Mai Chen: Anti-exploitation law will weed out bad apples

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Michael Woodhouse has signed a policy change allowing migrants who report exploitation to stay in the country while they apply for a new visa. Photo / Glenn Taylor
Michael Woodhouse has signed a policy change allowing migrants who report exploitation to stay in the country while they apply for a new visa. Photo / Glenn Taylor

We should all welcome the Government's announcement it will expand the protections for migrants by introducing a new offence of exploitation of migrants lawfully allowed to work in New Zealand, and with tough penalties. It would protect New Zealand's international human rights reputation, prevent unfair advantage over law abiding competitors, and underline a sovereign state's right to choose who can live and work within its borders.

These changes don't necessarily signal that we have a huge problem on our hands. The majority of businesses employing migrants are law abiding. So it is right that businesses that exploit lawful migrants on study or visitor visas, for example, be punished the same way as businesses that exploit illegal workers - by imprisonment for up to seven years and a fine not exceeding $100,000 or both. And it is fair that an employer who has only gained residency within the past 10 years and who exploits their fellow migrants should face deportation.

Employers are already subject to obligations under the Minimum Wage Act to pay the minimum wage, and under the Wages Protection Act not to make deductions from wages without the worker's agreement or as otherwise permitted. And it is already illegal under the Immigration Act for an employer to exploit somebody who is not entitled to work in New Zealand, for example by failing to pay them, or by taking their passport so they can't leave. The new offence and penalties that the minister will introduce in August to the Immigration Act will stiffen the penalties already in immigration and employment legislation and heighten the risk for exploitative employers.

So why do some migrant employers do this to other migrants and why don't the latter blow the whistle?

There are bad apples in every barrel, whatever the nationality. But in my experience of legally advising migrants, coming to a new country means new rules. Some come from countries with different approaches to the rule of law and human rights. Migrant employees may think laws won't be enforced, as in their home countries. They may think our authorities are corrupt and may not help them.

That is why education and resourcing are so important: so that migrants know what their rights are and have confidence that their employer will be punished for breaching those rights. That means that the law needs to be enforced and violators vigorously prosecuted.

Another issue is that migrants who have been working illegally do not report their exploitation for fear they will be deported. Immigration Minister Michael Woodhouse's announcement that he has signed a policy change at Immigration New Zealand so "in cases of serious workplace exploitation, migrants who come forward will be allowed to remain in New Zealand while they apply for a new visa" is a sensible step forward in encouraging the reporting of lawbreakers.

The importance of New Zealand's international human rights record on labour matters is underscored by another law reform the Government has in Parliament. The Fisheries (Foreign Charter Vessels and Other Matters) Amendment Bill requires foreign-owned fishing vessels to be registered in New Zealand, thus making it easier to enforce labour law requirements. The chief executive of the Ministry of Fisheries will be able to consider employment and safety risks when deciding whether a ship should be registered, and observers will have greater powers to investigate ship safety and employment matters.

Currently, foreign charter vessels must comply with some New Zealand laws in New Zealand waters, such as the Minimum Wage and Wages Protection Acts, but other legislation such as the Health and Safety in Employment Act does not apply. As the bill's explanatory note says: "These changes are necessary to protect the human rights of crews and ensure that NZ's reputation as a responsible and sustainable fishing nation is maintained."

The Swain Ministerial Inquiry which recommended the reforms also said: "New Zealand has built a proud international reputation for high-quality, safe and sustainably produced food. This is a major competitive advantage in a world where food production is coming under increasing consumer scrutiny - New Zealand has always played a leadership role in the field of human rights and takes seriously its responsibility to protect vulnerable people and to ensure safe workplaces and fair employment practices".

The vast majority of migrants work hard and obey the law. Moves to ensure that those who break the rules face strong sanctions for their actions are a key part of New Zealand's commitment to the rule of law and the protection of human rights.

Mai Chen is a partner in Chen Palmer lawyers and an adjunct professor at the University of Auckland Business School.

- NZ Herald

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