From 1 April 2017, the Ministry of Business, Innovation and Employment (MBIE) will enforce stand down periods for employing migrants for any employer who incurs employment standards-related penalties.
This new regime is designed to protect migrant workers from exploitation. This group of employees are more vulnerable than domestic workers who enjoy protection from the existing regulations and penalties.
Employers can be stood down because of investigations by Labour Inspectors, an Employment Relations Authority determination or an Employment Court decision in relation to any worker. This period could be up to 2 years in length, depending on the severity of the breach. Figures released by MBIE show that if the law had been in place in the last financial year, 41 employers would have been in line for a stand down period for breaches of employment standards. The Minister of Immigration, Michael Woodhouse said the number of employers who could be affected straightway is around 150.
New Zealand’s horticulture industry is heavily reliant on migrant workers during the key picking and orchard maintenance periods. Without them, the ability for orchard owners and pack houses to process the produce volumes would be impossible. Yet migrant worker exploitation is rife in New Zealand, according to a recent Auckland Business School study. The Human Rights Commission identified this widespread exploitation as one of the top five human rights abuses in New Zealand.
The beauty of this new penalty is that it gives a greater level of protection for migrants from employers who have exploited employees in the past. However, this may not encourage workers to come forward and report current exploitation. Whilst the migrant will be able to work out the term of their visa with the non-compliant employer, they will not be able to continue to work for them after that. If the period left to a visa’s expiry is short, the migrant worker may opt to continue to work for the non-compliant employer to gain a further work visa first, potentially extending the time they are at risk. There is also the risk that a migrant will think that reporting such abuses will end their employment immediately, and cut short their ability to remain in New Zealand.
The threat of a stand down should prove to be an effective deterrent to regular employers of migrant workers. This regime places a brighter spotlight on a business’s need to comply strictly with its obligations if you are currently (or plan to be) an employer of migrant workers. If you need assistance with any element of your employment law compliance, contact the Employment team.