Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

The Committee notes the observations of 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.

Articles 2 and 7 of the Convention. Adequate and free (employment) services and information to migrant workers. The Committee notes the Government’s indication that migrant women are able to access all settlement support services through the Settlement Support New Zealand Initiative, and that 53 per cent of those accessing the services in 2010–11 were women, the majority being first clients. Under the Recognized Seasonal Employment (RSE) Scheme, “Get ready” booklets are provided to workers prior to departure including information in their own language on employment relations, workplace conditions, expectations and living in New Zealand, and contact information. The NZCTU nonetheless indicates that common complaints from migrants moving to New Zealand include inaccurate information on availability of jobs and insufficient advance information on low wages and high costs of living including housing. The NZCTU also points out that access to some services like job search assistance requires resident status which may be dependent on the recognition of qualifications or meeting additional criteria such as passing the International English Language Test System test in the case of nurses, which has proven to be a major barrier for migrant nurses. The Committee notes that the provision of free employment services is indeed directed to New Zealand residents and to permanent migrants, although the Government indicates that some services are rendered free of charge to temporary migrants. It notes that the Human Rights Commission’s Report of the Inquiry into the Aged Care Workforce (2012) recommends that Immigration New Zealand (INZ) ensures that information about qualifications and registration requirements is made available in countries of origin and develops best practice guidance for migrant workers in aged care. The Committee requests the Government to indicate the measures taken, in cooperation with countries of origin, to ensure that accurate advance information on conditions of work and living is made available to migrant workers, and to provide information on the follow-up given to the recommendations of the report on the Ministerial Inquiry into the Aged Care Workforce. The Committee also requests the Government to clarify why the provision of free employment services is directed only to permanent migrants and to indicate whether any consideration has been given to expanding all or some of those services to temporary migrants, in particular migrant workers in the aged care sector.

Article 3. Misleading information on immigration. The Committee notes the concerns expressed by the NZCTU that the Immigration Amendment Act No. 39 of 2013, addressing mass arrival, gives a negative message with respect to migrants and refugees and adds to the negative impression that employers may have of migrants and refugees. While noting the explanations of the Government concerning the objective of the Act, the Committee recalls that under the terms of Article 3 of the Convention, the Government is required to take appropriate steps against misleading propaganda including stereotypes of immigrant workers such as being more susceptible to crime, violence, drug abuse and diseases (see General Survey on migrant workers, 1999, paragraph 217), or regarding their educational and employment abilities. The Committee requests the Government to provide information on the measures taken, in cooperation with the social partners and other relevant stakeholders where appropriate, to prevent and combat prejudices and stereotyping regarding immigrants in an effective manner, and to provide detailed information on the results achieved.

Article 6. Equal treatment legislation. The Committee notes that the Immigration Act 2009 entered into force on 29 November 2010 and that the NZCTU raises concerns regarding the absence of provisions in the Act specifically addressing fair treatment of migrants and refugees in employment. The Government indicates however that all employees are subject to the same minimum wage and leave entitlements and protections offered by the employment-related and human rights legislation. The Committee notes that the Employment Relations Act (ERA) of 2000 prohibits discrimination against employees by their employers or representatives including on the grounds of sex, race, ethnic or national origin and religious belief, which are the same as those listed in the Human Rights Act (HRA) of 1993 and provides for an individual grievances procedure. The Committee asks the Government to provide information on the number and nature of complaints lodged or individual grievances pursued by male and female migrant workers respectively, including RSE workers, under the HRA and the ERA, in particular with respect to matters set out in Article 6(1)(a)(i) to (iii) of the Convention, and their outcome.

Article 6(1)(a)(i). Equality of treatment of foreign fishing crews. With respect to the alleged abuse of foreign crews on board foreign chartered fishing vessels referred to by the NZCTU, the Committee notes the Government’s indication that the use of Foreign Charter Vessels (FCVs) that fish in the Exclusive Economic Zone (EEZ) under Charter to New Zealand companies has raised a range of issues. These include mistreatment and underpayment of wages, which were the subject of a Report of the Ministerial Inquiry into the Use and Operation of Foreign Chartered Vessels (February 2012). The Committee notes that the Government agreed to act on six of the 15 recommendations aimed at improving compliance, monitoring and interagency cooperation through a range of practical steps within existing Government policy. The key recommendation requires all FCVs in New Zealand’s EEZ to be engaged on a “demise” charter basis where the vessel is hired separately from the crew and the crew is governed by a New Zealand employment agreement. The Code of Practice for Foreign Fishing Crew will also be strengthened in consultation with fishing companies and workers’ representatives. The Committee requests the Government to provide information on the follow-up given to the recommendations of the Ministerial Inquiry to improve monitoring of and compliance by FCVs with New Zealand employment legislation covering foreign fishing crews, and the results achieved. Please indicate whether members of foreign fishing crews may lodge a complaint or individual grievance under the ERA or HRA, in particular with respect to matters set out in Article 6(1)(a)(i) of the Convention.

Article 6(1)(b). Social security of seasonal workers. The Committee recalls that different social security arrangements apply to certain categories of temporary workers in New Zealand depending on their work visa and residence status. With respect to seasonal workers, the Committee had previously noted that the RSE Scheme did not provide for any additional social security benefits other than the costs arising from accidents and injuries. The Committee therefore welcomes the steps taken by the Government to reduce, as of 1 April 2011, the taxation rate for RSE workers and to require workers employed under RSE Instructions to have acceptable health insurance (section WH1.25 of the INZ Operational Manual). The Committee requests the Government to indicate whether any consideration has been given to concluding special arrangements with countries of origin to allow workers under the RSE Scheme to maintain social security rights in their country of origin, including pension rights.

Temporary workers. With respect to other temporary workers excluded from accessing certain cash benefits due to residential requirements (section 74AAof the Social Security Act of 1964), the Committee notes the Government’s explanation that temporary workers are only eligible for medical and cash benefits in case of employment injury. They are not eligible for cash sickness benefits and are encouraged to contract health insurance to cover their medical expenses. The Government reiterates in this context that the two-year ordinary residence requirement to benefit from entirely publicly funded social security applies to all prospective beneficiaries, including New Zealand citizens by descent who must also have lived in New Zealand for two years “at some stage” to access standard income support. However, the Government indicates that most income support benefits (in case of unemployment, sickness and invalidity) and family allowances paid through the tax system are only available to citizens and permanent residents. The Committee requests the Government to clarify whether the period spent in New Zealand before the acquisition of permanent resident status is taken into account for the purpose of assessing whether the qualifying conditions for all income support benefits available to permanent residents and citizens have been met. Please provide information, disaggregated by sex and nationality, on the number of temporary migrant workers, indicating the average length of stay and the occupations and economic sectors in which they are employed.