Compliance for employers and recruitment of migrant workers

Unfortunately, the last six months has seen an increasing number of articles published in the media regarding New Zealand employers exploiting their migrant workers.

One employer and its owners were ordered to pay a total of $85,000 in penalties for exploiting and underpaying a staff member by more than $103,000 over a four year period.   The Inspectorate found that over a period of nearly four year the employee was frequently working up to 92 hours per week.

In January, a Marlborough wine business was fined $120,000 for exploiting vulnerable migrant workers.  The workers were paid based on each piece of work they completed.  However, they were not receiving the minimum wage.

Another employer was ordered by the Employment Relations Authority (ERA) to pay more than $20,000.00 in penalties and unpaid wages to vineyard workers who had been paid less than half the minimum wage.  The ERA found that the employer had taken advantage of “vulnerable” workers.

Alarmingly, another article was published on the same day advising that a migrant worker was paid less than the minimum wage, underpaid for sick leave, final pay and holiday pay, and was not provided with an employment agreement.  His employer was ordered to pay $26,000 in unpaid wages.  They have also been slammed with a ban from hiring migrant workers for two years.

Understandably the Government wishes to stamp out migrant worker exploitation. Proposed changes to the employer-assisted work visas will affect not just temporary workers but significantly impact all employers who rely on migrant workers.   A consultation process on the proposed changes ended on 18 March 2019 and the result of that process is likely to be introduced towards the middle of this year.  If the changes are finalised as proposed, every employer who relies on migrant workers will need to obtain some level of accreditation with Immigration New Zealand (INZ).   Under the current accreditation process, one of the factors that INZ will consider when deciding whether to grant accreditation will be whether the employer can demonstrate they have a history of compliance with New Zealand’s employment and immigration laws.

It is clear that any employer who deliberately exploits their migrant workers should not be granted accreditation until such time as they can demonstrate to INZ they will not breach New Zealand’s employment and immigration laws.  However, for those employers who rely on migrant workers, and who unintentionally breach New Zealand’s laws, will potentially incur a negative impact to their business by a decline of any accreditation application that will allow the employment of migrant staff.

Any employer who is currently relying on migrant staff to fill their vacancies should take steps now to ensure that they have robust systems in place that demonstrate their compliance to INZ.  That may mean seeking advice to have their systems audited.

Regardless of whether the changes proposed are implemented or not, it is still vital that employers can demonstrate compliance with the relevant laws so they can continue to support work visa applications.  INZ currently has the ability to decline work visa applications where the employer has a history of non-compliance.

Lane Neave assists employers to provide workplace audit services concentrating on employment compliance as well as immigration compliance. It is a scalable product in which is affordable to employers and is suitable for those who have a grater need for review.

We strongly advise employers to seek professional advice now regarding their practices so they have robust systems in place.  Taking steps now will enable employers to avoid the potential negative ramifications on their business if they are found by INZ not to have compliant systems in place and are declined accreditation.

Workplace Law team

If you have any queries in respect of the above, or any other Workplace Law issues, please contact a member of Lane Neave’s Workplace Law team:

Employment: Andrew Shaw, Fiona McMillan, Gwen DrewittMaria Green,  Hannah Martin, Joseph HarropHolly StruckmanAlex Beal, Giuliana Petronelli, Abby Shieh
Immigration: Mark Williams, Rachael Mason, Daniel Kruger, Nicky Robertson, Julia StrickettKen Huang, Mary Zhou, Shi Sheng Cai (Shoosh)Sarah Kirkwood, Janeske SchutteLingbo Yu
ACC: Andrew Shaw
Health and Safety: Andrew ShawFiona McMillan

Click here for other Employment Law or Immigration Law articles.

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