Direct Request (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 (BusinessNZ) communicated with the Government’s report, on 4 September 2017, as well as the Government’s reply thereto.

Articles 2 and 7 of the Convention. Accurate information and free employment services for temporary migrant workers. In its previous comments, the Committee requested the Government to: (1) indicate the measures taken, in cooperation with countries of origin, to ensure that accurate advance information on conditions of work and living is made available to migrant workers; (2) provide information on the follow-up given to the recommendations of the report on the Ministerial Inquiry into the Aged Care Workforce; (3) clarify why the provision of free employment services is directed only to permanent migrants; and (4) indicate whether any consideration has been given to expanding all or some of those services to temporary migrants, in particular migrant workers engaged in the aged care sector. With respect to the measures taken to ensure accurate information for migrants, the Government indicates in its report that ImmigrationNZ provides a number of resources to inform migrants and their employers about living and working conditions, throughout the migration pathway, offshore to onshore. ImmigrationNZ has developed tailored workplace guides, toolkits (PowerPoint presentation, DVD in first languages, local orientation activities), and several online tools for specific migrant groups and sectors that employ a large number of migrant workers who could be vulnerable to workforce exploitation. These include international students, Pacific migrants and migrants working in the dairy farming, construction, hospitality or aged care sectors. In its observations, BusinessNZ highlights that, although there is adequate information on migration to New Zealand available both to migrants and prospective employers, the difficulty might be that knowledge of the information’s availability is lacking as well as knowledge of how to access it and suggest a more user-friendly website and more effective qualifications matching system. In its response, the Government explains that ImmigrationNZ sends welcome emails to every successful approved residence, work, and student visa holder, which contain links to useful information about working and living in New Zealand, as well as targeted emails to visa holders working in the dairy, construction and aged care sectors. The emails include links to the New Zealand NOW website (a migrant’s online guide to living, working and moving to New Zealand) that hosts easy to navigate settlement information for new migrants. NZNOW provides information and resources which support quality employment outcomes. This information is delivered in 13 languages. Concerning employment services, the Committee notes that the Government confirms that free employment services are directed only to permanent migrants as it aims to facilitate jobseekers who are residents into, or towards, independence. As regards, the follow-up given to the recommendations of the Human Rights Commission Inquiry into the Aged Care Workforce, the Committee notes that ImmigrationNZ has developed tailored workplace guides and toolkits for specific migrant groups and sectors that employ a large number of migrant workers who could be vulnerable to workforce exploitation, including aged care sectors. However, the report is silent on the recommendation that information about qualifications and registration requirements for aged care worker is made available in countries of origin. The Committee asks the Government to provide information on the measures taken to ensure that migrants are aware before departure of the existence of this wealth of information and tools and able to access it. The Committee also requests the Government to indicate any follow-up given the Human Rights Commission recommendation about ensuring that information about qualifications and registration requirements for aged care workers is available in countries of origin.

Article 3. Misleading information on immigration. Previously, the Committee requested the Government to provide information on the measures taken, in cooperation with the social partners and other relevant stakeholders where appropriate, to prevent and combat prejudices and stereotyping regarding immigrants in an effective manner, and to provide detailed information on the results achieved. The Government indicates that, in addition to the publication of a number of resources on the subject, the Human Rights Commission of New Zealand is leading a social media campaign, Tackling Casual Racism, aimed at building New Zealanders’ understanding and acceptance of New Zealand’s rapidly increasing diversity and creating a culture against racist and discriminatory attitudes and behaviours. The campaign supports the Inclusion outcome of the New Zealand Migrant Settlement and Integration Strategy. The campaign began in 2016 with #ThatsUs, which invited Kiwis to share their personal stories about racism, intolerance and hatred, as well as their hopes for the future of New Zealand. In June 2017, phase two of the campaign, Give Nothing to Racism, was launched. The campaign publicly challenges racist attitudes, statements and actions as no longer acceptable by the majority of New Zealanders and starts a conversation about what sort of country New Zealanders want to be and reached out to 4,237,417 New Zealanders. Public engagement with the campaign exceeded all of its targets for 2016–17 in the first eight months. The Committee asks the Government to continue to provide information on the measures taken, and their impact, against misleading and false information regarding the migration process, including public awareness programmes, and any measures to cooperate with other member States in this regard.

