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employment

Migrant worker exploitation: Reporting and rights

Key Takeaway

Migrant workers in New Zealand have specific legal rights and protections against exploitation under various laws. These include entitlements to minimum wage, written employment agreements, and safe workplaces. Exploitation can be reported to authorities like the Labour Inspectorate or Immigration New Zealand, and a special visa may be available for victims. Employers face significant penalties for non-compliance.

Understanding Migrant Worker Exploitation

Migrant worker exploitation occurs when an employer abuses their power over a migrant worker, often by violating New Zealand's employment or immigration laws. This can involve breaches of minimum employment standards, unsafe working conditions, or actions that undermine a worker's immigration status. New Zealand law provides a framework of rights and protections for all workers, including those on temporary visas, to prevent and address such exploitation.

Legal Protections for Migrant Workers

Migrant workers in New Zealand are entitled to the same fundamental employment rights as all other workers. These rights are primarily established by the Employment Relations Act 2000, Minimum Wage Act 1983, Holidays Act 2003, and Health and Safety at Work Act 2015.

Fundamental Employment Rights

  • Written Employment Agreements: Every employee, including migrant workers, must have a written employment agreement. This agreement sets out the terms and conditions of their employment [Source: Employment Relations Act 2000, s 63].
  • Minimum Wage: All employees aged 16 and over are entitled to be paid at least the adult minimum wage rate for all hours worked [Source: Minimum Wage Act 1983, s 4]. Different minimum rates may apply to employees under 16 or those undergoing recognised training [Source: Minimum Wage Act 1983, s 4A].
  • Paid Leave and Holidays: Employees are entitled to paid annual leave, sick leave, bereavement leave, and paid public holidays once they meet the eligibility criteria [Source: Holidays Act 2003, s 16, s 44, s 65, s 69].
  • Safe Workplace: Employers have a primary duty of care to ensure, so far as is reasonably practicable, the health and safety of their workers while at work [Source: Health and Safety at Work Act 2015, s 36]. This includes providing a safe working environment and necessary equipment.
  • Protection from Discrimination: Discrimination in employment based on prohibited grounds such as race, ethnic origin, or disability is unlawful [Source: Human Rights Act 1993, s 21, s 22]. Migrant workers are protected from such discrimination.
  • Right to Join a Union: Employees have the right to become or not become a member of a union and to participate in union activities [Source: Employment Relations Act 2000, s 9].

Protection against Recruitment Fees

It is an offence for an employer or any person to demand or receive payment from an applicant for a visa for arranging or helping to arrange employment in New Zealand [Source: Immigration Act 2009, s 343B]. This protects migrant workers from being charged for their job placement.

Protection of Personal Documents

It is an offence to intentionally hold, destroy, or damage a person's passport or other travel documents with the intent to exploit or facilitate the exploitation of that person [Source: Crimes Act 1961, s 98AB]. This provision protects migrant workers from having their identity or travel documents withheld by employers.

Identifying Exploitation

Exploitation can manifest in various forms, including but not limited to:

  • Being paid less than the minimum wage or not being paid at all [Source: Minimum Wage Act 1983, s 4].
  • Working excessive hours without proper rest breaks or overtime pay.
  • Not receiving entitlements such as paid annual leave or public holidays [Source: Holidays Act 2003, s 16, s 44].
  • Being required to work in unsafe conditions [Source: Health and Safety at Work Act 2015, s 36].
  • Having personal documents, such as passports, withheld by an employer [Source: Crimes Act 1961, s 98AB].
  • Being threatened, abused, or intimidated by an employer.
  • Being charged fees for a job in New Zealand [Source: Immigration Act 2009, s 343B].

Reporting Exploitation

Migrant workers who believe they are being exploited have several avenues for reporting and seeking assistance.

Where to Report

  • Labour Inspectorate: The Labour Inspectorate, part of the Ministry of Business, Innovation and Employment (MBIE), investigates breaches of employment standards. Reports can be made confidentially.
  • Immigration New Zealand (INZ): Exploitation can be reported to INZ, especially if it relates to visa conditions or immigration fraud. INZ has specific processes to protect migrant workers who report exploitation.
  • Employment Relations Authority (ERA): The ERA is an independent body that investigates and resolves employment relationship problems. It can issue determinations and impose penalties [Source: Employment Relations Act 2000, Part 5].
  • Police: In cases of severe exploitation that may constitute criminal offenses, such as human trafficking or forced labour, reports can be made to the New Zealand Police [Source: Crimes Act 1961, s 98, s 98A].

Migrant Exploitation Protection Visa (MEPV)

The Migrant Exploitation Protection Visa (MEPV) is a specific temporary visa category available to migrant workers who have been exploited while in New Zealand. This visa allows eligible workers to remain in New Zealand lawfully for a period, with open work rights, while their exploitation report is being investigated. Eligibility for an MEPV is assessed on a case-by-case basis by Immigration New Zealand, often through special directions by the Minister of Immigration [Source: Immigration Act 2009, s 61]. The purpose of the MEPV is to support victims of exploitation and encourage reporting without fear of immediate deportation due to a compromised visa.

Employer Obligations

Employers of migrant workers have a strict obligation to comply with all relevant New Zealand employment laws, including:

  • Providing a written employment agreement to every employee [Source: Employment Relations Act 2000, s 63].
  • Paying employees at least the minimum wage [Source: Minimum Wage Act 1983, s 4].
  • Providing correct leave entitlements [Source: Holidays Act 2003, various sections].
  • Ensuring a safe working environment [Source: Health and Safety at Work Act 2015, s 36].
  • Acting in good faith in all aspects of the employment relationship [Source: Employment Relations Act 2000, s 4].
  • Not demanding or receiving fees for arranging employment for visa applicants [Source: Immigration Act 2009, s 343B].
  • Not coercing workers by withholding their personal documents [Source: Crimes Act 1961, s 98AB].

Consequences for Employers

Employers found to be exploiting migrant workers can face significant penalties, including substantial fines, compensation orders for underpaid wages, and debarment from employing migrant workers in the future. In severe cases, criminal charges, including imprisonment, may be laid for offenses such as human trafficking or slavery [Source: Crimes Act 1961, s 98, s 98A]. Breaches of employment standards can result in penalties determined by the Employment Relations Authority or the Employment Court [Source: Employment Relations Act 2000, Part 10].

When to Seek Independent Legal Advice

It is recommended that individuals affected by or concerned about migrant worker exploitation seek independent legal advice. Information on rights and reporting processes can be obtained from official government agencies and Community Law Centres (https://communitylaw.org.nz/) which offer free legal assistance.

Key Resources