Worker Protection (Migrant and Other Employees) Bill

I present a legislative statement on the Worker Protection (Migrant and Other Employees) Bill.

ASSISTANT SPEAKER (Hon Jenny Salesa): That legislative statement is published under the authority of the House and can be found on the Parliament website.

Hon PRIYANCA RADHAKRISHNAN: I move, That the Worker Protection (Migrant and Other Employees) Bill be now read a third time.

It is a privilege to present this bill for its third reading. This is a bill that represents a significant step in our work to address temporary migrant worker exploitation in New Zealand. I want to thank everyone who submitted on the bill during the select committee process, and the Education and Workforce Committee for their consideration of the bill that has strengthened it.

Protecting our migrant workers from exploitation is a priority for our Government. It’s only right that we treat people who come to our shores fairly and with dignity. The problem, though, is that not everyone does. The Worker Protection (Migrant and Other Employees) Bill strengthens our immigration and employment systems by introducing a fit for purpose offence and penalty regime to protect migrant workers in New Zealand.

Worker exploitation harms us all. Temporary migrant workers make an important contribution to Aotearoa New Zealand. The temporary migrant worker population is diverse and includes workers with a range of visa statuses, skill levels, and personal situations. At its peak in March 2020, prior to the COVID pandemic, there were an estimated 235,000 temporary migrant workers in New Zealand. As immigration continues to ramp up and we have more workers coming to New Zealand to help on the ground with our economy, it’s important that we put in place the right measures to protect them from exploitation. All too often, many of them have found themselves subject to exploitation.

Many years ago, prior to entering Parliament, I remember supporting a young man who had come to New Zealand to work. He’d been working for his employer for about 2½ years by the time I met with him. He came to me for help because he wasn’t fluent in English. He told me he worked six days a week for his employer and lived on site. When he had a day off on Sunday, he was locked in his room so that he couldn’t go to church and he couldn’t form a support network. He showed me photos. His room was just slightly bigger than a single bed, with no ventilation. He was paid in lump sums; $1,000 here and there, and then nothing for months. When I added up and averaged out what he earned, from memory, it was about $4 an hour. His employer said it would get better. It never did. I don’t know what happened to him in the end, but when I met with him, he had severe mental and physical health issues and was distraught because he could see no future for himself and no hope to bring his young wife and his child to New Zealand. This is what our Government is working to stop.

The bill delivers important commitments made following the temporary migrant worker exploitation review and builds on the success of initiatives that are already in place, like new, dedicated reporting tools to make it easier to report migrant worker exploitation, as well as the migrant exploitation protection work visa, which supports migrants to leave exploitative situations quickly and remain in New Zealand lawfully. The changes were accompanied by $50 million in funding from 2020 to 2024 to ensure that agencies are resourced to respond to reports of exploitation and to take action. These initiatives have seen a significant uptake since their launch and they are supporting migrants to report and leave exploitative workplace situations. Alongside this is a successful education campaign to educate workers of their rights and employers of their obligations.

This bill creates a more graduated penalty regime that will allow immigration officers to address low level non-compliant employer behaviour that is linked to migrant exploitation. Currently, immigration officers don’t have effective mechanisms, outside of criminal prosecution, to address such low-level non-compliant behaviour. Criminal prosecution is a time consuming, expensive, and inefficient response for lower level offences, and this undermines the effectiveness of immigration and employment law, which places migrant workers at risk of more serious exploitation.

Introducing infringement offences will ensure low-level offending, like refusing to provide employment documentation, can be dealt with before it becomes more serious. The bill establishes a document production power to allow immigration officers to verify employers are complying with their obligations to supported migrant workers. Once the bill commences, immigration officers will be able to request employment documents from employers about migrant workers whose visas they have supported. The document production power means they can be proactive checks to verify employers are complying with their obligations. We know migrant worker exploitation is under-reported, with many migrant workers reluctant to report. We need to be proactive.

Employers are already required by law to hold the wage, time, and remuneration documents that could be requested under this new power. These records would allow immigration officers to assess, for example, whether a migrant worker’s being paid the salary stated in the employer-supported visa application. This power can only be used in limited and clearly defined situations. Immigration officers must be designated and authorised to use the power, and be issued a warrant of designation by the chief executive of the Ministry of Business, Innovation and Employment (MBIE).

Care has also been taken to ensure the powers focus specifically on the compliance of employers of supported migrant workers so that any other migrants and overstayers are not inadvertently caught up in the exercise of the document production power. The bill will also allow MBIE to publish certain information about employers who’ve committed immigration offences. Currently, employers who breach their obligations under the Employment Relations Act are published on a stand-down list. This bill will allow immigration offending to also be made public and ensure that the names of employers who breach their obligations under the Immigration Act are readily available to us all.

The publication of immigration offending is a crucial tool to allow both prospective and current migrant workers to know if an employer is compliant with New Zealand’s immigration law. The bill will require employers to respond to a request for information from either labour inspectors or immigration officers within 10 working days. Currently, there is no specified time frame for employers to comply with requests for information from the labour inspectorate or from immigration officers, and that can cause delays to investigations when employers stall or fail to provide documents in a reasonable time frame. While some delays may not be preventable, less scrupulous employers can take advantage of the fact that there is no time limit—to create records retrospectively or to meet their legal obligations. Employers who fail to meet the deadline could be liable for an infringement fee and have information about this offence made public, affecting their ability to hire migrants in the future.