Article 6. Equal treatment legislation. In its last comment, the Committee asked the Government to provide information disaggregated by sex on the number and type of violations detected or complaints received by the labour inspectorate; the number and nature of complaints lodged or individual grievances pursued by male and female migrant workers respectively, including RSE workers, under the Human Rights Act (1993) and the Employment Relations Act (2000); on any decisions handed down by the courts involving violations of Article 6(1)(a)(i), as well as sanctions imposed and remedies provided. Further, it had asked for information on the number of seasonal and temporary migrant workers that have been allowed to remain in New Zealand to make a formal complaint under the relevant legislation, and on any measures taken to facilitate access to complaints processes. The Committee notes that, between July 2012 and March 2017, the Labour Inspectorate completed 1,246 investigations involving migrant workers where breaches of employment standards were identified, mostly in horticulture/viticulture (202), hospitality (464), non-key sector (320) and retail (163). The Committee notes that, most of the violations reported concerns: unjustified dismissals; minimum wage, wage and holidays pay arrears; deductions from wages; unjustified disadvantage; failure to keep records; payment of premium; breach of employment agreement or to provide written employment agreement; recovery of money, and discrimination. The Committee notes that the information provided is not disaggregated by sex. In addition, it notes that, although, the Government has recognized that migrant workers may face difficulties in complaining about wages and conditions of work because of the dependency on their employer for continued stay and employment, the report is silent on the number of seasonal and temporary migrant workers that have been allowed to remain in New Zealand to make a formal complaint under the relevant legislation, or on any measures taken to facilitate access to complaints processes. In that respect, the Committee notes also the concerns of the United Nations Committee on the Elimination of Racial Discrimination (CERD) expressed in 2017, about reports that migrant workers risk being subjected to labour discrimination and exploitation, including through receipt of salaries below the minimum wage and the exploitation of international students (CERD/C/NZL/CO/21-22, 22 September 2017, paragraph 31). It further notes the concerns of the UN Committee on Economic, Social and Cultural Rights (CESCR), in its 2018 concluding observation, about the working conditions of migrant workers, which are characterized by excessive working hours and non-payment or underpayment of wages. The CESCR also expressed concerned about: (i) the significant non-compliance by employers with employment laws, including in industries that employ migrant workers; and (ii) the prevalence of workplace deaths and injuries, especially in the agriculture, forestry and construction sectors, which engage a high proportion of Māori workers (E/C.12/NZL/CO/4, 1 May 2018, paragraph 27). The Committee asks the Government to take effective measures to ensure a treatment no less favourable than that which it applies to its own nationals in respect of the matters covered by Article 6 of the Convention, such as remuneration, membership of trade unions and benefits of collective bargaining, accommodation; to raise awareness among migrant workers of existing complaint mechanisms and facilitate their access to legal assistance; and to strengthen the capacity of the labour inspectorate to monitor the conditions of work, in particular at workplaces with migrant workers. In addition, the Committee asks the Government to continue to provide information, if possible disaggregated by sex, on the number and type of violations detected or complaints received by the labour inspectorate and any decisions handed down by the courts involving violations of the Human Rights Act of 1993 and the Employment Relations Act, as well as sanctions imposed and remedies provided. In the absence of information on the number of seasonal and temporary migrant workers that have been allowed to remain in New Zealand to make a formal complaint under the relevant legislation, and on any measures taken to facilitate access to complaints processes, the Committee reiterates this request.

Equality of treatment of foreign fishing crews. In its last comment, the Committee requested the Government to provide information on the follow-up given to the recommendations of the Ministerial Inquiry to improve monitoring of and compliance by Foreign Charter Vessels (FCVs) with New Zealand employment legislation covering foreign fishing crews, and the results achieved. It also asked the Government to indicate whether members of foreign fishing crews may lodge a complaint or individual grievance under the Employment Relations Act (ERA) of 2000 or Human Rights Act (HRA) of 1993, in particular with respect to matters set out in Article 6(1)(a)(i) of the Convention. The Government states that the Fisheries (Foreign Charter Vessels and other Matters) Amendment Act 2014 came into force on 7 August 2014, as part of a range of measures following the Ministerial Inquiry into questionable safety, labour, and fishing practises on FCVs. The legislation strengthens the regulation of foreign-owned fishing vessels operating in New Zealand waters: from 1 May 2016, all FCVs have been required to be New Zealand flagged and to operate under the full New Zealand legal jurisdiction. FCV fishing in New Zealand’s Exclusive Economic Zone (EEZ) is now subject to New Zealand employment and labour law which ensure they observe and follow-up all aspects related to fisheries matters. Members of foreign fishing crews may lodge a complaint or individual grievance under the ERA or HRA, including with respect to matters set out in Article 6(1)(a)(i) of the Convention. Since May 2016, Ministry of Business, Innovation and Employment’s Labour Inspectorate has encouraged and ensured payment from two companies involved in FCVs to pay significant amounts of arrears for wages and public holidays to foreign fishing crews; and issued infringement notices for 20 companies and charging them a 1,000 New Zealand dollars (NZD) fine for failing to keep adequate wage records and contracts. The Committee takes note of this information.

Social security of seasonal workers. The Committee requested the Government to indicate whether any consideration has been given to concluding special arrangements with countries of origin to allow workers under the Recognized Seasonal Employer (RSE) scheme to maintain social security rights in their country of origin, including pension rights. The Government indicates that a 2016 evaluation of the Student Partner Program (SPP) noted that an alternative to the high cost of remitting savings from New Zealand to Pacific Island countries could be fee-free contributions to national pension funds and that it is considering ways to improve the ability of RSE workers to access pensions and reduce costs of remittances. The Committee asks the Government to provide information on the measures taken or envisaged to allow workers under the RSE scheme to maintain social security rights in their country of origin, and to keep it informed of the outcome of the reflection engaged on ways to improve RSE workers access to pensions and reduced costs of remittances.

Temporary workers. In its previous report, the Committee requested the Government to clarify whether the period spent in New Zealand before the acquisition of permanent resident status is taken into account for the purpose of assessing whether the qualifying conditions for all income support benefits available to permanent residents and citizens have been met. It also requested to provide information, disaggregated by sex and nationality, on the number of temporary migrant workers, indicating the average length of stay and the occupations and economic sectors in which they are employed. The Government indicates that time spent as a resident in New Zealand on a temporary visa is taken into account for calculating entitlement to superannuation, as long as the worker has spent ten years in total in New Zealand, including five years after the age of 50. However, eligibility for unemployment and sickness benefits is calculated on the basis of time spent in New Zealand as a citizen or resident visa holder. The Committee notes the statistics provided by the Government indicating that: (i) by 31 March 2017, there were 67,884 temporary migrant workers in the country who finished being on a work visa; by 31 March 2016, 54,796; and by 2015, 47,775 – with an average length of stay of 381 days; (ii) on average, 43 per cent of them were women and 57 per cent men; (iii) in term of occupations, the majority of them were professionals, technicians and trades workers, managers, community and personal service workers, labourers, clerical and administrative workers, machinery operators and drivers, sales workers; and (iv) the majority of them were from China, India and United Kingdom, followed by many other nationalities.