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

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the observations of the New Zealand Council of Trade Unions (NZCTU) and of Business New Zealand (BusinessNZ) communicated with the Government’s report, on 4 September 2017, as well as the Government’s reply thereto.

Articles 2 and 7 of the Convention. Accurate information and free employment services for temporary migrant workers. In its previous comments, the Committee requested the Government to: (1) 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; (2) provide information on the follow-up given to the recommendations of the report on the Ministerial Inquiry into the Aged Care Workforce; (3) clarify why the provision of free employment services is directed only to permanent migrants; and (4) indicate whether any consideration has been given to expanding all or some of those services to temporary migrants, in particular migrant workers engaged in the aged care sector. With respect to the measures taken to ensure accurate information for migrants, the Government indicates in its report that ImmigrationNZ provides a number of resources to inform migrants and their employers about living and working conditions, throughout the migration pathway, offshore to onshore. ImmigrationNZ has developed tailored workplace guides, toolkits (PowerPoint presentation, DVD in first languages, local orientation activities), and several online tools for specific migrant groups and sectors that employ a large number of migrant workers who could be vulnerable to workforce exploitation. These include international students, Pacific migrants and migrants working in the dairy farming, construction, hospitality or aged care sectors. In its observations, BusinessNZ highlights that, although there is adequate information on migration to New Zealand available both to migrants and prospective employers, the difficulty might be that knowledge of the information’s availability is lacking as well as knowledge of how to access it and suggest a more user-friendly website and more effective qualifications matching system. In its response, the Government explains that ImmigrationNZ sends welcome emails to every successful approved residence, work, and student visa holder, which contain links to useful information about working and living in New Zealand, as well as targeted emails to visa holders working in the dairy, construction and aged care sectors. The emails include links to the New Zealand NOW website (a migrant’s online guide to living, working and moving to New Zealand) that hosts easy to navigate settlement information for new migrants. NZNOW provides information and resources which support quality employment outcomes. This information is delivered in 13 languages. Concerning employment services, the Committee notes that the Government confirms that free employment services are directed only to permanent migrants as it aims to facilitate jobseekers who are residents into, or towards, independence. As regards, the follow-up given to the recommendations of the Human Rights Commission Inquiry into the Aged Care Workforce, the Committee notes that ImmigrationNZ has developed tailored workplace guides and toolkits for specific migrant groups and sectors that employ a large number of migrant workers who could be vulnerable to workforce exploitation, including aged care sectors. However, the report is silent on the recommendation that information about qualifications and registration requirements for aged care worker is made available in countries of origin. The Committee asks the Government to provide information on the measures taken to ensure that migrants are aware before departure of the existence of this wealth of information and tools and able to access it. The Committee also requests the Government to indicate any follow-up given the Human Rights Commission recommendation about ensuring that information about qualifications and registration requirements for aged care workers is available in countries of origin.

Article 3. Misleading information on immigration. Previously, the Committee requested 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. The Government indicates that, in addition to the publication of a number of resources on the subject, the Human Rights Commission of New Zealand is leading a social media campaign, Tackling Casual Racism, aimed at building New Zealanders’ understanding and acceptance of New Zealand’s rapidly increasing diversity and creating a culture against racist and discriminatory attitudes and behaviours. The campaign supports the Inclusion outcome of the New Zealand Migrant Settlement and Integration Strategy. The campaign began in 2016 with #ThatsUs, which invited Kiwis to share their personal stories about racism, intolerance and hatred, as well as their hopes for the future of New Zealand. In June 2017, phase two of the campaign, Give Nothing to Racism, was launched. The campaign publicly challenges racist attitudes, statements and actions as no longer acceptable by the majority of New Zealanders and starts a conversation about what sort of country New Zealanders want to be and reached out to 4,237,417 New Zealanders. Public engagement with the campaign exceeded all of its targets for 2016–17 in the first eight months. The Committee asks the Government to continue to provide information on the measures taken, and their impact, against misleading and false information regarding the migration process, including public awareness programmes, and any measures to cooperate with other member States in this regard.

