In continuation of our three parts story, from last week on the state of the overseas (Indian) students, we look at the state of migrant workers this week. In reality, a large number of these students make up the section we call “migrant workers”. The abuse and exploitation of migrant workers that has come to light recently, has perhaps pushed the Government to take a serious look at the Immigration amendment bill that takes a serious look at this.
The Immigration Amendment Bill (No 2) which cracks down on employers who exploit migrant workers, has passed its final reading in parliament.
“I have been concerned about reports of migrant exploitation and am confident this new legislation will make a big difference in protecting some of our most vulnerable workers,” says Michael Woodhouse, the Minister of Immigration. “The fundamental principle is that migrant workers have the same employment rights as all other workers in New Zealand.”
Under the new law, employers who exploit temporary workers will face a jail sentence of up to seven years, a fine not exceeding $100,000, or both. A new offence has also been introduced for employers who exploit legal temporary or unlawful workers and are reckless as to their immigration status. This offence carries a jail sentence of up to five years, a fine not exceeding $100,000, or both. In addition, exploitative employers who hold residence visas will also be liable for deportation if the offence was committed within 10 years of gaining residence.
“The tough penalties reflect the seriousness of such offences and reinforces that this Government does not tolerate employers who exploit migrant labour for their own commercial advantage and will do everything possible to stamp out this abhorrent practice,” says Woodhouse.
The Bill also extends the search powers of immigration officers so they can search an employer’s premises and talk to the people present to identify offending by employers. They will also be able to check documents and search for unlawful workers.
“The Government has already made a number of changes to detect and address migrant exploitation that encourages victims of serious workplace exploitation to come forward and report that exploitation, and this new legislation complements those changes.
“We are also spending more than $7 million over four years to boost the number of labour inspectors and immigration officers dealing with the Canterbury rebuild,” says Woodhouse.
Although the bill covers off many areas of migrant exploitation, the problem is perhaps a little more complex and reforming the situation will need time, education, awareness and also greater support for the migrants who find themselves in this predicament.
We tried to delve slightly deeper into this issue and realised some facts that perhaps contribute to the state of migrant workers and what makes them vulnerable to exploitation. To start with, temporary migrant workers can be particularly more vulnerable to exploitation because they cannot access social services and, in particular, income support. Also if there are certain restrictions or conditions on their visa, they are often reluctant to approach the authorities for fear of the consequences for their immigration status. In addition, many migrants are not familiar with New Zealand’s institutions or their employment rights under New Zealand legislation.
Statistics show that most students, specially coming from India, arrive with a view to secure a permanent residence for themselves on completion of their study. A large number of them have families back home who are paying off huge loans to help them settle overseas. Generally, students who are granted work rights, their visa conditions specify that they may only work for up to 20 hours in any given week and full-time over the Christmas/New Year holiday period. It has become evident that students, possibly because they are underpaid by their employer, want to work longer hours, making them in breach of their visa conditions (with potential liability for deportation and/or impacts on subsequent visa applications). In many cases, students who do not have work rights also continue to work to make ends meet and therefore do not complain about their work situations.
Also, both international students with work rights and those on essential skills visa have employment conditions on their visas that, if breached, could make them liable for deportation or could potentially affect subsequent visa applications. This fear of immigration consequences can be exploited by unscrupulous employers. For these workers, their visa conditions stipulate the occupation that the worker must work in and the employer that the worker must work for. Because their visa is tied to a specific employer, if they leave their job, they can lose their visa and therefore become liable for deportation.
Unlike New Zealand citizens or permanent residents who have access to our welfare system, temporary migrant workers do not have a safety net and may be more reliant on their employer. In addition, the ability for migrant workers to stay in New Zealand may require the support of their employer, creating an even greater power imbalance between employer and employee. Therefore, migrant workers need additional protection over and above that of other workers.
New Zealand is a small economy and therefore profits in small business enterprises are not very large. Employers therefore possibly seek to gain a commercial advantage by employing migrants on terms below minimum employment standards. For example, an employer who pays two workers $5 an hour less than their entitlement for a 40 hour week is saving $400 per week or $20,000 per annum in overheads. By avoiding the full costs of employing workers on a lawful bias, the commercial advantage gained by exploitative employers can potentially drive compliant businesses out of the market.
