Frequently Asked Questions
Migrant exploitation has been defined as “the unjust and often illegal utilisation of migrants for the extraction of profit” (Francis Collins and Christina Stringer Temporary Migrant Worker Exploitation in New Zealand (July 2019).
The Ministry of Business, Innovation and Employment defines migrant exploitation as:
“behaviour that causes, or increases the risk of, material harm to the economic, social, physical or emotional well-being of a migrant worker. This includes breaches of minimum employment standards or breaches of health and safety and immigration laws. This excludes minor and insignificant breaches that are not constant and easily remedied”.
Exploitation of migrants is an offence under s 351 of the Immigration Act 2009.
Migrant exploitation is illegal but still happens in New Zealand. It can involve various breaches of your employment, immigration and human rights, but the most common that we see at Community Law Centres are where migrants:
- Are required to pay a premium for a job
- Have to give back part or all of their wages to their employer
- Are paid too little or nothing at all for their work
- Are not paid for all the hours they work
- Are told by their boss to tell government officials (eg Labour Inspectors) that they have worked less hours than they actually have
- Are made to work an excessive number of hours, with no breaks
- Have no time off from work
- Are not paid for public holidays or annual leave,
- Are treated unfairly and unkindly by their employer or managers, and
- Are not free to leave their workplace (eg because the doors and windows are locked).
Everyone in New Zealand has the right to be treated well at work. Minimum employment standards apply to us all – citizens, residents and migrants, including anyone on a work visa.
More about premiums
A premium is a payment for a job. It is illegal in New Zealand for an employer or their agent to ask for, or to receive, a premium in exchange for giving someone a job, Section 12A, Wages Protection Act 1983.
It may be hard to know the difference between paying a person to apply for your visa, and an illegal payment for a job. A premium will usually be a unreasonable amount of money, and far in excess of an immigration agent’s far. Ask around and see what other agents are changing to apply for a visa.
If your employer, or another person is asking you to pay anywhere around $8,000 – $50,0000 or more to have a job in New Zealand, this is very likely to be an unlawful premium.
If you are asked to pay a premium offshore (ie outside of New Zealand), then it will be almost impossible to recover that money. Employers can be sneaky and ask you to pay the money into their family member’s account. This can make it very difficult to trace back to the employer. Also, the current legal position in New Zealand is that New Zealand courts are unable to order repayment of premiums paid offshore. The employer could of course agree to pay the money back to you, but we do not see that happening very often.
It is important to collect evidence of employment breaches, as this can help you change your visa (if your visa is connected to your employer), and also help you recover any money owing to you.
Here are some forms of evidence you can collect:
- Take photos or videos on your phone while you’re at work. Your phone will record the date and time you took each photo or video, which can show that you were at work at certain times (which might be different from the employer’s record).
- Keep your own record of the hours you work every day. An employee’s own record of hours which is taken daily (ie a contemporaneous record) is seen as good evidence.
- Turn on location services on your mobile phone. This record can also show when you were at work.
- Talk to your phone provider (like Spark or One New Zealand) and ask them to give you the cell tower data for a particular time when you know you were working, but your employer says you weren’t.
- Screenshot messages on WhatsApp, WeChat, or other messaging services that show you are being exploited. For example, if your employer texts you your roster and it’s different from the hours you’re paid for, keep these records. This will show that your employer has not kept accurate records, which they must legally do. If your employer asks you to delete messages from your phone, or if they block your access to messaging platforms, it is very useful to have your own screenshots of these conversations as they can be important evidence.
The VERI-Mi app can help you collect this data.
No. It’s against the law for an employer to charge money (sometimes called a “premium”) for a job. If your employer or their agent asks for, or receives a premium in exchange for giving you a job, this is a breach of the Wages Protection Act 1983. Your employer also can’t ask you to pay them back for the cost of recruiting you.
You can make a claim in the Employment Relations Authority to recover the money if:
- You’ve paid the premium into a New Zealand bank account, or it’s been deducted from your wages in New Zealand.
Unfortunately, if you’ve paid the money into an overseas account or to someone outside of New Zealand, then it will be really difficult to get the money back. Employers can be sneaky and ask you to pay the money into their family member’s account. This can make it almost impossible to trace back to the employer. Also, the current legal position in New Zealand is that New Zealand courts are unable to order repayment of premiums paid offshore. The employer could of course agree to pay the money back to you, but we do not see that happening very often.