Article 6. Equal treatment legislation. In its last comment, the Committee asked the Government to provide information disaggregated by sex on the number and type of violations detected or complaints received by the labour inspectorate; the number and nature of complaints lodged or individual grievances pursued by male and female migrant workers respectively, including RSE workers, under the Human Rights Act (1993) and the Employment Relations Act (2000); on any decisions handed down by the courts involving violations of Article 6(1)(a)(i), as well as sanctions imposed and remedies provided. Further, it had asked for information on the number of seasonal and temporary migrant workers that have been allowed to remain in New Zealand to make a formal complaint under the relevant legislation, and on any measures taken to facilitate access to complaints processes. The Committee notes that, between July 2012 and March 2017, the Labour Inspectorate completed 1,246 investigations involving migrant workers where breaches of employment standards were identified, mostly in horticulture/viticulture (202), hospitality (464), non-key sector (320) and retail (163). The Committee notes that, most of the violations reported concerns: unjustified dismissals; minimum wage, wage and holidays pay arrears; deductions from wages; unjustified disadvantage; failure to keep records; payment of premium; breach of employment agreement or to provide written employment agreement; recovery of money, and discrimination. The Committee notes that the information provided is not disaggregated by sex. In addition, it notes that, although, the Government has recognized that migrant workers may face difficulties in complaining about wages and conditions of work because of the dependency on their employer for continued stay and employment, the report is silent on the number of seasonal and temporary migrant workers that have been allowed to remain in New Zealand to make a formal complaint under the relevant legislation, or on any measures taken to facilitate access to complaints processes. In that respect, the Committee notes also the concerns of the United Nations Committee on the Elimination of Racial Discrimination (CERD) expressed in 2017, about reports that migrant workers risk being subjected to labour discrimination and exploitation, including through receipt of salaries below the minimum wage and the exploitation of international students (CERD/C/NZL/CO/21-22, 22 September 2017, paragraph 31). It further notes the concerns of the UN Committee on Economic, Social and Cultural Rights (CESCR), in its 2018 concluding observation, about the working conditions of migrant workers, which are characterized by excessive working hours and non-payment or underpayment of wages. The CESCR also expressed concerned about: (i) the significant non-compliance by employers with employment laws, including in industries that employ migrant workers; and (ii) the prevalence of workplace deaths and injuries, especially in the agriculture, forestry and construction sectors, which engage a high proportion of Māori workers (E/C.12/NZL/CO/4, 1 May 2018, paragraph 27). The Committee asks the Government to take effective measures to ensure a treatment no less favourable than that which it applies to its own nationals in respect of the matters covered by Article 6 of the Convention, such as remuneration, membership of trade unions and benefits of collective bargaining, accommodation; to raise awareness among migrant workers of existing complaint mechanisms and facilitate their access to legal assistance; and to strengthen the capacity of the labour inspectorate to monitor the conditions of work, in particular at workplaces with migrant workers. In addition, the Committee asks the Government to continue to provide information, if possible disaggregated by sex, on the number and type of violations detected or complaints received by the labour inspectorate and any decisions handed down by the courts involving violations of the Human Rights Act of 1993 and the Employment Relations Act, as well as sanctions imposed and remedies provided. In the absence of information on the number of seasonal and temporary migrant workers that have been allowed to remain in New Zealand to make a formal complaint under the relevant legislation, and on any measures taken to facilitate access to complaints processes, the Committee reiterates this request.