The Labour Inspectorate has only been collecting data on employees’ migrant status since July 2012, so an understanding of the true scale of the problem is still limited. Between July 2012 and May 2013 the Labour Inspectorate has completed investigations of approximately 180 complaints that involve breaches of the Minimum Wage Act 1983.
The Labour Inspectorate and Immigration New Zealand (INZ) report that it is common for employers who exploit migrant workers to themselves be former migrants. There are certain sectors where exploitation of migrant workers is more prevalent, for example, lower skilled work in horticulture/viticulture, hospitality, retail and construction. Migrant exploitation is also prevalent where there is reliance on labour contracting as a business model.
Looking at the other side of the coin, some well-intentioned employers often find themselves being used by their employees who leave them in the lurch as soon as their Residence formalities are completed. We heard many stories of employers who lost their employees overnight once their residence applications had been approved. Having invested and supported their migrant employees, small business owners feel let down and short changed.
Although the passing of this bill is a step in the right direction but there is still a lot of ground to be covered, if the government is serious about resolving this issue with migrant workers.
There is a lot to be said and heard on this subject, but we decided to venture into the community and speak to some employers and employees to hear what the reality on the ground was like. The employees sharing their stores here wish their identities to be unknown and we respect their privacy. Here’s what they had to say.
Male, 27 Years:
I have worked in a liquor store for more than three years. I started working at a pay rate as low as $5 per hour. I was a student when I started working. I did not have much money at that time that I could not survive without a job. And at a pay rate that low, I had to work more hours than I was allowed to, in order to generate an adequate amount of money to bare my expenses and save some of it for future. I have worked for almost one and a half year at the same pay rate, which then increased by a Dollar. I would work almost 15-18 hours a day and would come home to get a short sleep of 4 hours only. My friends used to tease me that “you are only after Dollars. What will you do with that lot of money, you should enjoy your life also.” But I couldn’t tell them what I was going through.
And that wasn’t it. I never got any sick leave or monthly paid leaves. Because I needed a visa support from my employer, I had no other option than to get exploited. Because Kiwi companies do not hire immigrants with temporary visas and then we are left with these kind of jobs only where employers I think take it as their opportunity to save their money. I think the employers who complain for their staff using them for their visas, should also make sure that they are providing their employees with the basic benefits one should get.
Female, 25 years :
I came here as a student in 2001 and had started working at an Indian restaurant. I am still working at the same place, because I need visa. Employers thinks that we (employees) are being selfish and only use them till we get our residency. I would not lie and would say that it is true. I mean, who would like to work at a place where you have no chance of professional growth and getting $10 per hour. You have to work more in order to earn a basic salary. And worse than that is, when the employers behaves as if he’s doing a favour on you by paying at least $10 dollars because other are paying lower than that. I can’t see it stopping in near future. Because migration of Indian students is increasing every day and 98% of them come with the intention of settling here down permanently. Most of the Kiwi companies prefer to hire people who are residents of the country. So what are we left with? Nothing but such jobs where you can speak up for you basic rights.
Male, 32 years:
I won’t say that I haven’t been exploited but my “exploitation period” didn’t go too long. Like most of the people know, that Indians are not paid very well. And those behind exploiting are also Indians. This is the most disheartening fact of the exploitation. I came here thinking that people who belong to our country will be helpful to us. But they instead, having the advantage of knowing our situation very well, are exploiting their own country-people. This has also largely ruined the image of Indian in many countries. Everyone have heard of the recent “Masala” controversy. It is one of such examples. My immigration lawyer, when I went to him for my visa assistance, told me that in case of Indian employers, immigration is more careful because they expect people working or paying illegally in such companies. So, it’s causing a big problem for many genuine cases also. We are the ones who have to pay for the misdeeds of a bunch of crooks.
Female, 43 years:
I am working as a beautician with an Indian employer. She’s paying me $9 per hour. I have been working here from 3 years. My husband is working in a good company. We both are PR holders. But we can’t run our house with only his earnings. So I have to work as well. I can’t speak very good English so have to work with Indian employers. I have to work 8-9 hours continuously in 15 minutes of lunch break. I can’t complaint about it to the concerned authorities because I can’t afford to lose my job. Now, I have even stopped thinking that I am getting exploited. And moreover, I think I never thought of moving out of my comfort zone and try something challenging.
