The Worker Protection (Migrant and Other Employees) Act
The Worker Protection (Migrant and Other Employees) Act 2023 (the Act) comes into force early next year on 6 January 2024. The Act comes at the end of a raft of changes to migrant worker protections following on from the previous Government’s Temporary Migrant Worker Exploitation Review (the Review) in 2020.
The Review
The Review had three major goals to address the exploitation of temporary migrant workers, especially international students:
- Prevent the occurrence of workplace conditions that might enable temporary migrant worker exploitation;
- Protect temporary migrant workers in New Zealand and allow them to leave exploitative employment; and
- Enforce immigration and employment law to deter employer non-compliance through a
fit-for-purpose offence and penalty regime.
Initiatives spurred by the Review include the introduction of a visa to support migrants who have experienced exploitation (the Migrant Exploitation Protection Visa), a dedicated 0800 number and online form to make reporting exploitation easier and liaison support services for people who have experienced exploitation.
The changes coming into force in January 2024 will see amendments made to the Companies Act 1993, Immigration Act 2009 and Employment Relations Act 2000. These changes focus on the Review’s goals of enforcement. See below some of the notable changes the Act will introduce.
Infringement offences and notices
The Act will make it an offence under the Immigration Act 2009 where an employer:
- allows a person who is not entitled under the Act to work in the employer’s service to do that work;
- employs a person in a manner that is inconsistent with a work-related condition of that person’s visa; and/or
- fails to comply with the requirement to provide information under the Act (see below).
Conviction of an offence could result in an employer being issued with an infringement notice. An employer will be liable to an infringement fee, for each employee they have committed an offence against, of:
- $1,000 (for an employer who is an individual).
- $3,000 (for an employer that is a body corporate or other entity).
If an employer is found to have committed an offence they may be liable to a fine up to double the total amount of infringement fees.
The Act will also empower Immigration Officers and Labour Inspectors to request access to documents to ensure employers are complying with their obligations regarding migrant workers. Immigration Officers and Labour Inspectors will be able to require production of wages and time records, leave records and other information relating to remuneration or employment conditions. The Act requires the requested information to be compiled and provided within 10 working days. Failure to comply with this request could result in an infringement notice being issued against the employer and an infringement fee of $1,000. The employer may be fined up to $2,000 if they are found to have not complied with this request.
Publication of employers convicted of immigration offences
The Act will introduce amendments to the Immigration Act 2009 permitting the chief executive of the Ministry of Business, Innovation and Employment (MBIE) to publish the names of employers who have been convicted of immigration offences or issued infringement notices in respect of offences against the Act. The amendment allows details of the offence and restrictions imposed to be published. Employers’ names will be published to a ‘stand-down list’ that prohibits the named employers from supporting visa applications for migrant workers for the duration of their stand-down period.
Disqualification from managing or directing a company
The Act will provide further protections to migrant workers through an amendment to s 383 of the Companies Act 1993. This will empower a court to disqualify a person from being a director, promoter or manager of a company if they have been convicted of migrant exploitation or human trafficking.
Why is this legislation significant?
The Cabinet Paper[1] which initiated the Review identified various consequences of exploitative work practices that negatively impact other businesses and the whole economy. It identified migrant exploitation as having various adverse consequences, including for legally compliant market competitors.[2] Migrant exploitation has the potential to damage New Zealand’s community values of fairness and compliance with the law.[3]
It is important as a nation we ensure migrants who come to Aotearoa to work are protected and safe. These legislative changes will introduce more safeguards to ensure migrant workers are protected. Exploitative practices will often leave workers with a diminished sense of dignity and self-worth which can lead to negative impacts on physical and mental health and wellbeing.
Employers need to ensure they are aware of their obligations when employing workers, especially migrant workers due to these new legislative powers.
Assistance
If you want advice on your obligations when employing migrant workers or if you have concerns with how you are being treated as a migrant worker, do not hesitate to contact the Dyhrberg Drayton Employment Law team for assistance.
Lachlan Spence, Law Clerk and Annah Casey-Solly, Associate
[1] Cabinet paper “Addressing Temporary Migrant Worker Exploitation” (undated).
[2] At [13 a].
[3] At [13 d].
