Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

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

The Committee notes the observations of the New Zealand Council of Trade Unions (NZCTU) and of Business New Zealand (Business NZ) communicated with the Government’s report, on 4 September 2017, as well as the Government’s reply thereto.

Article 6(1)(a)(i) of the Convention. Equality of treatment with respect to conditions of work. In its previous comment, noting the situation regarding working conditions and unpaid wages of migrant workers in horticulture and viticulture, as well as in food and other services, and the concerns relating to the conditions and unequal treatment of international students in the labour market, the Committee requested the Government, in cooperation with employers’ and workers’ organizations to: (1) examine the benefits of extending the Recognized Seasonal Employment (RSE) scheme to the dairy and food sectors, and provide information on the results achieved; and (2) indicate the outcome of, and any follow-up given to, the operational response and policy review relating to migrant students in the labour market, and to provide information on any of the measures to improve the conditions of work of migrant workers in horticulture, viticulture, food and hospitality, and other services. As regard the RSE scheme, the Committee notes that, in its report, the Government indicates that the Ministry of Business, Innovation and Employment (MBIE) has not explored extending the RSE scheme to the dairy and food sectors, or other occupational sectors as suggested. In New Zealand, most dairy sector jobs are permanent and this does not align with the seasonal nature of the RSE scheme. Any other preferential work programmes would need to be consistent with the “New Zealanders first” approach and would most likely not be an “extension” of RSE, but would make use of existing work visa settings. Concerning the measures taken to improve the conditions of work of migrant RSE workers in horticulture, viticulture, food and hospitality, and other services, the Government indicates that it has taken measures, through the formulation of two complementary wrap around programmes: the Strengthening Pacific Partnerships (SPP) Project, and the RSE Worker Training Programme (Vakameasina), which provide inter alia for training to RSE workers with the aim of improving English-language, numeracy, financial and computer literacy and health and life skills during their time in New Zealand; publication of hospitality sector guides for workers (information about minimum employment entitlements, including minimum wage, leave, health and safety, list of employment services) and their employers (employers’ responsibilities to ensure that migrant workers understand their entitlements and are employed lawfully), developed in consultation with WorkSafe, the Labour Inspectorate and hospitality industry groups and unions. The Committee notes the observations made by BusinessNZ that it is important to highlight that most employers do no exploit migrant workers and that, whether working lawfully or unlawfully in New Zealand, migrant workers have long had the protection of the country’s employment laws. The Committee notes, from the statistics provided by the Government, that between 2012 and 2017, out of the 1,246 investigations involving migrant workers, where breaches of employment standards were identified, 695 or more than 50 per cent concerned the dairy, horticulture, viticulture and hospitality sectors. The Committee requests the Government to continue its efforts to improve the working situation of migrant workers in the horticulture, viticulture, food and hospitality industries and to continue to provide detailed and up-to-date statistics, disaggregated by sex, in order to assess progress made over time.

Migrant students involved in the labour market. In its observation, NZCTU recalls that student visa holders are eligible, under the terms of their visa, to undertake up to 20 hours per week of paid employment and indicates that, in some cases, student visas are being promoted by offshore migration agents as a pathway to temporary work in New Zealand. Section 11 of the Immigration Advisers Licensing Act 2007 provides an exemption from the general licensing requirement for persons who provide immigration advice offshore; and advice only in respect of applications made under the Immigration Act 2009 for a temporary entry class visa – temporary visa – student visa. NZCTU states that there is evidence that this exemption from licensing is being exploited by unscrupulous migration agents, and a minority of education providers, to provide misleading advice and to facilitate exploitation in employment of migrants on student visas and recommends that this exemption for providing advice on applications for student visas be removed. The Committee notes also the observations made by BusinessNZ that, in many instances where exploitation occurs, both in relation to migrant students in the labour market (and migrant workers more broadly), the perpetrator is a migrant employer from the worker’s own country. As regards misleading advice provided to migrant students by offshore agents, the Government declares that it has considered a range of options to improve the quality of advice to students from offshore agents, including removing the licensing exemption for advice on student visas provided offshore, as suggested by NZCTU. However, a decision was taken to allow the exemption to remain, as changes to the provision of immigration advice to students were being implemented to improve the quality of advice. The Government has sought to address this issue through changes to the Education (Pastoral Care of International Students) Code of Practice (the Code) which makes education providers fully accountable for the outcomes of their agents. The New Zealand Qualifications Authority (NZQA) has new powers to take actions against those providers who use poor performing agents. The effectiveness of these changes to the Code has been supported by improving the information on agent performance available to providers. As regards international students, the Committee notes that the Government recognizes that some populations may be at greater risk of being exploited in the New Zealand labour market and that international students may be particularly vulnerable as they are often young, without existing contacts in New Zealand and may agree to work under substandard terms and conditions, due to a lack of awareness of New Zealand’s minimum employment standards or fear to report employers if they are working unlawfully. In addition, they may have financial and family pressures from their home country and face language and cultural barriers, including finding acceptable employment. These factors combined with limited work skills and experience, may cause them to accept any work conditions they are offered. The Government is taking steps to address this vulnerability by enforcing employers’ compliance with minimum employment standards but also by developing an: (i) International Education Strategy, a cross-agency strategy involving the Ministry of Education (MoE), Education New Zealand (ENZ), MBIE (including ImmigrationNZ), the New Zealand Qualifications Authority (NZQA), the Tertiary Education Commission (TEC) and other agencies; and (ii) an International Student Wellbeing Strategy which provides an outcomes framework for government agencies focused on ensuring international students are welcome, safe and well, enjoy a high quality education and are valued for their contribution to New Zealand. The Committee notes that, in February/July 2016, ImmigrationNZ, ENZ, Auckland Tourism Events and Economic Development (ATEED) ran a pilot programme “Project Skills” to improve work-readiness for international students. The Committee encourages the Government to continue taking measures to address the specific vulnerability of migrant students involved in the labour market, and to monitor and assess regularly the results achieved with a view to adjusting the measures taken or envisaged, if needed.

The Committee is raising other points in a request addressed directly to the Government.