This bill will also amend the Companies Act to allow the courts to disqualify people who are convicted of migrant exploitation or people trafficking from managing or directing a company. This change will prevent people who have used company structures to exploit people from being able to do so again in the future. It is only appropriate that we do not allow people who commit these offences to continue managing companies and employing potentially vulnerable people.

No one stand-alone action will address migrant exploitation entirely, but with a suite of measures, including education, awareness raising, the provision of reporting tools for migrant workers, and these new powers and offences, we can prevent exploitation from occurring. We can protect those migrant workers, who are subjected to exploitation, by providing the tools that enable them to leave those exploitative situations. And we can take enforcement action to deal with employers who do not comply with their legal obligations.

This bill contributes to the goal of protecting migrant workers from exploitation. It is a bill that I think we should all be proud of and I commend it to the House.

The question is that the motion be agreed to.

Thank you, Madam Speaker. Again, for a second time today, we have heard warm, soothing words from the Minister who’s just resumed her seat that don’t actually address the issue at hand. It’s so disappointing because for people who are watching at home or may be listening, we’re discussing the third reading, the final parliamentary legislative stage of the Worker Protection (Migrant and Other Employees) Bill. Now, the name suggests action. It suggests that repairs and process and activity is going to occur. And what we find when we read the detail of the legislation is that, actually, again, it is just a minor tweaking, tinkering piece of legislation that actually does very little and, arguably, potentially will make matters worse for the vast majority of good employers who actually do want to comply with the law, comply with the rules around migrant employees, and do the right thing. There’s no mistake that, actually, New Zealand, of course, does have a problem with migrant exploitation, and migrant exploitation has absolutely no place at all within the New Zealand employment arena.

But, that said, rules and regulations have to be clear. They have to be understandable, they have to be effective, and they have to actually do what they are intended to do. So this piece of legislation just tinkers around the edge and it doesn’t really address the primary issue. It has the potential to go after some very low level offending. Potentially, some of that low level offending will be absolutely unintentional. It will not be because of an intended attempt to be in breach of the law or the rules around migrant employment, but it will be because the employer actually acting in good faith doesn’t understand what the rules and the legislation actually already says.

So, what are the main provisions of this piece of legislation? Well, they cause concern, and I’ll come to that a little bit further on in my address. But the main provisions are about empowering immigration desk officers—now, this is important; desk officers—to request employment documents to ensure companies who hire migrants are complying with the law. So this is not a front-line official representing the Government in the State, with all its powers and authority, physically visiting an employer or a place of work. This is about somebody sitting in a cubicle in a Government department office, probably in Wellington or somewhere else, literally randomly doing a desktop investigation and analysis and then demanding—demanding—of an employer for no necessarily good cause, but no reasonable cause. And I’ll come to that, too, in a minute—potentially a fishing exercise. Now, as I say, that has the potential to catch some fish, but they’re not going to be the main perpetrators. They’re not going to be the organisations, the people, or the businesses that are really involved in major and serious migrant exploitation.

So it creates, this legislation, a new range of infringement offences. And, at the committee of the whole House, I can remember raising some questions with the Minister and with her officials about the effectiveness and the validity and the efficacy of an infringement regime. Most of those questions remained utterly unanswered in a way that provided any meaningful insight into the effectiveness of this legislation.

So one of the major concerns we have on this side of the House with this piece of legislation is about the ability for the immigration desk investigating officer to—there’s no requirement for them to have reasonable cause before they start asking for information and requesting documents from employers. Now, there’s a very basic principle, I guess, now that underpins so much of our law—that there must be reasonable cause. For those that have studied law or legal practitioners, they will understand the concept of reasonable cause, and, without that reasonable cause, there is an enormous potential for administrative abuse of the rules and the regulations, because there’s no mechanism in this piece of legislation that explains how the desk officer is going to decide who gets a request for documentation and who doesn’t. It’s going to be very random. It’s going to be a fishing exercise. There won’t necessarily be anything other than, I don’t know, just an “I just didn’t like the name of that company.” or “I got out of bed on the wrong side this morning.” or something like that. There’s no basis upon which the investigation will be based.

Now, that’s fundamentally, I think, a poor piece of process. It runs contrary to the very foundations of our legal system, and I think it’s dangerous. But what’s worse is that once a desktop investigation has been initiated by somebody sitting in an office cubicle, probably somewhere in Wellington or Auckland, there’s no right of appeal or ability for the employer to actually go back and say, “Well, why have you done that?” You know, “What’s the story?” Again, basic principles of our legal system are not being adhered to in this piece of legislation. On the face of it, it seems relatively sensible, but when you delve into the details, there are some very big issues here that relate to the role of the State, the role of public servants, and the role of what they can and can’t do. Yes, we have a problem with migrant exploitation—nobody denies that—but shouldn’t we be, as a Parliament and as a legislature, a little bit more nimble than simply going after organisations that may have made an honest mistake? I want to know, where are the people who are very massively exploiting migrants? And there are a number of them.

