Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Migration for Employment Convention (Revised), 1949 (No. 97) - New Zealand (Ratification: 1950)

The Committee notes the comments by the New Zealand Council of Trade Unions (NZCTU) and of Business New Zealand (Business NZ) attached to the Government’s report, as well as the Government’s reply thereto.

1. Articles 4 and 5 of the Convention. Measures to facilitate reception of migrants and adequate medical attention. The Committee notes the comments made by the NZCTU that greater health support and resources for refugees are needed to enable certain migrants, especially refugees, to recover substantially from the effect of previous injuries, illness and trauma before being engaged in job search activities. The NZCTU also draws attention to the high number of women refugees suffering from post-traumatic stress disorder as well as physical injuries and illness as a result of previous ill-treatment. The NZCTU further maintains that the New Zealand Settlement Strategy mainly focuses on migrants from Asia and recent refugees but does not mention those coming from Africa. The Committee notes the Government’s reply that government-funded assistance, provided directly or purchased from service providers, caters for the needs of all migrants and refugees, including those from Africa, provided they have permanent residency. The New Zealand Settlement Strategy recognizes that certain migrants and refugees may require additional assistance, especially in the early stages of settlement. The Committee recalls that Article 5(b) of the Convention aims to ensure that migrant workers and members of their families enjoy adequate medical attention and that services are available for them to consult should they so require. Paragraph 12 of the Migration for Employment Recommendation (Revised), 1949 (No. 86), also provides that steps should be taken where necessary to ensure that special facilities are made available during the initial period of settlement in the country of immigration. The Committee asks the Government: (1) to provide further details on the type of additional assistance that may be given to certain migrants and refugees, in particular women and migrants coming from Africa; and (2) to indicate whether any measures are being taken or envisaged to provide special services upon arrival and during the initial settlement stage to enable migrants, especially women refugees, to recover from previous illness and trauma due to ill-treatment before engaging in job search activities.

2. Article 6(1)(b). Equality of treatment with respect to social security. The Committee notes that the NZCTU, while welcoming the Government’s new Recognized Seasonal Employment (RSE) Scheme, raises some concerns that there is no obligation for employers to provide medical insurance for their foreign workers under this scheme. Greater clarity is therefore needed with respect to the responsibility for costs of medical treatment for participants in the RSE Scheme, and for temporary migrant workers in general. The Committee notes that the RSE Scheme was introduced in April 2007 to meet the labour needs of the horticulture and viticulture industries and permits workers to enter New Zealand for a seven‑month work period in any 11-month period. However, apart from the costs arising from accidents and injuries under the universal Accident Compensation Scheme, the RSE Scheme does not appear to provide any social security benefits. Seasonal workers, according to the NZCTU, also appear to pay income tax at the same level as permanent residents, but do not have equal access to full public health services due to the residency requirement of two years for entitlement to access to publicly funded health services. While they may have the opportunity to return to New Zealand the next season for a seven-month period of work, they nevertheless seem to be excluded forever from accessing social security benefits and thus would not be treated on an equal footing with nationals or permanent residents with respect to social security. The Committee recalls that Article 6(1)(b)(ii) of the Convention allows certain limitations to the principle of equal treatment such as special arrangements concerning benefits payable wholly out of public funds. However, these arrangements cannot be interpreted as providing a legal basis for permitting the automatic exclusion of a category of migrant workers from qualifying from social security benefits (see paragraph 431 of the General Survey of 1999 on migrant workers). The main purpose of the exceptions permitted under the Convention is to prevent possible abuses and to safeguard the financial balance of non-contributory schemes, rather than depriving certain categories of migrant workers, i.e. workers under the RSE Scheme, from rights derived from the Convention. The Committee notes that the RSE Scheme will be reviewed by the end of 2007 and that the Government may propose that medical insurance cover be made compulsory if significant health risks are indicated. The Committee asks the Government on the occasion of the revision of the RSE Scheme to reflect on possible special arrangements allowing seasonal workers to access on an equal footing with nationals and permanent residents the benefits ensured by Article 6(1)(b) of the Convention, and to report on the progress made.

3. Further to the above, the Committee recalls its previous comments in which it noted that section 74A(1) of the Social Security Act, No. 136 of 1964, as amended, might exclude some temporary permit holders from accessing any cash benefits, including emergency benefits. The Committee notes the NZCTU’s comments that despite paying income taxes, temporary workers do not have access to full public health services. They generally have access to accident and emergency care but may be subsequently charged for these services. The Committee notes the Government’s explanations that all workers who have permits enabling them to be in New Zealand for two years or more are entitled to access publicly funded health-care services. The ordinary residency requirement of two years before becoming eligible for cash benefits, other than the emergency benefit, applies to all prospective beneficiaries and includes, for example, New Zealand citizens by descent, who must have lived, at some stage, in New Zealand for two years to be eligible to access standard income support. The Government further states that these types of social security benefits are paid entirely from public funds and the acquisition of the right to such benefits is entirely dependent on a permanent commitment to New Zealand. However, anyone who is acutely unwell must be treated, regardless of immigration status, eligibility for publicly funded health care or ability to pay. The Government confirms, however, that migrant workers who have chosen not to take out medical insurance to cover for sickness would be charged for the health services they use. The Committee recalls its comments under paragraph 2 of this observation as well as the fact that the imposition of residency requirements is not contrary to the Convention, in so far as this condition is applicable also to nationals of the State, which does not appear to be the case. The Committee considers that the qualifying period of two years for migrant temporary workers to access social security benefits may put them in a less favourable position as compared to nationals and permanent residents. It, therefore, asks the Government to provide explanations as to the reasons for fixing a two-year qualifying period for entitlement to access to publicly funded health-care services.

4. Article 6(1)(a)(i). Equality of treatment with respect to conditions of work. The Committee notes that the NZCTU raises concerns regarding migrant workers who had apparently paid large sums to recruitment agencies in Thailand before coming to New Zealand for horticulture work and who complained about being required to work 60–70 hours per week without days off and being paid the minimum wage. The NZCTU also refers to below minimum wages being paid to migrant workers in horticulture and viticulture, in food service, and other services industries. The workers seldom make a formal complaint and their legal status is not known but it is suspected that some work illegally or on a limited work permit which could be revoked, a type of situation which makes it more difficult for the workers to seek information or to complain about exploitation. The Committee notes the Government’s reply that breaches of employment legislation and regulations, including payment of wages which are below the minimum wage, are actively investigated; employers are liable to recovery and penalty action, irrespective of whether the employees affected are migrant workers or nationals. The Committee asks the Government to examine the situation of migrant workers in the horticulture and viticulture sectors as well as in the food and other services industries with a view to addressing possible situations of abuse with regard to working conditions and unpaid wages. Please also provide information, disaggregated by sex, on any violations detected or complaints received by the labour inspectorate and any decisions handed down by courts or other tribunals involving violations of Article 6(1)(a)(i).

5. Discriminatory attitudes of employers limiting employment options for migrants. The Committee notes that the NZCTU raises concerns regarding employers’ prejudices vis-à-vis migrants from countries with a primary language other than English as well as migrants whose appearance and name signal foreign ancestry. The NZCTU refers to surveys conducted with employment agencies showing that a foreign sounding name could reduce the likelihood of a job applicant being able to get a job interview. While government and community services are working with migrant groups to provide work experience opportunities and to enhance language skills, more work needs to be done to encourage employers to overcome their prejudices against migrant workers. The Committee, concerned that these alleged employers’ prejudices result in direct and indirect discrimination of migrant workers in employment, draws the attention of the Government to its comments on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).

The Committee is raising other points in a request addressed directly to the Government.