While employees are complaining of expolitation of their rights, The Employers also put forward their side of story.
Barry Kundu, Manager at an Indian Restaurant
I have been working here as a manager of different restaurants at different times for the last 4 years. The employers mostly hire people with good experience and the energy required in the service sector. All these years even I have been a part of recruitments I have seen many people come and go. If students are coming here without any experience or exposure to the New Zealand market how can they expect a good job until they get experience, plus most of them have trouble speaking English which is a basic requirement here. See there’s 200-400 students coming to Auckland from India every week, how can 200 jobs be provided every week?
We see the skills but most of them lack the skills even if they are hard working, plus their education does not really matter in service sector.
When it comes to exploitation, yes there are exploitations happening that I have heard of. Students who say they are paid less than minimum wage and have to work long hours are actually their mistake too. If the employers are guilty then so are students because if they are offered less than minimum wage they can say no and look for better jobs. They are not bound to work on less than minimum wage and again if they complain, that’s not fair.
Ninad Joshi, Grocery Store in Sandringham
I have been working here for the last two years in this store because it is my cousin’s store so I am like the employers. We don’t really have big operations so we have hired only one student at our work, he is given minimum wage and works for 20 hours weekly. Look, the students who come here are too many, and there are of course fewer jobs here because it is a small country. We want employees who can speak fluent English because that is the demand of the job. Yes there are students who get exploited by the employers by getting less than minimum wage payment and long working hours so the employers are guilty and they should be held responsible.
Jasmeet Kaur, owner of a Snacks Restaurant in Sandringham
I started this restaurant around in 2001 and have seen so many students working under us. We have around 7-9 employees working with us mostly students, some are part time and some are full time. I treat my employees as my daughters; they are required in the service section as well as inside the kitchen. They are all minimum wage paid and we make sure their class hours (if students) do not clash with our working hours. I know many who come from India are not from very rich families and they have financial constraints as well as other pressures on their head. I can understand getting job here is difficult because there is so much competition in the market, not just in food business but in every sector. So many students are coming here and looking for work but where to produce work when you have a budget and certain requirement only. I get around ten to twelve CVs every week asking for part time and full time work but sometimes we don’t really need anyone and everything is stable, where do we hire them for?? I know it is tough for them and I do know that some Indian employers do not pay them on minimum wage but since I have never discriminated my employees I would not like to comment on this, it’s bad to exploit your employees because they are the ones who get business to the firm. I don’t know what education agents in India promise the students there and they come here with huge expectations. It’s the agents who need to answer and should be held responsible and are guilty of projecting false promises to naive students and their families.
Varun Makol, Owner Stop n Shop Stores in Auckland
I came here around 6 years back and worked as a bartender in Skycity, my wife was a student of Accounts at AUT. Soon after she got the job we planned to open up a business instead of just working under someone and now I have 5 necessity stores in Auckland, planning to open a couple of more by this year end.
I have 25-30 part time and full time employees of which some are students and some are on work visa. I have always considered my employees very dearly and a part of my family. I treat them with respect and make them feel comfortable at workplace since they are our real assets. I have 5 stores so I don’t stay in one store all day; I have to manage all of them. When I recruit employees, I look for their experience and more than that their enthusiasm and passion to work, not just for money but to learn. This is why I don’t have to employ a new person every time, most of my employees work for long term with my stores. When it comes to students who complain of being exploited, yes it is true that some Indian employers do that and since NZ is a small country with a very stiff competition many students are not able to secure job in this place. Now since IELTS is removed for most students so they really don’t have a clue how to communicate in this English speaking country, in such scenario the students cannot really blame the employers of not employing them or the government. Over that I find the agents back in India who send these innocent out of hatch kids to a foreign nation with such high false hopes and dreams, they are to be blamed and caught guilty and to some extent the parents too. Some students are barely 18 or 19 years old and parents send them to a foreign country with huge investments, when they cannot secure a job here, the parents put a pressure on them that to earn their living because they too are having cash crunches.
(Source: Regulatory Impact Statement Protecting Migrant Workers from Exploitation , www.mbie.govt.nz; Employees' and employers' comments as told to Swati Sharma and Rizwan Mohammad of Indian Weekender)