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Ban threat for offending employers

10 Apr 2017

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By Mike Toepfer, Director, Aspiring Law

Local employers who hire migrants would do well to double-check they’re complying with all of their employment obligations, lest they be banned from employing foreign staff, under new laws which came into effect on April 1.

Designed to address recent cases of exploitation of overseas workers, the law is also aimed at protecting New Zealand’s reputation as a place of safe and fair employment, especially given our ongoing reliance on international labour to fill skilled positions in key growth areas.

Our Queenstown-Lakes area, in particular, relies heavily on migrant workers, particularly to staff roles in the tourism, ski and agribusiness sectors.

One of the worst cases of worker exploitation to come to light so far saw New Zealand hand down its first conviction for trafficking last year. Faroz Ali was found guilty of 31 charges relating to Fijian workers working illegally in New Zealand, and jailed for nine years and six months. His workers had been subjected to exploitative conditions on farms in the Bay of Plenty area.

But, be warned, the Government has signalled a hard-line approach on far lesser transgressions. Even a relatively minor failure to comply with minimum employment standards for migrants could result in a ban on hiring people from overseas for between six months and two years. Further repercussions include being taken to task by the Ministry of Business, Innovation and Employment’s labour inspectorate, the Employment Relations Authority or the Employment Court.

Anyone subject to a ban, but who still has migrant workers in their employ, will be allowed to keep them on for the duration of their visa, but the employees will not be granted any further visas allowing them to work for the errant employer.

To be clear, this new law isn’t seeking special treatment for migrant workers – it serves to reiterate that workers, whether from Wanaka or Wyoming, Dunedin or Delhi, are entitled to the very same minimum standards of employment under the:

  • Employment Relations Act 2000
  • Minimum Wage Act 1993
  • Parental Leave and Employment Protection Act 1987
  • Holidays Act 2003
  • Wages Protection Act 1983

Some of the forms of exploitations of migrant workers that have been uncovered so far include:

  • Excessive working hours with no breaks
  • No pay or severe underpayment
  • No holiday pay
  • No employment contract
  • Taxes deducted but not paid to IRD
  • Poor treatment and conditions of employment
  • Employers demanding significant payments from employees to arrange residency

The Government has said the ban won’t relate to an employer who commits a very minor breach, where their conduct is mostly compliant and they’ve demonstrated a desire to comply with standards – for example, entering into an enforceable undertaking to achieve compliance and rectify any breaches.

If you’re an employer, whether you employ a Kiwi workforce, or your workplace looks like the United Nations, it’s really important, anyway, to make sure you have solid employment contracts in place, and that you both understand, and comply with, all of your obligations.

The overarching advice here for employers who rely on migrant labour is, firstly, understand your various employment obligations across the board, comply with all of them – and don’t treat your international staff any differently than you would New Zealanders.