Category Archives: Immigration basic facts

All you need to know about migrant worker rights in NZ

There has been a lot in the news recently about migrant employee exploitation, and there seems to be some common themes. As most migrant’s visas are tied to an employer they can often feel trapped, unable to report issues as their lives in New Zealand depend on the linked employer. So what kind of exploitation are migrant workers facing? And more importantly, what can they – even better, our Government – do about it?  We talk to the experts to find out.

Migrant workers in New Zealand face several unique challenges. To find out more we spoke with Aaron Martin of NZIL, employment lawyer Mark Donovan, and Anu Kaloti, founding member of the Migrant Workers Association. All work in areas that help migrants with issues of employment, and all have successfully dealt with many cases of exploitation.

Most major issues that migrant workers face involve exploitation. This usually means the employer is denying the employee their basic rights and entitlements. All New Zealand workers, whether residents or migrants, are entitled to certain rights. Read the full list of rights (in a variety of languages) here:

Employers must include these basic rights and entitlements in their written contract with an employee. But the rights aren’t always put into practice. A migrant on a work visa who wants to live in New Zealand relies on their employer to comply with the rules. Often visas restrict migrants to one particular employer, so a migrant’s fate may be dependent on that sole employer doing the right thing.

 

Migrants are particularly vulnerable to exploitation because if a migrant employee is dismissed or their employer is identified as non-compliant, the migrant’s visa can be revoked. Kaloti often hears of employers threatening migrant workers with “if you don’t do XYZ we’ll get your visa cancelled or report you to Immigration”. She specifies that it is not uncommon for migrants to be verbally and even physically abused.

So, what are the common issues migrant workers face? And what can they do?

1. Wages

Employers must pay migrants a wage specified by the salary band linked to their visa. This wage must be clearly stated on a written employment agreement that has been signed by both parties. Unfortunately, some employers are finding ways around this.

Kaloti explains that often the employer will deposit the correct pay into the employee’s account “so the paper trail is perfect”, only to later demand a portion of that pay be given back. Often this is justified by claiming the employee was in debt to previous loans or training costs. The paper trail is kept clean by asking for the payment in cash or as a bank transfer to a friend or colleague’s account that is then paid back to the employer.

Another common example is hiring migrants under a “two-for-one deal”. Kaloti and the Migrant Workers Association are currently working through such a case with a married couple. The wife is employed by an IT company, which has enabled her to get a work visa. But her employment is on the condition that her husband works for her employer’s other business, an orchard. The wife is receiving the correct salary specified by her visa conditions; the husband, however, doesn’t get paid at all.

If an employee raises these kinds of issues in a public arena, it usually just causes them more grief. “Getting a third party involved can be like putting a fox in a hen house,” Martin says. The Labour Inspectorate works directly with Immigration New Zealand. So, if you report your employer for wage exploitation and you’re in the process of applying for a visa, your case can be denied on the grounds of having a non-compliant employer. This is why, as Martin advises, employees in this situation “usually just shut up and carry on”.

2. Leave and breaks

There are many reports of migrant staff working unpaid overtime or being denied leave or rest breaks. It is easy for an employer to specify the correct hours on a contract, then fail to monitor overtime and keep correct records. Sometimes this can be credited to an overly “relaxed” approach on the employer’s part, but often cases are of a less innocent nature.

Employees can work double the time recorded by an employer but be forced to sign false records in fear of losing their job. Then, if they raise a dispute, the evidence is against them. Employees being denied leave and break entitlements have similar problems providing proof.

If there’s no evidence, it’s can be hard to put together a case. But Mark Donovan offers some reassurance: “Immigration New Zealand and the Labour Inspectorate are alert to the risks around these issues with migrant employers. If the evidence of the employee is only their word and the employer cannot produce any evidence to contradict them, they’re still often likely to be believed as they are putting their life in New Zealand on the line.”

3. Business sold or liquidated

Complications arise for an employee when a business their visa is tied to is sold or liquidated. Sometimes, depending on the conditions of the visa, an employee can apply for a variation. If not, the migrant must submit a completely new visa application.

If the employer has another business, they can offer the employee a new position or a transfer. Martin, having worked on at least four such cases, believes this is an easy fix. If you’re working under an Essential Skills visa, provided the role and the location don’t change, it is likely you will be able to simply apply for a variation. If the role is different or in a new location, Martin says: “Effectively the Work Visa holder has to find another job – but they’re still in a situation of being tied to that employer.”

If a business is getting liquidated, an employee can be out of work without any notice. In some cases, and legally in all cases where a business is sold, notice will be given as specified in the terms of the contract. Immigration New Zealand won’t enforce immediate deportation, but it is imperative employees contact them as soon as they know they’re facing unemployment. Immigration New Zealand can issue a Visitor Visa, which will give the employee up to nine months to find more work.

