Move fast on migrant exploitation protection work visas, says legal expert

Migrant workers whose accusations of exploitation against a former employer are being investigated can get their lives back on track thanks to the migrant exploitation protection work visa (MEPV).

Once a worker has filed a report with the Labour Inspectorate at the Ministry of Business, Innovation and Employment, they can then apply for an MEPV, at no charge, and look for work to tide them over.

The visa lasts up to six months, but rules changed on 17 October when the duration and criteria for getting the visa were tightened, including the removal of a possible further six-month extension.

With its intention of pulling up criminal activity in the recruitment of migrant workers in New Zealand, the government has made it tougher for the ones who only want a fresh start in a friendly country, Laurent Law principal Simon Laurent told HRD.

Migrant exploitation protection work visa tightened

An MEPV cannot last longer than a worker’s original visa. If that is due to expire in three months, say, then the MEPV will also retire in three months. Taking away the possibility of a six-month extension “doesn’t give people in that situation a great deal of time,” Laurent said.

“The second issue is more of a systemic problem,” he said, where anyone wanting to get on to another visa would need to find an accredited employer, in order to get the offer of a job.

That employer must first earn a “job token”, which requires three steps: get accredited, advertise most positions and satisfy the Immigration department that there are not enough locals to employ.

“If Immigration is satisfied on that point, [the employer] gets a job token, which can be given to a candidate in order for them to make the application for a work visa,” Laurent said.

The process takes time. “The reason this is so problematical now is that the timeframes for all of stages have blown out, owing to a move to increase the verification carried out at all of these stages,” he said. “Previously, they were just letting anybody get accredited, letting the job checks go through without verifying anything.”

Migrant visa application process

Under a tighter watch, accreditation is taking about three months and job checks are taking three or four months. “That’s much more than six months,” he said.

Laurent’s advice to employers that rely on migrant workers is to apply for accreditation “as fast as possible”, on the basis it could take at least seven or eight months to be able to hire. “If you’ve got an urgent need to fill a position, that’s just not going to work,” he said.

“Get on to things quickly. Be prepared to have your financials picked over. Be prepared to answer questions about any potential issues that have been raised through the Employment Relations Service, like complaints or unjustified dismissals and grievances.”

Anyone who has a potential issue should get professional advice, he said. “Immigration is becoming much more thorough about the way it carries out its verification activities.”

Disincentive to hire people outside New Zealand

It’s a strong disincentive for people to consider even trying to hire people outside of New Zealand.

“It’s an ideological win for the government, because they’re trying to show they are making jobs available for New Zealanders, even if the New Zealanders don’t want to do them,” he said.

Laurent clarifies that last remark. “It was an ideology of the previous government – the current government has inherited this,” he said, passing along a message that the Minister of Immigration at a recent conference told the audience that it’s the government’s ambition to streamline the process for good employers, and subject the bad ones to more scrutiny.

“How they’re going to do that, I don’t know,” he said. “There is quite a lot in the mix in terms of changing policy settings.”

Migrant workers are mainly drawn to work in construction, aged care, hospitality, nail salons and agriculture, he said. Seasonal pickers are employed under a different visa regime.

Unregulated recruitment agents on watch

There is a darker side to the migrant visa hustle, he said, where unregulated recruitment agents in source countries – India, China, the Philippines – ask people to pay a lot of money to them to find a job for them. Those agents then pay a kickback to a New Zealand employer to secure a position for a migrant.

“That’s the way some of the jobs are being filled,” Laurent said. “The problem with this is we’re talking about people who are not from rich countries or rich environments, paying $30,000, $50,000, $100,000 [to unregulated recruiters] for a job.”

It’s illegal, he said, a clear breach of the Wages Protection Act: “It’s a criminal offence and the Ministry of Business is mounting investigations and prosecutions against employers.”

Laurent’s message is simple: be very cautious about dealing with offshore recruitment agents, some of them are also fabricating applicants’ qualifications and reference letters.

“These sorts of schemes are popping up all over the place,” he said. “Honest employers are being tarred with the same brush, unless they are very careful about ensuring that whatever migrant they are getting is what they say they are.”