“Migrant exploitation” is a common news headline that conjures up an image a greedy employer overworking and underpaying innocent migrant workers. While this does happen and there are those that deliberately and maliciously exploit migrant workers, there are also those employers who may accidentally and inadvertently breach basic entitlements under New Zealand’s immigration and employment laws.
Employment Law in New Zealand applies to all workers whether they are citizens, residents or temporary visa holders. All employers must offer the same employment and work conditions to their migrant workers that they offer to their New Zealand workers. Immigration New Zealand’s website has useful information for complying with Immigration and Employment law – https://www.immigration.govt.nz/employ-migrants/explore-your-options/your-responsibilities-obligations/law-immigration-employment.
It is up to employers to ensure that they meet the minimum of employment and immigration laws. The “minimum” sounds simple enough but there are a surprising number of New Zealand businesses that are caught by the Labour Inspectorate for breaches of New Zealand Employment Law. For example, recently the minimum wage was increased by $1.20 in April so the new minimum wage for New Zealand workers is $17.70 as of April 2019. Have Employers made sure that they have adjusted their pay for all of their employees accordingly? After the change to the minimum wage are they still compliant? Failure to comply with the increase of the minimum wage constitutes a breach of the law and non-compliant Employers may face charges accordingly.
In short, there are minimums for employment conditions that must be meet by all employers for all of their employees. These conditions include;
1. A written employment agreement; and
2. Minimum pay; and
3. Rest and mental break entitlements; and
4. Holidays (annual and public); and
5. Leave (sick, domestic violence, parental and bereavement leave); and
6. A safe workplace; and
7. Accurate pay and holiday records.
Should an Employer breach employment standards, they are placed on a non-compliant employers list maintained by the Labour Inspectorate. Immigration reviews this list when visa applications are made to ensure that the Employer is compliant and that the visa applicant is not in danger of being exploited. As well as being listed as a non-compliant employer, Employers face a set of “stand-down” periods and penalties depending on the extent of their breach. To view the list and for information on penalties visit the Governments employment website for more information – https://www.employment.govt.nz/resolving-problems/steps-to-resolve/labour-inspectorate/employers-who-have-breached-minimum-employment-standards
The following stand down periods apply to employers who have breached employment standards:
Migrant workers already who are employed by a non-compliant employer may continue working for that employer but they will not be able to apply for a further visa while in that employment. If you are in employment with a non-compliant employer that has recently been put on stand-down for breach of employment or immigration laws you should seek assistance in regards to what to do about your current employment and what to do should you wish to remain in New Zealand and need to consult your visa options.
If you an employer of migrant workers and are concerned on whether or not you are meeting your obligations under employment and immigration law, we recommend that you seek legal advice. Here at Queen City Law, Bradley So is our senior immigration lawyer and has been assisting both small and large businesses. The first step in ensuring compliance is to look at whether your business qualifies in becoming an accredited employer. If you would like to discuss your obligations or assess your eligibility to become an Accredited Employer, making it easier for you to hire migrant workers, click here to send and enquiry to our team.
If you are an employee and are concerned or currently being exploited we would recommend that you contact us to discuss what options you can make to change your employment and better your working conditions here in New Zealand. We have employment law specialists who can assist you in making the right choices to assess or improve your current situation.
We have taken care to ensure that the information given is accurate, however it is intended for general guidance only and should not be relied upon in individual cases. Professional advice should always be sought before any decision or action is taken as Immigration New Zealand’s instructions change on a regular basis.