Unfortunately, many employers don’t want to hire a migrant on a Visitor Visa or an open visa that is due to expire. It can be hard to find an employer willing to work through the gamut of a work visa application, especially if it is only for a short-term role. While it is legal to look for work on a Visitor Visa, it is not legal to actively work. Both parties must be mindful that if a visa’s conditions are not honoured, there can be serious legal implications.

4. Unfair dismissal

Unfair dismissal includes failing to follow a fair and reasonable process, giving less notice than is stated on a written agreement, or failing to provide an adequate reason for dismissal.

Where there is an unfair dismissal, legal action can be taken provided the employee raises a personal grievance with their employer within 90 days of being dismissed. Often disputes of this nature are resolved between the parties in a confidential meeting convened by the Ministry of Business, Innovation and Employment, known as a “mediation”.

Although often straightforward, unfair dismissal cases still can pose a difficult situation for migrant employees. While waiting for a mediation date, or for their case to be considered by the Employment Relations Authority, they will lose their main source of income and no longer meet the visa criteria that keeps them in the country. In a lot of cases, the employer will also unlawfully hold onto the final pay owed to the employee. If the employer has enforced an instant dismissal, or is withholding payout entitlements, the employee is left with no means to pay their rent and basic living costs.

5. Dismissal within the 90-day trial period

Employment agreements can specify a trial period of 90 days or less that allows the employer to dismiss an employee within this period if they aren’t suited to the role. The trial period can be a fairly daunting time for any new worker. For migrants with work visas tied to their employer, it’s not just a job they might lose – it’s their future, and their family’s future, in New Zealand.

This is a hard issue to resolve, as the employer is within their legal rights to dismiss the employee within the period stated on the employment agreement, provided they meet the legal tests for imposing such a trial period. As Martin says: “If you’re dismissed within the 90-day trial period, there’s no way around it other than getting a new job with a new visa or obtaining a Visitor Visa.”

Donovan says that the condition attaching an employer to a work visa is creating many of these issues: “It allows the employer to say ‘Aha! You’re mine!’ and the employee is stuck, even if their wages aren’t getting paid.” Employees avoid seeking legal help or even joining a union from fear of losing their employer and the right to live and work in New Zealand.

Kaloti believes that to reduce exploitation, all work visas should be open. “Tying work visas to an employer is too harsh,” she says.

Martin disagrees that all work visas should be open, but strongly believes most exploitation could be remedied with a simple policy change. “When a migrant raises an issue or needs to leave their job due to exploitation, instead of issuing a Visitor Visa we should give them a 6-month open work visa so at least they can apply for other jobs on a better footing,” he says. A Visitor Visa gives a migrant more time in the country, but they can’t legally work. And the application process for a new work visa once they’ve found an employer can take some time. “The government says it’s trying to protect migrants from exploitation,” says Martin, “but they sadly don’t give a hell of a lot to assist people in those circumstances.”

It’s important that migrant employees know they have the same rights as a resident employee. If you’re a migrant employee and a dispute happens at work, the Citizens Advice Bureau is a good place to start for free advice. They will likely refer you to the Labour Inspectorate or, if it is a personal grievance, the Employment Relations Authority. Alternatively, an employment or immigration lawyer can provide individual support and legal advice.

Kaloti believes that more and more migrants are beginning to speak out about exploitation. Workers who are concerned about jeopardising their visa if they seek legal help could consider a union for support and advice. Kaloti recommends migrants join a union relative to their area of work or one of several unions specific to migrants such as the Migrant Workers Association of Aotearoa, Migrant Action Trust, or the Indian Workers Association.

For more information about resolving workplace issues, check out this Employment New Zealand resource page

If you need help with an Employment or work related issue, contact Mark Donovan here

If you need help with an immigration related issue, contact NZIL here

For a list of work unions available in New Zealand, have a look on the Trade Unions of New Zealand web page here.

Bureaucratic insanity, the Immigration law that caused over-staying…

The introduction of interim visas was a welcomed change, but a major flaw in the process resulted in many people illegally overstaying in New Zealand, despite legitimately trying to follow the law. Recent changes have amended, but not without leaving a number of serious implications for migrants.

Immigration New Zealand’s own processes around Interim Visas have been increasing the number of over-stayers in New Zealand. Thank fully, Immigration New Zealand changed their policy on the 27th of August to address this issue.

Interim visas are what Australians sensibly call “bridging visas”. If Immigration New Zealand can’t make a decision on a new visa application before the applicant’s existing visa expires, it can issue an electronic interim visa to allow the applicant to stay in the country until the decision is made.

