Worker Protection (Migrant and Other Employees) Bill

Members, when we last considered the Worker Protection (Migrant and Other Employees) Bill, we had completed call No. 8. We come to call No. 9, which is a split call. I call the Hon Scott Simpson.

Mr Speaker, thank you very much. As indicated, this is part of an interrupted debate, and it’s been well interrupted. I think this is about the third time that this House has tried to complete the second reading of this Worker Protection (Migrant and Other Employees) Bill. I didn’t sit on the Education and Workforce Committee, which considered the bill, but I think it’s important to remind people who may be listening to this debate that has been interrupted and who may have missed some of the earlier contributions from other members that this piece of legislation is a response by the current Labour Government to a review that they undertook, back in 2020, looking at migrant exploitation.

Migrant exploitation is never acceptable, and it’s a matter that I think would be agreed by every member of the House—that the problems that confront migrant exploitation are real, they are present, and they are serious—but this is a piece of legislation that attempts to bring a desktop solution to this very real and serious problem. At first reading, we in the National Party supported the legislation. We did so, so that people and members of the public—stakeholders, immigration consultants, and businesses—could participate in a select committee process, but we had reservations at the time the bill was introduced, and I am sorry to say that our concerns at the first reading have not been sufficiently considered to give us cause to continue supporting this bill at second reading. We don’t think that the responses that the current Labour Government have brought to this Chamber by way of this bill are appropriate, and we think that they are actually going to create more problems than they solve. As I said, the Government is attempting, in this piece of legislation, to, effectively, bring a desktop solution to this problem.

I want to just go through the headline points of what this piece of legislation is seeking to do. Firstly, it’s going to empower desk-based officers to request employment documents to ensure that companies who hire migrants are complying with the law. There’s the first problem. The first problem is that this will be a process of infringements and requests that will be originated and given effect to by people sitting at a desk, in front of a screen, a long way from the actual businesses that are concerned. It won’t be a matter of engaging with those businesses in any meaningful way; it’ll simply be a request—probably a digital request, through an email or another digital communication—insisting that they comply by providing forms, documents, papers, and materials to the immigration personnel. The second part of this piece of legislation will allow labour inspectors and immigration officers to issue fines for non-compliance with those requests that are made of businesses by the desk-bound official. Then, thirdly, this legislation establishes two other infringement offences under the Immigration Act and Employment Relations Act.

If this was a Government that was serious about cracking down on migrant exploitation, surely the better thing to do would be to go after the perpetrators of migrant exploitation, go after the serious offenders, because in many cases—many cases—businesses just want to do the right thing. Immigration and migration law is complicated, it’s detailed, and it requires a careful attention to form filling and to getting the right documents, and all those sorts of things. Most businesses actually do want to comply. The fact that some of them get it wrong is not necessarily any indication of a complicit or illegal migrant exploitation; it is simply that the area is confusing and it’s complicated. So to approach this area with infringement fines and then no appeal rights—absolute discretion by desktop officials working in a cubical somewhere in Wellington, probably—we think is inappropriate, and so therefore we are not going to support this legislation at the second reading. We think it’s the wrong approach being taken by the Government to a very serious problem.

Angie Warren-Clark—five minutes.

[In New Zealand Sign Language: “Thank you, Mr Speaker.”] I got it right that time. Look, it comes as a great surprise—nevertheless, a great pleasure—to be speaking today on the Worker Protection (Migrant and Other Employees) Bill. It is a bill that I have not sat in on in select committee; nevertheless, it is an extremely important bill for the community that I currently live in, the Bay of Plenty. As we will all know, the Bay of Plenty has many migrant workers, particularly during the kiwifruit and harvesting seasons that we have operating in our community. So it is a pleasure to stand and speak to this bill.

I understand that the bill amends the Immigration Act, the Employment Relations Act, and the Companies Act, in order to better support our fit for purpose delivery of services and also an offence and penalty regime.

I think it’s really important that we acknowledge that, sure, people sitting at a desk, requesting documentation may seem to be a somewhat weak suggestion from the Opposition. We can understand what they’re saying. Nevertheless, what I know is the records that these employers are required to provide enforce and force people to actually go about taking care of their workers.

