Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

Migration for Employment Convention (Revised), 1949 (No. 97) - New Zealand (Ratification: 1950)

The Committee notes the information supplied in the Government’s report and the comments of the New Zealand Employers’ Federation contained in the report.

1. The Committee notes the adoption of amendments to the Immigration Act, 1987, which aim, inter alia, at improving the effectiveness of the removal regime for persons unlawfully present in New Zealand. The Committee also notes the adoption of the Employment Relations Act, 2000, that extends the prohibited grounds of discrimination in employment. The Committee asks the Government to provide detailed information on the implementation of the new provisions of law or regulations adopted. It also would be grateful if the Government would state how the current trends in migration flows have affected the content and implementation of its national migratory policy and legislation.

2. Article 6 of the Convention. Recalling that under paragraph 1 of this Article, every State which has ratified the Convention undertakes to apply, without discrimination in respect of nationality, race, religion or sex, treatment no less favourable than that which it applies to its own nationals in respect of the matters enumerated in subparagraphs (a) to (d) of this Article, the Committee would be grateful if the Government would indicate the measures taken or envisaged to ensure that women migrant workers are treated on a par with their male counterparts, foreign or otherwise, in respect of working and living conditions, social security, work-related taxes, and access to the justice system - in view of the growing feminization of migration for employment (see paragraphs 20-23 and 658 of the General Survey of 1999 on migrant workers).

3. Article 6, paragraph 1(b). The Committee refers to its previous direct request concerning the right of migrant workers to equal access to social security. The Committee notes that section 74 A(1) of Social Security Act, No. 136 of 4 December 1964, as amended in 1991, 1993 and 1999, provides among other things that a person who holds a temporary work permit or a limited purpose permit will not have the right to receive cash benefits, although an emergency benefit can be paid on the grounds of hardship. The Committee notes from the Government’s report that, in order to be granted an emergency benefit, the applicant, who does not have permanent residence, must be lawfully present in New Zealand and be awaiting the outcome of his/her application for refugee status in New Zealand; must have refugee status in New Zealand; or must be applying for a residence permit under the Immigration Act, 1987, and be compelled to remain in New Zealand through unforeseen circumstances. Applicants who have a temporary permit may not qualify if they do not meet the above criteria. The Committee notes these distinctions and the possibility that some temporary permit holders may not have access to any cash benefits and thus would not be treated on an equal footing with respect to New Zealand citizens or permanent residents in New Zealand.

4. In this respect, the Committee would like to draw attention to the preparatory work to the adoption of the Convention, which makes it clear that the Convention covers all migrant workers, both those with permanent and temporary residence status, and that Article 6(1) of the Convention stipulates that States should apply to immigrants lawfully within their territory, treatment no less favourable than that applicable to its own nationals, in respect of certain matters, including social security (see paragraph 431 of the General Survey of 1999 on migrant workers). The imposition of residency requirements is not contrary to the Convention, in so far as this condition is applicable also to nationals of the State, which would not appear to be the case. The Committee therefore hopes that the Government will provide information on the measures taken to ensure that its legislation in this regard is in conformity with the Convention and that it will supply information in its next report on the application of Article 6(1)(b) to temporary permit holders.

5. The Committee notes the New Zealand Employers’ Federation comment according to which some migrants to New Zealand, who gain residence on the basis of their work-related skills, subsequently find it extremely difficult to take up the work for which they are qualified. The alleged reason is that occupational licensing rules require such migrants to re-establish their credentials by sitting for further examinations in the country, which in practice may prove to be difficult. The Committee would be grateful if the Government would provide information on any measure it has taken to facilitate access of migrant workers to skilled jobs such as, for example, recognition of occupational qualifications acquired outside the country.

6. The Committee asks the Government to continue to provide information on New Zealand nationals working abroad, and the countries of origin of foreigners employed in New Zealand and to communicate the results, if any, of the relevant activities of the labour inspection service, in accordance with the provisions of the Convention.

7. Finally, the Committee asks the Government to state whether courts or other tribunals have handed down decisions involving questions of principle relating to the application of the Convention. If so, please supply the text of these decisions.