Equality of treatment of foreign fishing crews. In its last comment, the Committee requested the Government to provide information on the follow-up given to the recommendations of the Ministerial Inquiry to improve monitoring of and compliance by Foreign Charter Vessels (FCVs) with New Zealand employment legislation covering foreign fishing crews, and the results achieved. It also asked the Government to indicate whether members of foreign fishing crews may lodge a complaint or individual grievance under the Employment Relations Act (ERA) of 2000 or Human Rights Act (HRA) of 1993, in particular with respect to matters set out in Article 6(1)(a)(i) of the Convention. The Government states that the Fisheries (Foreign Charter Vessels and other Matters) Amendment Act 2014 came into force on 7 August 2014, as part of a range of measures following the Ministerial Inquiry into questionable safety, labour, and fishing practises on FCVs. The legislation strengthens the regulation of foreign-owned fishing vessels operating in New Zealand waters: from 1 May 2016, all FCVs have been required to be New Zealand flagged and to operate under the full New Zealand legal jurisdiction. FCV fishing in New Zealand’s Exclusive Economic Zone (EEZ) is now subject to New Zealand employment and labour law which ensure they observe and follow-up all aspects related to fisheries matters. Members of foreign fishing crews may lodge a complaint or individual grievance under the ERA or HRA, including with respect to matters set out in Article 6(1)(a)(i) of the Convention. Since May 2016, Ministry of Business, Innovation and Employment’s Labour Inspectorate has encouraged and ensured payment from two companies involved in FCVs to pay significant amounts of arrears for wages and public holidays to foreign fishing crews; and issued infringement notices for 20 companies and charging them a 1,000 New Zealand dollars (NZD) fine for failing to keep adequate wage records and contracts. The Committee takes note of this information.

Social security of seasonal workers. The Committee requested the Government to indicate whether any consideration has been given to concluding special arrangements with countries of origin to allow workers under the Recognized Seasonal Employer (RSE) scheme to maintain social security rights in their country of origin, including pension rights. The Government indicates that a 2016 evaluation of the Student Partner Program (SPP) noted that an alternative to the high cost of remitting savings from New Zealand to Pacific Island countries could be fee-free contributions to national pension funds and that it is considering ways to improve the ability of RSE workers to access pensions and reduce costs of remittances. The Committee asks the Government to provide information on the measures taken or envisaged to allow workers under the RSE scheme to maintain social security rights in their country of origin, and to keep it informed of the outcome of the reflection engaged on ways to improve RSE workers access to pensions and reduced costs of remittances.

Temporary workers. In its previous report, the Committee requested 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. It also requested to 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. The Government indicates that time spent as a resident in New Zealand on a temporary visa is taken into account for calculating entitlement to superannuation, as long as the worker has spent ten years in total in New Zealand, including five years after the age of 50. However, eligibility for unemployment and sickness benefits is calculated on the basis of time spent in New Zealand as a citizen or resident visa holder. The Committee notes the statistics provided by the Government indicating that: (i) by 31 March 2017, there were 67,884 temporary migrant workers in the country who finished being on a work visa; by 31 March 2016, 54,796; and by 2015, 47,775 – with an average length of stay of 381 days; (ii) on average, 43 per cent of them were women and 57 per cent men; (iii) in term of occupations, the majority of them were professionals, technicians and trades workers, managers, community and personal service workers, labourers, clerical and administrative workers, machinery operators and drivers, sales workers; and (iv) the majority of them were from China, India and United Kingdom, followed by many other nationalities.

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the observations of the New Zealand Council of Trade Unions (NZCTU) and of Business New Zealand (Business NZ) communicated with the Government’s report, on 4 September 2017, as well as the Government’s reply thereto.