We know that when a worker is paid cash under the table, they’re exploited. They’re often not paid what they’re entitled to. We see that in our community of the Bay of Plenty quite often. Therefore, I think it is actually quite a powerful tool to be able to require employers to furnish these records. It also gives the opportunity, if they don’t do so within 10 days, that there is a penalty applied. Further, it also gives that if an employer continues to do this, they also may be unable to be an employer under these regimes.

So, as I say, this is not a bill that I have sat in on. It is an important bill to ensure that the workers that come to this country are protected. I therefore commend it to the House.

Noa’ia, Mr Speaker. I rise to make a short contribution to the second reading of this bill, the Worker Protection (Migrant and other Employees) Bill.

I do want to thank the Education and Workforce Committee for this bill, as I have recently joined the select committee. The bill sets out a number of recommendations, and the policy intent of this bill is to allow, regulate, create, update, and enable the required conditions as listed. It is really important, because migrant workers, who we need in this country, have helped us, particularly pre- and during COVID, and also post-COVID, and employers are getting these people as workforce. The bill sets out to improve the compliance and enforcement legislation, because it is required to deter employers that they need to follow the law in its practicability and workability.

Just quickly, in my previous role, I was an immigration specialist through an MP’s and Minister’s office. It was really important that applicants—members of our community—would find themselves in really difficult situations when an employer set out to employ them under working conditions but did not carry that out as they had said, and exploited these workers.

Applicants who relied on a respectful and fair decision-making—their personal situation was sometimes really contested, and so communities would approach MPs’ offices for confidential and important advice. The migrant workers would share confidential information and were quite fearful. Being in New Zealand, they wanted to be obligated to do the right thing, because they came here and they were invited here by other family members. So, on that, if our employers are going to employ migrant workers—who add so much value to our society—that is what is required. So there being a problem in our society, it needs to be rectified. On that note, I commend this bill to the House. Thank you.

Thank you, Mr Speaker. I rise to speak on the Worker Protection (Migrant and Other Employees) Bill in this second reading.

As we have noted already, National tentatively supported this bill at its first reading, thinking that, in the select committee process, some of the issues that we saw in this bill could be sorted out. Sadly, the Education and Workforce Committee, which I sit on, did take this bill but we were not able to get the changes that we felt would have improved it enormously. So I now speak in opposition to this bill.

The main provision, as we’ve heard, is that it empowers immigration desk officers to request employment documents. It feels much more like a cost-cutting exercise and an ability to go after low-hanging fruit, rather than a serious attempt to prevent serious exploitation. It also establishes two other new infringement offences. Migrant exploitation has absolutely no place in New Zealand, and I saw how devastating this could be with international students and graduates who had post-study work visas. But this bill will not have the intended impact.

No migrants coming into New Zealand should ever be exploited, and we absolutely agree that those migrants deserve the same rights and protections as anyone else working here. However, this bill is only going after low-level breaches of law that, for the most part, are because of misunderstandings of what is very complicated law and very complicated regulations. It does not go after the bigger and more serious perpetrators of migrant exploitation, and that is where our attention and our resources should be focused.

I have a constant stream of constituents coming into my office, both workers regarding their visas and employers trying to navigate the immigration regulations. They are complicated, they are complex, and they are difficult for both employers and workers to comply with. In most instances, employers want to do the right thing but they simply struggle to understand the complexity of immigration law. And it changes so frequently that they struggle to keep up. Most small employers do not have a big HR department to keep up with changes, and I saw—as an accredited employer with the Southern Institute of Technology and an HR department—how difficult it was even then to keep up with the changes.

This needs to be addressed through education, not through slamming employers that make mistakes. The real offending will continue to go ahead because of a lack of resources at Immigration New Zealand’s compliance department and the labour inspectorate. We know that just 10 percent—10 percent—of complaints for migrant exploitation received by the labour inspectorate in the past year were investigated. So in 2021 and 2022, 1,018 complaints—allegations—of migrant exploitation were received, and just 108 of those were investigated. And the inaction will embolden these serious offenders. They will know that they are not going to get investigated; they will know that they can continue on with these exploitative practices.

