Are Working Visas Working?
By Lauren Aspoas
Migrant workers are an integral part of New Zealand’s labour force. However, despite many industries’ reliance on this class of workers, they are not protected by New Zealand’s current immigration law. The vulnerability present in all employment relationships is exacerbated with migrant workers, as their immigration status is often tied to their employer. Under this system, exploitation can thrive.
New Zealand’s Current Visa Structure
New Zealand’s current visa regime for temporary workers is through employer-assisted visas, including the essential skills visa. This structure restricts employment to “the specific occupation, for the employer and in the location specified on your visa”.[1] By tying an employee’s immigration status to one employer, the worker becomes vulnerable to exploitation. Employers can take advantage of a worker's immigration status to “secure their dependence and their acceptance of exploitative employment conditions”.[2] Simply put, migrant workers must either accept exploitative working conditions or risk losing their job, visa, and face deportation.
Moreover, with migrants' place in New Zealand being dependent on their employer, it becomes more challenging to address exploitation. Temporary workers cannot bring these concerns to their employer without the “threat of a visa being cancelled unilaterally”,[3] however official channels are also futile. Due to lack of awareness of the relevant organisations, such as the Labour Inspector, and a lack of trust in them, these paths to address exploitation are often illusory.[4] An example of this is the Immigration Amendment Act 2015. The Act introduces several migrant protection provisions, such as penalties for exploitative employers[5] and discretionary powers to protect migrants reporting exploitation.[6] However, the primary issue is not addressed; an employer tied visa traps workers in exploitative situations. Thus, it is clear, to protect migrant workers, the current visa system needs improvement.
Reform
Earlier this year, the Ministry of Business, Innovation, and Employment announced reform targeting migrant exploitation. This has come in a multi-pronged approach.
1. Accredited Employer Work Visa
When introduced in mid-2022, the Accredited Employer Work Visa will replace six current work visas. This visa is unlikely to alleviate exploitatory issues in the migrant workforce as it is still “employer led”.[7] Thus, a migrant worker’s immigration status will still be tied to their employer.
However, a positive of this new visa is that it will introduce more checks onto the employment of migrant workers. The Accredited Employer Work Visa will have three checks before an employer can hire a migrant worker, with the employer check most likely to address exploitative practices. Under this test, employers will have to establish three elements. That they are a genuinely operating business, with no recent history of regulatory non-compliance and have taken steps to minimise the risk of exploitation.[8]
Thus, while this visa does not deal with the inherent issue of migrant exploitation, it does provide more checks against it.
2. Strengthening Reporting Systems
Arguably the weakest aspect of reform is the introduction of a dedicated phone line and web form to report worker exploitation.[9] The main issue with this approach is that it ignores migrants' distrust and lack of awareness for official organisations which deal with exploitation. Thus, to be effectual, further policy development in migrant exploitation needs to focus on education and making information “accessible to all migrants”.[10]
3. Migrant Exploitation Protection Work Visa
In contrast, the new Migrant Exploitation Protection Work Visa is a significant progression in New Zealand’s immigration framework. Under this new category, exploited migrant workers will be able to leave their “job quickly while the exploitation is being investigated”.[11] This visa addresses one of the critical issues under migrant exploitation as it is “not tied to employers”.[12] Instead, under the Migrant Exploitation Protection Work Visa, a migrant worker can work anywhere in New Zealand for any employer.[13]
While promised to be “a pathway to quickly leave exploitative situations”,[14] the Migrant Exploitation Protection Work Visa is hindered by its reliance on bureaucracy. Before applying for the visa, a migrant worker needs a “report of exploitation assessed by Employment New Zealand and have been given a Report of Exploitation Assessment letter”.[15] Under the old regime, “bureaucratic delays at Immigration New Zealand” was an exacerbating factor for exploitation.[16] Some migrants reported waiting months for their documents to be processed.[17] Thus, in reality, a migrant’s ability to quickly leave exploitative circumstances under this visa is limited by the governmental administration delays.
Moreover, the visa only offers six months of protection. Thus, despite the positive step of allowing a migrant's immigration status not to be tied to an employer, this is only for a short amount of time. The reality of an exploited migrant being able to find work within six months is also questionable.
Conclusion
Ultimately, working visas should not be increasing the vulnerability of migrant workers. While there have been developments in New Zealand’s immigration framework, the main issue remains; immigration status should not be tied to an employer. The current employer-assisted visa structure exacerbates migrant exploitation; thus, further reform is crucial.
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[1] Ministry of Business, Innovation and Employment “Information about: Essential Skills Work Visa” Immigration New Zealand <www.immigration.govt.nz>.
[2] Francis Collins and Christina Stringer Temporary Migrant Worker Exploitation in New Zealand (Ministry of Business, Innovation and Employment, July 2019) at 25.
[3] At 26.
[4] At 31.
[5] Immigration Amendment Act 2015, section 88.
[6] Christina Stringer Worker Exploitation in New Zealand: A Troubling Landscape (University of Auckland, Auckland, 2016) at 55.
[7] Ministry of Business, Innovation and Employment (MBIE)“Employer leads visa application process” Immigration New Zealand <www.immigration.govt.nz>.
[8] MBIE, above n 7.
[9] “Addressing temporary migrant worker exploitation” (01 July 2021) Ministry of Business, Innovation and Employment <www.mbie.govt.nz>.
[10] Collins and Stringer, above n 2, at 67.
[11] Ministry of Business, Innovation and Employment (MBIE) “Information about: Migrant Exploitation Protection Work Visa” Immigration New Zealand <www.immigration.govt.nz>.
[12] Collins and Stringer, above n 2, at 74.
[13] MBIE, above n 11.
[14] Ministry of Business, Innovation and Employment (MBIE) “New temporary visa and reporting tools announced to combat migrant exploitation” (1 July 2021) Immigration New Zealand <www.immigration.govt.nz>.
[15] MBIE, above n 14.
[16] Collins and Stringer, above n 2, at 28.
[17] Collins and Stringer, above n 2.