Article 6(1)(a)(i) of the Convention. Equality of treatment with respect to conditions of work. In its previous comment, noting the situation regarding working conditions and unpaid wages of migrant workers in horticulture and viticulture, as well as in food and other services, and the concerns relating to the conditions and unequal treatment of international students in the labour market, the Committee requested the Government, in cooperation with employers’ and workers’ organizations to: (1) examine the benefits of extending the Recognized Seasonal Employment (RSE) scheme to the dairy and food sectors, and provide information on the results achieved; and (2) indicate the outcome of, and any follow-up given to, the operational response and policy review relating to migrant students in the labour market, and to provide information on any of the measures to improve the conditions of work of migrant workers in horticulture, viticulture, food and hospitality, and other services. As regard the RSE scheme, the Committee notes that, in its report, the Government indicates that the Ministry of Business, Innovation and Employment (MBIE) has not explored extending the RSE scheme to the dairy and food sectors, or other occupational sectors as suggested. In New Zealand, most dairy sector jobs are permanent and this does not align with the seasonal nature of the RSE scheme. Any other preferential work programmes would need to be consistent with the “New Zealanders first” approach and would most likely not be an “extension” of RSE, but would make use of existing work visa settings. Concerning the measures taken to improve the conditions of work of migrant RSE workers in horticulture, viticulture, food and hospitality, and other services, the Government indicates that it has taken measures, through the formulation of two complementary wrap around programmes: the Strengthening Pacific Partnerships (SPP) Project, and the RSE Worker Training Programme (Vakameasina), which provide inter alia for training to RSE workers with the aim of improving English-language, numeracy, financial and computer literacy and health and life skills during their time in New Zealand; publication of hospitality sector guides for workers (information about minimum employment entitlements, including minimum wage, leave, health and safety, list of employment services) and their employers (employers’ responsibilities to ensure that migrant workers understand their entitlements and are employed lawfully), developed in consultation with WorkSafe, the Labour Inspectorate and hospitality industry groups and unions. The Committee notes the observations made by BusinessNZ that it is important to highlight that most employers do no exploit migrant workers and that, whether working lawfully or unlawfully in New Zealand, migrant workers have long had the protection of the country’s employment laws. The Committee notes, from the statistics provided by the Government, that between 2012 and 2017, out of the 1,246 investigations involving migrant workers, where breaches of employment standards were identified, 695 or more than 50 per cent concerned the dairy, horticulture, viticulture and hospitality sectors. The Committee requests the Government to continue its efforts to improve the working situation of migrant workers in the horticulture, viticulture, food and hospitality industries and to continue to provide detailed and up-to-date statistics, disaggregated by sex, in order to assess progress made over time.

Migrant students involved in the labour market. In its observation, NZCTU recalls that student visa holders are eligible, under the terms of their visa, to undertake up to 20 hours per week of paid employment and indicates that, in some cases, student visas are being promoted by offshore migration agents as a pathway to temporary work in New Zealand. Section 11 of the Immigration Advisers Licensing Act 2007 provides an exemption from the general licensing requirement for persons who provide immigration advice offshore; and advice only in respect of applications made under the Immigration Act 2009 for a temporary entry class visa – temporary visa – student visa. NZCTU states that there is evidence that this exemption from licensing is being exploited by unscrupulous migration agents, and a minority of education providers, to provide misleading advice and to facilitate exploitation in employment of migrants on student visas and recommends that this exemption for providing advice on applications for student visas be removed. The Committee notes also the observations made by BusinessNZ that, in many instances where exploitation occurs, both in relation to migrant students in the labour market (and migrant workers more broadly), the perpetrator is a migrant employer from the worker’s own country. As regards misleading advice provided to migrant students by offshore agents, the Government declares that it has considered a range of options to improve the quality of advice to students from offshore agents, including removing the licensing exemption for advice on student visas provided offshore, as suggested by NZCTU. However, a decision was taken to allow the exemption to remain, as changes to the provision of immigration advice to students were being implemented to improve the quality of advice. The Government has sought to address this issue through changes to the Education (Pastoral Care of International Students) Code of Practice (the Code) which makes education providers fully accountable for the outcomes of their agents. The New Zealand Qualifications Authority (NZQA) has new powers to take actions against those providers who use poor performing agents. The effectiveness of these changes to the Code has been supported by improving the information on agent performance available to providers. As regards international students, the Committee notes that the Government recognizes that some populations may be at greater risk of being exploited in the New Zealand labour market and that international students may be particularly vulnerable as they are often young, without existing contacts in New Zealand and may agree to work under substandard terms and conditions, due to a lack of awareness of New Zealand’s minimum employment standards or fear to report employers if they are working unlawfully. In addition, they may have financial and family pressures from their home country and face language and cultural barriers, including finding acceptable employment. These factors combined with limited work skills and experience, may cause them to accept any work conditions they are offered. The Government is taking steps to address this vulnerability by enforcing employers’ compliance with minimum employment standards but also by developing an: (i) International Education Strategy, a cross-agency strategy involving the Ministry of Education (MoE), Education New Zealand (ENZ), MBIE (including ImmigrationNZ), the New Zealand Qualifications Authority (NZQA), the Tertiary Education Commission (TEC) and other agencies; and (ii) an International Student Wellbeing Strategy which provides an outcomes framework for government agencies focused on ensuring international students are welcome, safe and well, enjoy a high quality education and are valued for their contribution to New Zealand. The Committee notes that, in February/July 2016, ImmigrationNZ, ENZ, Auckland Tourism Events and Economic Development (ATEED) ran a pilot programme “Project Skills” to improve work-readiness for international students. The Committee encourages the Government to continue taking measures to address the specific vulnerability of migrant students involved in the labour market, and to monitor and assess regularly the results achieved with a view to adjusting the measures taken or envisaged, if needed.

