By Sascha Nicoll
Exploitation can come in many different forms. If you hire employees on a visa, you need to be aware of the different ways that the ill-treatment of workers can take shape and how to assure your migrant workers are receiving at least the minimum employment rights in New Zealand.
Defining exploitation of migrant workers
The exploitation of migrant workers is defined as: behaviour that causes or increases the risk of material harm to the economic, social, physical or emotional well-being of a migrant worker. This can include, breaches of minimum employment standards, health and safety, and immigration laws.
The Employment Authority usually won’t consider minor or one-off transgressions as exploitation.
Examples of exploitation include but are not limited to:
- Threatening or bullying your employees.
- Withholding employee passports or money.
- Locking employees in the workplace.
- Not allowing them any time off work.
- Paying below the minimum wage, underpaying the worker for the role they are performing, or not paying them at all.
- Threatening to harm employees or families if they don’t cooperate.
Many migrant workers don’t report exploitation because they’re afraid to lose their job, or because their work visa (and right to live in New Zealand) is tied to their employer. They fear that if they complain, the Government will deport them. Sadly, some employers will even use this type of fear as a tool to take advantage of migrant workers.
How Employment New Zealand is protecting migrant workers
Migrant workers who believe they’re victims of worker exploitation are strongly encouraged to come forward and make a complaint against their employers to Employment New Zealand (Employment NZ). From here, Employment NZ will investigate their grievance and provide appropriate support and advice.
In a further attempt to stamp out migrant exploitation in New Zealand, from 1 July 2021, the Ministry of Business, Innovation and Employment (MBIE) has introduced a new type of visa called the Migrant Exploitation Protection Work Visa (MEPWV). The introduction of this six-month visa will support migrant workers to alert the authorities, leave exploitative situations quickly, and look for a safer workplace anywhere in the country – all while remaining in New Zealand lawfully.
This visa is available to workers who hold an employer-supported work visa and have had Employment NZ issue them, with a Report of Exploitation Assessment letter after assessing their exploitation complaint.
Five ways to ensure you’re protecting workers’ rights
1. Provide at least the minimum employment standards
You should always treat all employees fairly and ensure that you meet your lawful obligations as an employer; at the very least, this means providing your employees with their minimum employment rights and entitlements.
2. Stay informed
Keep up to date with employment legislation changes so you don’t get caught out by new regulatory requirements. If you haven’t already signed up for HR Assured’s monthly Stay Informed newsletter, this can be a great way to learn about changes in the world of workplace relations. You can sign up at the bottom of this blog page.
3. Check pay and leave entitlements are correct
Implement processes to check that you’re paying your employees correctly and providing them with the correct leave and public holiday entitlements. Remember, you need to pay all employees at least the minimum wage depending on whether they’re on an adult, starting out, or training wage.
Keep and maintain compliant wages, time, holiday and leave records as well as written employment agreements.
5. Regular audits
If you’re not already in the practice of regularly reviewing HR compliance in your business, this is something to consider. Even a basic HR audit can help you spot inconsistencies or issues and ensure your business is compliant. Download our free HR Compliance Health checklist below for a simple step-by-step audit guide. We designed this so you can share it with anyone else in your business who oversees employment practices for their team – think franchise managers, senior leaders or heads of other business units.
Penalties for worker exploitation
The consequences of worker exploitation can be disastrous for you and your business. Not only is this type of treatment prohibited, but it can negatively impact your business’s reputation, brand, culture, employee morale, and productivity.
Unfortunately, there has been a slew of recent news stories about employers taking advantage of their migrant employees’ vulnerable positions.
In a recent case, the Employment Relations Authority (ERA) ordered three South Auckland stores operating as superettes to pay $57,000 in penalties for employment law breaches. This fine was on top of the $90,000 the ERA had previously ordered the companies to pay in wage and holiday pay arrears to two former employees who were reliant on their employers’ support for their immigration status. The Labour Inspector also found these businesses failed to keep accurate records and provided false information during the investigation.
If you’re found to be guilty of exploiting migrant workers, you could face imprisonment for up to seven years and face fines of up to $100,000.00. MBIE has also created a blacklist of law-flouting companies banned from hiring employees from overseas after abusing their workers’ rights – you don’t want your business name listed here!
Also, all employers wanting to support work visa applications from overseas workers must pass accreditation standards to receive the Accredited Employer Work Visas (AEWV) under a new work visa process. As part of your application, you’ll need to prove that you haven’t breached any employment or immigration law in the past. The rollout of the AEWV process has been postponed until mid-2022.
All employees have a right to New Zealand’s minimum employment standards
Migrant workers have the same minimum employment rights as all New Zealand employees including, holidays, leave, rest and meal breaks, public holidays, wages and written employment agreements.
An HR audit is the first step you can take to protect your business and ensure your treatment of migrant workers – or any worker for that matter – is fair and lawful.
If you don’t have in-house counsel with expert knowledge of employment law, it can be tough to know if you’re complying or if your processes and procedures are best practice – that’s where the team at HR Assured can help! Our expert auditors are trained to uncover HR or H&S risks to your business due to incomplete, incorrect or missing processes, and then they’ll help you fix them.
If you have any questions about preventing worker exploitation and managing a migrant workforce, get in touch with us today.
For HR Assured clients, contact our 24/7 Telephone Advisory Service.
Not an HR Assured client and need some advice? The team at HR Assured can support your business on a range of workplace matters. Contact us today to arrange a confidential, no-obligation chat.
Sascha Nicoll is an Employment Relations and Safety Consultant at HR Assured New Zealand. She has over 15 years of experience working in the HR industry in both consulting and in-house roles. Sascha supports business leaders on various workplace matters, including people management, health and safety, procedural development, and HRIS support.