Serious issues of migrant exploitation need to be dealt with through investigations. They can’t simply be dealt with through immigration officers requesting documents; they need inspectors on the ground investigating.

In the select committee process, we had 44 written submissions, and I want to refer to the submissions by two serious business growers, Zespri in New Zealand—kiwifruit growers—who said, “We are concerned about section 275A and clause 17 of the bill”, which give immigration officers and labour inspectors the ability to require the provisions of employee information from employers without reasonable cause; they can go on fishing exercises.

So 10 percent of complaints get investigated, but they will now be able to go instead on fishing exercises. This is absolutely contrary to the principles of natural justice. Reasonable cause could have, and should have, been included into this bill at the select committee process. It was not.

BusinessNZ, another submitter, said, “Most accredited employers are not intending to exploit their migrant employees. With a dearth of New Zealanders to fill vacant jobs, these workers are just too valuable to them.” Again, the select committee could have taken notice of this and could have shifted the focus from desktop requirements of employers’ documentation to investigation. The focus needed to change to investigations.

So, look, the Minister needs to be more concerned about ensuring that there are resources to be able to investigate serious exploitation, rather than trying to trip up and make it more difficult for businesses and employers that are trying to do the right thing. Immigration officers must have reasonable cause before they start requesting documents from businesses. They are just going to tie up businesses in trying to get documentation that may not have any bearing at all on an investigation, should an investigation go ahead.

There is no ability for the employer to appeal infringements. There is no ability for businesses to take appeals where they believe that the immigration officers have been wrong in what they have requested. This bill removes the defence for offences from businesses that took reasonable precautions and exercised due diligence to ascertain whether a person was entitled to do the work. Employers will simply get caught out sometimes—that they did not know someone was not entitled to do that work—and there is no ability for an employer to appeal when that has been the situation.

Immigration New Zealand needs to be investigating cases of serious exploitation, and 10 percent of complaints being investigated is not good enough. They also need to be doing things like speeding up variation of conditions to ensure that migrants can have changes made to their visas when it is a simple and sensible thing to be giving flexibility to both employers and employees where there have been changes that require those variations to the conditions of their visas. But instead, they are done so slowly that it puts employers in a situation where they may be in breach and get pinged by this sort of desktop exercise.

The Government undertook a review of migrant exploitation in 2020, and this bill is the result of that review. So the Government knows that there is exploitation occurring, but they have simply gone after what is low-hanging fruit in a way that is going to be cost-saving and not going to address the issues. We oppose it.

I’ve had a week of actually reflecting on some of the experience I had as an employment lawyer, and in this particular space I think I can add value. One of the early cases that I had that really shocked me was some workers at a restaurant called Oh! Calcutta. That is not a very small chain, but, actually, I would say it was a problem that we had in Indian restaurants that was quite widespread. It wasn’t helped by the fact that so many of those businesses were fledgling businesses and they were small, so it was very hard for an inspector to get around them all. But it was also important that they had rigour around them, that they were expected to keep their wage and time records in order, etc.

What these immigration powers and these powers will do in terms of these desktop people is they will allow people to go and have a look at the records of such restaurants. And I just want to explain what it was like for those workers. I’ll just explain what happened. What happened was that those workers were working 92½ hours a week. They were working lunch and dinner and they were also living upstairs. The employer had their passports—

Erica Stanford: That’s why you need someone to go in.

HELEN WHITE: —and absolutely, Erica Stanford, people can go in, but we need this to be systemic across the board. We do not turn a blind eye to any business. This is going to allow people to shine a light on what’s going on, and it’s going to set an expectation. We have had an experience of an economy that’s been built on exploitation of overseas workers, and we have to change that systemically.

This is a tool in the tool box. It won’t solve everything, but it’s a damn good start. And those workers who were working 92½ hours a week and were being paid $350, even though they had a contract which said that they were to be paid $450 and were not paid overtime because there was no agreement—those workers will be better off and that is a good thing. And there won’t be just one worker; there’ll be a lot of workers in that. We are resetting the standard here. We are saying it is not acceptable. We are going to have a more nuanced system. We are going to have many tools in the tool box. This bill is good because it is providing some of those tools. I commend the bill to the House.