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

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

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.

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

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.

Article 6(1)(a)(i) of the Convention. Equality of treatment with respect to conditions of work. The Committee had previously requested the Government to examine the alleged abuse regarding working conditions and unpaid wages of migrant workers in horticulture and viticulture, as well as in food and other services. The Committee notes that both Business NZ and the NZCTU value the benefits of the Recognized Seasonal Employer (RSE) Scheme for horticulture and viticulture, but that the NZCTU remains concerned over the range and extent of problems relating to the exploitation and treatment of migrant workers and international students working in fast food and hospitality, and horticulture. The NZCTU also recommends that the potential benefits of the RSE Scheme be examined for the food and dairy sectors given the increased dependence of the dairy industry on seasonal labour.

The Committee further notes that according to the NZCTU, many complaints of migrant workers relate to prejudices by employers and the expectation that migrant workers will accept lower pay rates, in some sectors below the minimum wage. The Committee notes that the Government recognizes that migrant workers may indeed face difficulties in complaining about wages and conditions of work because of the dependency on their employer for continued stay and employment. The Committee notes from the Government’s report that in the period 2010–11, labour inspectors (including those dealing with RSE issues) completed 2,435 minimum standards investigations, and undertook 2,077 information and workplace assessments to promote good employment practices, of which 19 per cent were in relation to workplaces employing RSE workers and 25.7 per cent related to migrant businesses or workplaces employing other categories of migrant workers; labour inspectors undertook 38 visits in horticulture and viticulture businesses focusing on minimum employment rights and accommodation. The Government also indicates that on 1 December 2011 a prioritizing system was introduced for labour inspectors focusing on employees who are more vulnerable to violations including migrant workers, and that in 2012–13 activities were to focus on assisting RSE workers to access information and make complaints including through union representatives and their country representatives in New Zealand. With respect to migrant students, the Committee notes that the Ministry for Business, Innovation and Employment (MBEI) is taking measures to address the concerns relating to the conditions and unequal treatment of international students in the labour market through enhanced monitoring and enforcement (operational response), as well as a policy review. The policy review aims to identify the size and scale of the problems associated with the employment of migrant students, and the Government anticipates that the findings of the review will also shed light on the measures needed to ensure the application of New Zealand’s employment law and minimum conditions for other migrant workers. The Committee requests the Government, in cooperation with employers’ and workers’ organizations, to examine the benefits of extending the RSE Scheme to the dairy and food sectors, and provide information on the results achieved. It also requests the Government to indicate the outcome of, and any follow-up given to, the operational response and policy review relating to migrant students in the labour market, and to provide information on any of the measures to improve the conditions of work of migrant workers in horticulture, viticulture, food and hospitality and other services. The Committee requests the Government to provide information, disaggregated by sex, on the number and type of violations detected or complaints received by the labour inspectorate and any decisions handed down by the courts involving violations of Article 6(1)(a)(i), as well as sanctions imposed and remedies provided. Please provide information on the number of seasonal and temporary migrant workers that have been allowed to remain in New Zealand to make a formal complaint under the relevant legislation, and any further measures taken to facilitate access to complaints processes and the impact thereof.