Prior to the introduction of interim visas, if your existing visa expired and Immigration New Zealand hadn’t decided on your application for a new one, you became an over-stayer. So Immigration New Zealand’s own timeliness in decision-making (or lack of timeliness) contributed to creating a pool of over-stayers.

Interim visas were intended to stop that problem. But there was a fundamental flaw in their operation: they expired the day after a decision was made on an application.

If you made a new application on 1 June, and your existing visa expired 1 July, the interim visa would start 2 July to allow you to stay here lawfully until a decision was made. But if Immigration New Zealand declined the new application after 1 July, your interim visa would end one day after that decision, making you an over-stayer.

That one day became crucial to many: you could use it to apply for reconsideration of the decline decision, or to reapply for the same visa.

Applications for reconsideration, however, required you to submit your passport to Immigration New Zealand along with the request for reconsideration. If your passport was held by Immigration New Zealand when the decision to decline the visa was made, you often wouldn’t get it back until three working days later. That meant you were unlawful in New Zealand, and being unlawful meant you lost the right of reconsideration.

Even if you had your passport, if the decision to decline your application was made late in the day on a Friday, by Monday when Immigration New Zealand opened to receive a reconsideration application, you were unlawful in New Zealand and therefore not allowed to apply for reconsideration.

This bureaucratic insanity meant many people legitimately trying to follow the law ended up illegally in New Zealand.

Even when people in this situation decided to leave New Zealand, the practical reality of packing up a life meant they would have a period of over-staying. This would then prejudice their ability to obtain visas offshore in order to return to New Zealand.

Think of all the things you need to do when moving countries: if you have rented a house, you need to give notice in accordance with the tenancy agreement. If you are in a job, you need to give notice in accordance with your employment agreement. You have to close bank accounts, sell cars, and sell personal possessions. You need to arrange accommodation back in your home country – which you may have not lived in sometimes for five years or more. All these things simply can’t be done in 24 hours.

For people who complied with the law, moved back overseas, and applied for a visa to re-enter, Immigration New Zealand would often consider any period of unlawful presence in New Zealand as a basis for claiming the applicant was non-compliant with visa rules and therefore should not be permitted to re-enter New Zealand. This decision was made for people who did not intend, want, or deliberately become over-stayers.

Finally, Immigration New Zealand has followed the Australian model and now the interim visa expires 21 days after a decision is made. This permits a practical window of opportunity for people to challenge a decision that may be incorrectly made. Or, alternatively, it gives them a realistic and practical period of time to leave New Zealand.

It is unfortunate that the change comes after so many people have had their immigration history destroyed by poor policy.

Worried about deportation? Have a look at our deportation page here.

If you have questions regarding the Interim Visa or any other recent policy changes, please contact us here.

For more migrant information and resources, have a look here.

Why NZ needs skilled migrants

NZ needs skilled migrants

Immigration is a hot topic in the news, stories highlighting an increase in migrant workers often brings a backlash from the public as there is a perception that skilled migrants are taking opportunities for lower pay that could be filled by a local workforce.

 So why does New Zealand have to recruit workers from overseas?

Immigration New Zealand’s website currently lists over 60 areas that immediately need skilled workers. These include IT, agriculture, education, the health sector, and trade and construction.

If the job is not in an area of skill shortage, and the visa applicant is not qualified as detailed in that list, current visa criteria requires companies to make significant attempts to fill vacancies with New Zealanders. And it goes without saying that companies would prefer to hire locally. As prominent immigration lawyer Aaron Martin says: “Why on earth would an employer go through the paperwork of a visa application process if they don’t have to?”

But, as the lengthy list of shortages shows, there just aren’t enough Kiwis with the required training and experience to fill the gaps. Talent is the single most important factor in the future prosperity of many industries, in fact the lack of available talent will be the greatest restriction in their growth.

Even in areas facing skill shortages, hires can take months or more. Catherine Clarke of Roam Creative, a leading digital product and innovation agency, told us: “It can take at least two to three months to fill a vacancy. Roam has been recruiting continually all year to fill roles including testers, designers, developers, and product managers. With perseverance and a strong employer brand, we’ve been lucky enough to source some amazing talent recently, but it is challenging as there simply aren’t enough skilled local candidates to cope with the growth of the IT industry in New Zealand.”

Roam recently set up an office in Sydney, but shortage of IT personnel is a problem there, too. With difficulty filling roles in New Zealand, and even stricter immigration laws in Australia, Clarke knows the vacancies won’t be filled quickly.

Crop production is another area on the immediate skill shortage list. Pedro Wylaars, National General Manager of Zealandia, has over 220 staff working to grow and supply millions of plants to commercial growers and garden centre businesses across the country. The company is always advertising for staff, and it struggles even to fill roles that offer on-the-job training.