What was interesting was that in 2020, Kantar did some research for this very Government, and that review showed that, in fact, most employers want to do the right thing. I think that you probably didn’t need any research to find that out, but the research confirmed that, because most employers are good employers—most employers do want to do the right thing. But the research found that not only do they want to do the right thing, but they struggle to simply understand immigration law, which has been the subject of multiple changes, multiple different interpretations over a number of years. Now, that’s occurred under Governments of whichever stripe, but the fact is that in the area of immigration and employment of migrants, the law has been very much a moving feast over a long period of time. And it’s little wonder that some employers, notwithstanding that they want to do the right thing, may make an honest mistake and may get it wrong.

So should they be then penalised by a random process of a desktop investigation and an infringement regime that provides no need for reasonable cause and then no appeal rights? I think this is fundamentally wrong and it leads me and my National Party colleagues to have cause to oppose this legislation, not because we don’t think that migrant exploitation is something that should not be pursued vigorously in our legislation and our regulations—of course it should be—but this piece of legislation just tinkers around the edge, and it’s become a hallmark of the current Labour Government that they talk a big game; provide warm, soothing words; but actually do very little. Again, it’s another example of non-delivery, not matching the expectation that the piece of legislation, the name on the tin, has; it just doesn’t do the job.

But worse than that, not only does it not do the job but it creates some real questions about fundamental basics of our legal system, the ability to have reasonable cause before an investigation is opened, and then a lack of appeal rights. These are issues that caused me and my colleagues a high level of concern, and that’s why we are opposing this piece of legislation at its third reading.

Thank you, Madam Speaker. It’s a pleasure to take a call on the Worker Protection (Migrant and Other Employees) Bill. The Hon Scott Simpson said that migrant exploitation is widespread. It exists, but when it comes to solutions, rather than opposing the solution that we’re providing, he’s not proposing any solutions. So you can’t say that we do have a problem and then, at the same time, reject the proposed solution. You can’t have it both ways.

Temporary migrant workers make an important contribution to New Zealand. It’s a critical workforce that contributes a lot to our country. At its peak in March 2020, prior to the onset of COVID-19, there were an estimated 235,000 temporary migrant workers in New Zealand. It’s a workforce that is diverse and includes workers with a range of visa conditions, skill levels, and personal situations. It is also a workforce that’s vulnerable and exposed to exploitation unless robust and fit for purpose legislation is in place to protect them.

Currently, we all know that we have gaps in our enforcement regimes that exist to ensure employers of migrant workers are complying with their obligations. That’s why we believe that the Worker Protection (Migrant and Other Employees) Bill implements the remaining changes from the Temporary Migrant Worker Exploitation Review. Once it’s passed, this legislation will amend the Immigration Act, the Employment Relations Act, and the Companies Act to introduce a fit for purpose offence and penalty regime to deter employers of temporary migrant workers from non-compliance with their obligations under Immigration’s employment law.

So we know that migrant exploitation is widespread and it’s ugly. It’s out there and I would like to commend the Minister for bringing this bill to the House, because we believe that this is going to be a solution and we believe that this is going to stop this widespread practice in our country. I commend it to the House.

Thank you, Madam Speaker. Looking at the clock, I think I’ll just take a very short call to give everyone time to have a decent amount of lunch. But I just want to reflect on the comments that my learned colleague Scott Simpson has said from our side of the House. There is absolutely no doubt that everyone in this House is opposed to the very idea of migrant exploitation, or exploitation of any sort. The Minister is correct: migrants are often the most vulnerable employees, and they actually come under tremendous pressure, but as the Hon Scott Simpson has actually laid out, this particular bill does not actually address the bigger issue.

I guess the biggest concern I have is that this bill removes the requirement of the desk-based officer to have reasonable grounds to do the search on any given employer and without any basis or proof that they’re actually doing any wrong. Sometimes, those things can be quite difficult to prove, right? When employees are actually being mistreated or are being abused, they can actually complain, make a complaint. If other people actually in the industry notice that, you know, they’re doing something, I mean, they can always report, and that could be the basis for an investigation, but that is not what is actually happening here. This random desk officer with no cause to question the employer is able to take on the action, which potentially looks at the issues like, if the employer employs a migrant they are not authorised to employ, how would they know with no basis? That is one of the things that I’m really concerned about.

One of the things that we talked about in earlier stages of the bill: we were talking about things like when changes happen to the hours and times that the employees are actually working. I remember working when my parents owned the business—it was a family business, and sometimes those hours shift because of things that are not of our control. For example, when a container is delivered at a different time and the workers are employed from particular hour to particular hour, start and end time can actually shift depending on when that container is actually delivered, to empty it.

We believe that this is, as my colleague has said, a fishing expedition by the Government, and we do not support this bill.

This debate is interrupted and is set down for resumption next sitting day. The House stands adjourned until 2 p.m. today.

Debate interrupted.

The House adjourned at 12.59 p.m. (Thursday)