Of late, several examples of immigrant exploitation have worked their way through the Employment Relations Authority and the Employment Court. These have prompted numerous media reports, and it seems, the beginnings of some significant change.
Under the current immigration system, a migrant employee is often ‘tied’ to their employer, through an “Employer Assisted Work Visa”. This type of temporary visa only permits the migrant employee to work for the employer nominated in the initial visa application and subsequently stated in the visa. It is the most common type of work visa in New Zealand.
Unfortunately, this regime means that a migrant employee can be reluctant to report a workplace incident or breach of employment law, simply due to fear of losing his or her visa. Therefore, employers can, sometimes even unwittingly, be in breach of New Zealand’s employment laws, which carries significant potential penalties.
Migrant Exploitation Protection Work Visa
The recent change to the current regime, is the introduction of a new temporary visa, named the Migrant Exploitation Protection Work Visa (MEPWV).
The premise of the MEPWV is:
- If a visa holder is being, or has been, the subject of exploitation at the hands of their employer, they can apply for a MEPWV.
- If the MEPWV is granted, this will be approved for a period up to six months, or for the duration remaining on the applicants’ current work visa.
- If the MEPWV is granted, the conditions of this visa, does not tie them to any one employer.
- The MEPWV will provide such a migrant employee with greater flexibility, specifically the ability to leave their current job, and obtain another one.
Process
In terms of the process, Employment New Zealand must first:
- Receive a complaint from a migrant employee, alleging exploitation at the hands of their employer.
- Following the assessment of the complaint, a Report of Exploitation Assessment Letter (Report) will be produced by Employment New Zealand.
- If the alleged exploitation is assessed as being credible, those findings, we expect, will be detailed in the Report.
- The Report will then be provided to Immigration New Zealand as evidence in support of the application for a MEPWV.
Examples of exploitation
To grant a MEPWV, an immigration officer must be satisfied that exploitation has occurred. Some examples of exploitation may include:
- Denial of leave entitlements under the Holidays Act 2003
- Non-payment of salary or wages in respect of leave taken
- Payment below the median wage and/or agreed remuneration as set out in an Individual Employment Agreement
- Denial of mandatory rest and meal breaks, as set out at Part 6D of the Employment Relations Act
- Breaching other terms of a visa holder’s employment.
In summary
It is now vitally important for employers to be up to date with their legal obligations, as a migrant employee may choose to report the breach to Employment New Zealand, rather than first raising it with an employer. The migrant’s understandable motivation will be to gain a MEPWV and thereby protection from any potential employer retaliation. Unfortunately, in many cases, this will mean that an employer will not get the opportunity to redress an inadvertent mistake before it is escalated to the authorities.
If you have any questions about your obligations or rights in this area, please contact our immigration and employment teams.
Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.