It may be hard to know the difference between paying a person to apply for your visa, and an illegal payment for a job. A premium will usually be an unreasonable amount of money, and far in excess of an immigration agent’s fee. Ask around and see what other agents are changing to apply for a visa.
If your employer, or another person is asking you to pay anywhere around $8,000 – $50,0000 or more to have a job in New Zealand, this is very likely to be an unlawful premium.
If you are being exploited at work, you are likely to be frightened, stressed, and worried about your safety and immigration status. Exploitation is illegal and you do not have to put up with it.
You can:
- Collect evidence of what is happening
- Have a free meeting with a lawyer at Community Law, who may be able to help you recover any lost wages.
- Report what’s happening to the government, so they can help you apply for a Migrant Exploitation Protection Visa, which will allow you to leave your current job and find another one with a better employer.
VERI-Mi will never share your data with anyone else – including any government agency – without your permission. Your information is yours and you can choose who else to send it to (such as your community lawyer).
We have worked with a data forensics expert to make sure the GPS tracking tool on the VERI-Mi app is as robust as possible. GPS data such as Google timeline location data, is often used in Employment Relations Authority cases as evidence of an employee’s location and to verify the hours they worked. The GPS tracker on the VERI-Mi is similar to Google timeline location data.
Even without GPS location data, an employee’s ‘day-by-day’ record of the hours they work is good evidence of their actual working hours and can be used to challenge an employer’s records. You can record the time you start and stop work (and any lunch or dinner breaks) on the app, and the GPS location data collected on the app can also be used to verify your work hours. Photos and copies of messages with your employer are also forms of evidence that have been accepted by the Employment Relations Authority.
Bad employers will sometimes try to close their business to avoid having to pay debts, including money owed to employees. However, the company directors or managers can be held directly responsible for making payments if a company cannot pay its debts.
It is important to keep any evidence that the company is struggling financially, as this will help you bring the responsible directors or managers into the case.
VERI-Mi is completely independent of government. You do not have to report exploitation to the government. Talk to us about your options. A benefit of reporting exploitation to the government is that they can help you leave your workplace by issuing you a Migrant Exploitation Protection Visa if they think it is likely you are being exploited by your employer. The Ministry of Business, Innovation and Enterprise (MBIE) is a government agency. It has a special call centre that deals with complaints about migrant exploitation.
To make a complaint to MBIE you can call them on 0800 200 088 or fill out the online form at https://www.employment.govt.nz
MBIE has a free interpretation service if you would like an interpreter. Once you make a complaint, someone from MBIE will contact you to talk about your experience. Their job is to help and protect you, so be open and honest with them. If they think you might have been exploited by your employer, they’ll send you a “Report of Exploitation” letter that explains how you can apply for a Migrant Exploitation Protection Visa if you want to.
The Migrant Exploitation Protection Visa is a 6-month, open work visa, which allows you to work for any employer in New Zealand, for any wage above the minimum wage. The current visa policy lets you apply to extend the visa for a further 6 months. To apply for the visa the first time, you need:
- Two recent passport photos
- A certified copy of the identification page of your passport (Community Law or a Justice of the Peace can do this for free.)
- A copy of the Report of Exploitation from MBIE.
Once you get your first Migrant Exploitation Protection Visa, it is important to keep copies of job ads and screenshots or emails of your job applications, showing the role and the hourly wage. This evidence will be important if you want to extend the visa for another 6 months.
To extend your visa, you will need to complete another application form with evidence that you have looked for work for at least four months, with an Accredited Employer who was advertising a similar role to the one you had under your Accredited Employer Work Visa, and that paid a similar hourly wage.
If you decide you don’t want to apply for the Migrant Exploitation Protection Visa, you don’t have to. If you get offered another job by an accredited employer, you may decide to apply for a variation to your visa instead of applying for the Migrant Exploitation Protection Visa. The benefit of varying your existing visa is that you may get the amount of time remaining on your existing work visa. However, the downside of not reporting the exploitation is that the employer will not be held to account and may be treating other people the same way.