It’s also a challenge for Zealandia to find New Zealanders with relevant tertiary qualifications. “The universities in New Zealand can’t fill up the horticulture papers,” says Wylaars. “And most of those students end up switching over to the agricultural sciences anyway.”

Wylaars says that if they couldn’t take on staff from other countries, they’d be “in big trouble”.

But aren’t migrants taking jobs from Kiwis who need work?

Both Roam and Zealandia are in industries on the skills shortage list, and are lucky enough to be able to recruit from overseas. But some people think these jobs should go to unemployed Kiwis.

Martin says this is a misconception of the realities of operating a business. “Some New Zealanders have a myopic view of the needs of New Zealand employers who are (often) trying to compete internationally” he says. “Some think ‘being a Kiwi’ is a qualification in itself that should put them first in terms of candidate selection”

Martin believes that employers should be able to choose staff who are the best fit for their company, with the best skills and the highest expertise. “If you miss out on a job to someone from overseas, it means you were not the best-qualified person, and you need to get out and upskill yourself. The best-skilled people get the jobs – it’s that simple”.

What benefits do migrants bring to jobs? 

It’s not just skills, training, and experience that migrants bring to roles; it’s a whole different ethos. Drive, ambition, energy, and a willingness to continuously upskill come as part of the package.

Martin credits this to one simple reason: “When you uproot yourself and family, and say good bye to your friends, your professional networks, and the comfort of a labour market that understands your skills, and you drop yourself into a completely foreign country, there’s no room for failure.”

Most migrant employees come from countries where there are several billion people. With intense competition for jobs and employment it’s necessary to adopt a strong work ethic to make yourself shine. New Zealand employers find this incredibly attractive. “It’s not a one-way equation,” says Martin. “It’s not as if migrants are the only ones benefitting – we actually get something that we need, too. It’s a two-way exchange. We get the benefit of their skill and experience. We get an opportunity to learn new things and that knowledge transfer benefits business and local employees.”

 Migrants also bring valuable diversity to the workplace. Roam, which creates apps and digital solutions across a variety of industries, finds this hugely beneficial. “Every product we build is designed with the user in mind. Migrants have been so valuable in bringing new insight and different perspectives when it comes to designing products for the user, which gives our Product teams a broader understanding of users on a global scale, empowering us to design products for the global market.”

The skills and experience migrants bring can also help take businesses up to another level. Wylaars experienced this first-hand when he employed an overseas candidate who is recognised globally as one of the top five in their field. “We thought we were already doing a pretty good job,” says Wylaars. “But this new employee has taken us two or three rungs further up the ladder – we’re now getting global attention for some our new techniques and processes.”

What benefits do migrants have on the economy?

Clarke says that areas experiencing skill shortages, such as IT, have become “candidate-driven job markets” where locals can demand high salaries. “In some cases, IT salaries have been driven up because of this,” she says.

High salaries obviously impact employers, with the cost usually passed onto clients. But the claim that migrant labour dampens wages is not the reality of employers experience.

Clarke states: “Our employees are hired for their expertise and their value to the business. Whether they were hired locally or overseas, this is irrelevant. It’s neither fair, nor sustainable to offer migrants lower pay as they’ll just move on to another job”.

International employees use their previous connections with overseas companies to help businesses grow, as well as create new businesses. This helps our overall economic growth. Migrants bring innovative concepts, methods and different perspectives with them from overseas.

“When you look at the net gain on economic activity of New Zealanders versus migrants, migrants perform well as their draw on publicly funds services is often low,” Martin says.

Migrants are less likely to claim benefits and, contrary to popular belief, actually create more jobs, mostly due to supply and demand. “As more migrants come into to the country we begin to see more smaller businesses established,” says Martin. “Migrants are often entrepreneurial and seek economic freedom and control over their own destiny by being self-employed. These new Kiwis create vital economic activity for our country.”

Looking for Immigration advice? If you have a concern about your visa or would like to speak to our expert immigration team for support with a migrant employee application, get in touch today.

The Employers guide to recruiting offshore staff

The Employers guide to recruiting offshore staff

With the New Zealand economy booming, we are seeing an increasing demand from many business sectors to recruit from an offshore skilled labour talent pool. We created this guide to help employers understand what they need to do when considering hiring a skilled migrant.

Continue reading The Employers guide to recruiting offshore staff

How does the NZ immigration system work?

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How does the New Zealand Government’s immigration system work?

The system is run by a Government Department known as Immigration New Zealand or INZ.

Immigration system is looking to attract permanent migrants that can help meet demands for skills in New Zealand’s labour market, and investors or entrepreneurs who have capital to invest in the NZ economy or people who have a family or relationship connection.

Continue reading How does the NZ immigration system work?