On 29 September 2022, the Worker Protection (Migrant and Other Employees) Bill was introduced to Parliament and passed the First Reading on 18 October 2022. It has now been passed on to the Select Committee the Education and Workforce Committee inviting feedback and submissions on the proposed bill. Submissions are open until 1 December 2022.
The stated proposed purpose of the Bill is to improve compliance and enforcement legislation to deter employers from exploiting migrant workers.
What does the Bill introduce?
In short, the Bill:
Amends the Immigration Act to empower Immigration Officers and Labour Inspectors to request documents to verify that employers of migrant workers are complying with obligations.
Allows Labour Inspectors and immigration officers to issue an infringement notice when employers fail to provide requested information.
Establishes new infringement offences under the Immigration Act and the Employment Relations Act.
Allows the Chief Executive of MBIE to publish the names of employers convicted of immigration offences or issued with infringement notices.
Amends the companies act so that a person convicted of migrant exploitation and people trafficking cannot be a director or manager of a company.
Why you and your business should be concerned and submit on the proposed Bill?
There are several proposals in the Bill that employers should be concerned about.
Document production and request power and responding time
Currently, the Immigration Act allowed immigration officers to enter work premises and inspect or copy records, provided they had reasonable grounds to believe there may be information in those records or documents that is related to non-compliance. The Bill removes the “reasonable grounds” requirement, so Immigration Officers and Labour Inspectors can make these requests on whatever whim they choose and widens the scope to allow desk-based immigration officers to request this information.
The Bill also introduces a timeframe (which hasn’t previously been stipulated) requiring an employer under the Employment Relations Act of complying within 10 working days. This does not appear to be a reasonable timeframe, especially when we compare it to the Privacy Act response timeframes of 20 working days, and abilities for extension requests in certain circumstances. Yet none of this has been proposed or accounted for in the proposed Bill.
Creation of infringement notices
The Bill creates an ability to issue infringement notices and $1000 fines if employers fail to comply with a documentation production request within 10 working days. They advise the creation of the infringements notices is intended to target and deter “lower-level non-compliance by employers” and they could be issued for the following ‘offending’:
Allowing a person who is not entitled under the Immigration act to work in the employers’ service.
Does not employ a person in accordance with a work-related condition of that person’s visa (such as salary, job description, hours, location etc.)
Fails to provide documents within the timeframe required by the immigration officer (10 days.)
The Bill’s proposals for infringement notices and slapping employers with fines are unlikely to deter offending but rather will deter employers from hiring urgently needed migrants due to the fear of being hit with additional costs for making a mistake or human error or attempting to have some flexibility with employee’s conditions of employment to handle these staff shortages.
Additionally, there is no right of appeal introduced by this Bill to allow an employer to appeal or respond to an infringement notice, other than by requesting a hearing (which would be in Court and hugely expensive to the employer).
Publishing and ‘naming & shaming’ employers
Employers should submit and respond with concerns about the proposal to establish the right for the Chief Executive of the Ministry of Business, Innovation, and Employment to publish the names of employers who are issued with the above infringement notices.
New Zealand employers, businesses, agencies, and individuals are still grappling to understand the huge overhaul of relevant work visas, and the immigration instructions and rules regardless of whether they were big or small businesses. The Immigration Operational Manual (found here) is not the most user-friendly manual to follow. The government announced in 2021, and effective from July 2022 the new employer-led work visa (the Accredited Employer Work Visa) has replaced six other potential work visas. Additionally, the government has closed the work-to-residence visa pathways.
If the Bill is passed, and the ability for infringement notices to be issued for minor mistakes in documentation, and publishing of employer's names becomes possible, this is going to be hugely detrimental to NZ businesses that are still trying to recover.
Businesses in many sectors are struggling with staff shortages due to Covid, the waves of New Zealanders moving overseas for more lucrative job opportunities and the sectors in which New Zealanders tend to not want to work like horticulture and agriculture. Now they’re being slapped with all these extra rules and risks, which are likely to prove barriers to businesses employing migrants. Why would you bother with this risk, cost, and potential for public shaming?
Does the proposed Bill do enough to resolve or address migrant exploitation?
Further action or amendments to the Immigration Act rather than the Employment Relations Act 2000 may be the better approach to adequately curbing migrant exploitation or the fears of migrants in coming forward to being exploited.
It appears the cost of fixing these problems is being shifted onto businesses. Rather than inputting money to create more work visa options and issuing education tools on immigration and employment law guidance for employers, the costs have been shifted to businesses to school up, update or create extra paperwork, obtain ongoing immigration and employment law advice, or be fined and shamed.
If you are unsure of how this Bill may impact your business and want assistance with preparing a submission or checking that your employee records would meet muster, do not hesitate to contact BuckettLaw (04 472 8600 or at www.buckettlaw.co.nz). We offer a free 15-minute phone enquiry.