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

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

1. Provision of information – legislation. The Committee notes that the removal system for persons unlawfully present in the country is being reviewed in the context of proposed new legislation on immigration. The Government states that as a response to the changing trends in migration, a thorough review of the Immigration Act of 1987 is under way. The Committee asks the Government to provide copies of the new immigration legislation, once adopted.

2. Articles 2 and 3. Information and assistance – measures against misleading propaganda. The Committee notes that according to the NZCTU, the Government’s measures to license immigration consultants operating in New Zealand do not address the concerns expressed by some unions such as the New Zealand Nurses Organisation and that more needs to be done to improve the provision of information to migrant workers before they come to New Zealand. While noting that New Zealand has excluded Annex I, the NZCTU nevertheless requests the Government to examine possible arrangements with overseas governments to monitor and regulate the practices of immigration and recruitment agencies. The Government indicates that the Immigration Advisers Act requires both New Zealand-based immigrant consultants and overseas immigration consultants, as well as recruitment agencies which offer immigration advice and services to register with the New Zealand Immigration Advisers Authority; this is not required from agencies that confine their activities to recruitment only. The Committee recalls the Government’s obligations under Articles 2 and 3 of the Convention to take steps against misleading propaganda regarding the migration process and to provide migrant workers with accurate information. Recalling also that cooperation between migrant-sending and migrant-receiving countries may prove the most effective way of ensuring that migrants are recruited under non-abusive and non-exploitative conditions, the Committee asks the Government to provide information on the specific measures taken or envisaged in this regard.

3. Facilitating access of migrant workers to skilled jobs. With regard to the difficulties of some migrants to take up the work for which they are qualified, the Committee notes the Government’s statement that in order to work in New Zealand in a number of occupations, all people are required by law to hold a relevant occupational registration. Applicants can have their overseas qualifications evaluated by the Qualification Recognition Services of the New Zealand Qualifications Authority, which establishes the nearest comparable qualification. Business New Zealand states in this regard that, recognition of professional qualifications aside, the difficulties experienced by some professionally trained migrants often arise from the reluctance of relevant professional bodies to admit them to membership, with the consequence that they are unable to practice in the country. Recalling Paragraph 10(b) of the Migration for Employment Recommendation (Revised), 1949 (No. 86), the Committee asks the Government to indicate whether any vocational training is offered to migrants to enable them to obtain the qualifications required for a particular occupation, and the measures taken to address the reluctance of professional bodies to admit migrants to their membership.

4. Women migrant workers. In reply to its previous comments, the Committee notes the Government’s statement that most of the female migration is accounted for by the “family sponsored” migration stream and that in all categories male migrants continue to slightly outnumber female migrants. The Committee draws the attention of the Government to the fact that the “feminization of migration” refers to the reality that an increasing number of women are migrating to seek employment for themselves and that often by the very nature of the work they undertake or due to past discrimination in the labour market and society, they may face inequalities compared to their male counterparts, foreign or otherwise, relating to working and living conditions, social security, work-related taxes and access to justice. The Committee notes that the Government is undertaking a “Longitudinal Immigration Survey: New Zealand” which is surveying the settlement experiences of refugees and migrants to New Zealand, including in the areas of jobseeking, learning English and accessing health services. The Committee hopes that the survey will take into account the specific experiences of and obstacles faced by women migrant workers, and asks the Government to provide a copy of the survey, once completed. Please also provide information on any measures taken to address particular difficulties faced by women migrants with respect to the matters enumerated in subparagraphs (a)–(d) of Article 6(1).

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

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.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the information supplied in the Government’s report and the comments of the New Zealand Employers’ Federation contained in the report.

1. The Committee notes the adoption of amendments to the Immigration Act, 1987, which aim, inter alia, at improving the effectiveness of the removal regime for persons unlawfully present in New Zealand. The Committee also notes the adoption of the Employment Relations Act, 2000, that extends the prohibited grounds of discrimination in employment. The Committee asks the Government to provide detailed information on the implementation of the new provisions of law or regulations adopted. It also would be grateful if the Government would state how the current trends in migration flows have affected the content and implementation of its national migratory policy and legislation.

