a dispute, the evidence is against them. Employees being denied leave and break entitlements have similar problems providing proof.

If there’s no evidence, it’s can be hard to put together a case. But Mark Donovan offers some reassurance: “Immigration New Zealand and the Labour Inspectorate are alert to the risks around these issues with migrant employers. If the evidence of the employee is only their word and the employer cannot produce any evidence to contradict them, they’re still often likely to be believed as they are putting their life in New Zealand on the line.”

3.       Business sold or liquidated

Complications arise for an employee when a business their visa is tied to is sold or liquidated. Sometimes, depending on the conditions of the visa, an employee can apply for a variation. If not, the migrant must submit a completely new visa application.

If the employer has another business, they can offer the employee a new position or a transfer. Martin, having worked on at least four such cases, believes this is an easy fix. If you’re working under an Essential Skills visa, provided the role and the location don’t change, it is likely you will be able to simply apply for a variation. If the role is different or in a new location, Martin says: “Effectively the Work Visa holder has to find another job – but they’re still in a situation of being tied to that employer.”

If a business is getting liquidated, an employee can be out of work without any notice. In some cases, and legally in all cases where a business is sold, notice will be given as specified in the terms of the contract. Immigration New Zealand won’t enforce immediate deportation, but it is imperative employees contact them as soon as they know they’re facing unemployment. Immigration New Zealand can issue a Visitor Visa, which will give the employee up to nine months to find more work.

Unfortunately, many employers don’t want to hire a migrant on a Visitor Visa or an open visa that is due to expire. It can be hard to find an employer willing to work through the gamut of a work visa application, especially if it is only for a short-term role. While it is legal to look for work on a Visitor Visa, it is not legal to actively work. Both parties must be mindful that if a visa’s conditions are not honoured, there can be serious legal implications.

4.       Unfair dismissal

Unfair dismissal includes failing to follow a fair and reasonable process, giving less notice than is stated on a written agreement, or failing to provide an adequate reason for dismissal.

Where there is an unfair dismissal, legal action can be taken provided the employee raises a personal grievance with their employer within 90 days of being dismissed. Often disputes of this nature are resolved between the parties in a confidential meeting convened by the Ministry of Business, Innovation and Employment, known as a “mediation”.

Although often straightforward, unfair dismissal cases still can pose a difficult situation for migrant employees. While waiting for a mediation date, or for their case to be considered by the Employment Relations Authority, they will lose their main source of income and no longer meet the visa criteria that keeps them in the country. In a lot of cases, the employer will also unlawfully hold onto the final pay owed to the employee. If the employer has enforced an instant dismissal, or is withholding payout entitlements, the employee is left with no means to pay their rent and basic living costs.

5.       Dismissal within the 90-day trial period

Employment agreements can specify a trial period of 90 days or less that allows the employer to dismiss an employee within this period if they aren’t suited to the role. The trial period can be a fairly daunting time for any new worker. For migrants with work visas tied to their employer, it’s not just a job they might lose – it’s their future, and their family’s future, in New Zealand.

This is a hard issue to resolve, as the employer is within their legal rights to dismiss the employee within the period stated on the employment agreement, provided they meet the legal tests for imposing such a trial period. As Martin says: “If you’re dismissed within the 90-day trial period, there’s no way around it other than getting a new job with a new visa or obtaining a Visitor Visa.”

Donovan says that the condition attaching an employer to a work visa is creating many of these issues: “It allows the employer to say ‘Aha! You’re mine!’ and the employee is stuck, even if their wages aren’t getting paid.” Employees avoid seeking legal help or even joining a union from fear of losing their employer and the right to live and work in New Zealand.

Kaloti believes that to reduce exploitation, all work visas should be open. “Tying work visas to an employer is too harsh,” she says.

Martin disagrees that all work visas should be open, but strongly believes most exploitation could be remedied with a simple policy change. “When a migrant raises an issue or needs to leave their job due to exploitation, instead of issuing a Visitor Visa we should give them a 6-month open work visa so at least they can apply for other jobs on a better footing,” he says. A Visitor Visa gives a migrant more time in the country, but they can’t legally work. And the application process for a new work visa once they’ve found an employer can take some time. “The government says it’s trying to protect migrants from exploitation,” says Martin, “but they sadly don’t give a hell of a lot to assist people in those circumstances.”

It’s important that migrant employees know they have the same rights as a resident employee. If you’re a migrant employee and a dispute happens at work, the Citizens Advice Bureau is a good place to start for free advice. They will likely refer you to the Labour Inspectorate or, if it is a personal grievance, the Employment Relations Authority. Alternatively, an employment or immigration lawyer can provide individual support and legal advice.

Kaloti believes that more and more migrants are beginning to speak out about exploitation. Workers who are concerned about jeopardising their visa if they seek legal help could consider a union for support and advice. Kaloti recommends migrants join a union relative to their area of work or one of several unions specific to migrants such as the Migrant Workers Association of Aotearoa, Migrant Action Trust, or the Indian Workers Association.

For more information about resolving workplace issues, check out this Employment New Zealand resource page

If you need help with an Employment or work related issue, contact Mark Donovan here

If you need help with an immigration related issue, contact NZIL here

For a list of work unions available in New Zealand, have a look on the Trade Unions of New Zealand web page here.

ENDS

Further information:
Aaron Martin – Principal Immigration Lawyer at New Zealand Immigration Law
Aaron Martin is one of New Zealand's most highly regarded and experienced immigration law practitioners. He has extensive experience assisting individuals, SMEs, and large multi-national corporate clients.
He has experience in general legal practice with over 19 years of experience and a thorough working knowledge of relevant tax law and commercial issues facing investor category applicants and migrants wishing to establish businesses in New Zealand.

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