2. Article 6 of the Convention. Recalling that under paragraph 1 of this Article, every State which has ratified the Convention undertakes to apply, without discrimination in respect of nationality, race, religion or sex, treatment no less favourable than that which it applies to its own nationals in respect of the matters enumerated in subparagraphs (a) to (d) of this Article, the Committee would be grateful if the Government would indicate the measures taken or envisaged to ensure that women migrant workers are treated on a par with their male counterparts, foreign or otherwise, in respect of working and living conditions, social security, work-related taxes, and access to the justice system - in view of the growing feminization of migration for employment (see paragraphs 20-23 and 658 of the General Survey of 1999 on migrant workers).

3. Article 6, paragraph 1(b). The Committee refers to its previous direct request concerning the right of migrant workers to equal access to social security. The Committee notes that section 74 A(1) of Social Security Act, No. 136 of 4 December 1964, as amended in 1991, 1993 and 1999, provides among other things that a person who holds a temporary work permit or a limited purpose permit will not have the right to receive cash benefits, although an emergency benefit can be paid on the grounds of hardship. The Committee notes from the Government’s report that, in order to be granted an emergency benefit, the applicant, who does not have permanent residence, must be lawfully present in New Zealand and be awaiting the outcome of his/her application for refugee status in New Zealand; must have refugee status in New Zealand; or must be applying for a residence permit under the Immigration Act, 1987, and be compelled to remain in New Zealand through unforeseen circumstances. Applicants who have a temporary permit may not qualify if they do not meet the above criteria. The Committee notes these distinctions and the possibility that some temporary permit holders may not have access to any cash benefits and thus would not be treated on an equal footing with respect to New Zealand citizens or permanent residents in New Zealand.

4. In this respect, the Committee would like to draw attention to the preparatory work to the adoption of the Convention, which makes it clear that the Convention covers all migrant workers, both those with permanent and temporary residence status, and that Article 6(1) of the Convention stipulates that States should apply to immigrants lawfully within their territory, treatment no less favourable than that applicable to its own nationals, in respect of certain matters, including social security (see paragraph 431 of the General Survey of 1999 on migrant workers). 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 would not appear to be the case. The Committee therefore hopes that the Government will provide information on the measures taken to ensure that its legislation in this regard is in conformity with the Convention and that it will supply information in its next report on the application of Article 6(1)(b) to temporary permit holders.

5. The Committee notes the New Zealand Employers’ Federation comment according to which some migrants to New Zealand, who gain residence on the basis of their work-related skills, subsequently find it extremely difficult to take up the work for which they are qualified. The alleged reason is that occupational licensing rules require such migrants to re-establish their credentials by sitting for further examinations in the country, which in practice may prove to be difficult. The Committee would be grateful if the Government would provide information on any measure it has taken to facilitate access of migrant workers to skilled jobs such as, for example, recognition of occupational qualifications acquired outside the country.

6. The Committee asks the Government to continue to provide information on New Zealand nationals working abroad, and the countries of origin of foreigners employed in New Zealand and to communicate the results, if any, of the relevant activities of the labour inspection service, in accordance with the provisions of the Convention.

7. Finally, the Committee asks the Government to state whether courts or other tribunals have handed down decisions involving questions of principle relating to the application of the Convention. If so, please supply the text of these decisions.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee takes note of the information supplied in the Government's report. It also notes the information provided by the Government in the context of the application of the Unemployment Provision Convention, 1934 (No. 44).

Article 6(b) of the Convention. The Committee notes that section 74A(1) of Social Security Act, No. 136 of 4 December 1964, as amended in 1991 and 1993, provides amongst other things that a person who holds a temporary work permit will not have the right to receive cash benefits; however, the Director-General of Social Security may, in certain circumstances, grant an emergency benefit under section 61 of the Act or a special benefit under section 61G of the Act.

The Committee asks the Government to indicate the manner in which section 74A(1) of the 1964 Social Security Act is applied in practice and in particular to state whether all persons who hold a temporary residence permit, regardless of the duration of their stay, may be barred from entitlement to cash benefits.