The New Zealand Government has introduced migrant recruitment stand-down periods for employers who breach immigration and employment law. The policy, as announced by Immigration Minister Michael Woodhouse, came into force from 1 April 2017. Woodhouse said, “It is unacceptable that employers who exploit migrant workers are still able to recruit from the international labour market and disadvantage those employers who do the right thing.” This is an important step in a complex issue that requires a multifaceted response.

How will the stand-down system work?

Employers who receive an employment standards penalty will be included on a list provided to Immigration New Zealand.

Immigration New Zealand has published guidelines and criteria in April’s Amendment Circular. These guidelines aim to ensure that stand-down periods are applied fairly, consistently and transparently. Essentially, businesses must comply with all relevant employment and immigration laws in force in New Zealand, including paying appropriate minimum wage, meeting holiday and special leave requirements and only employing people who have authority to undertake that work under the Immigration Act 2009.

Is the policy effective in practice?

Upon closer analysis, it can be argued that this policy has been implemented without proper consideration of the repercussions. The stand-down period is enforced strictly. Once the Labour Inspectorate has good cause to believe that an employer is exploiting migrants, they will issue them with a notice, and the stand-down period begins. They are unable to employ migrants from this point.

If the exploitation has been proved, a stand-down period can be argued as the best way to protect migrant workers and consequently a reasonable response. However, an immediate stand-down period could potentially punish employers who do not deserve it. This can have hugely detrimental effects on reputation and consequently have a drastic economic impact. This is particularly applicable to industries that are dominated by migrant workers.

This is especially problematic when the party that is subject to the stand-down period is simply not guilty. While the option is given to defend the fact of exploitation, this is undermined by the fact that the stand-down period is already in place. Currently, the approximate time it takes to get a hearing is 6 months. By the time the innocent party is able to get a hearing, they may have seen out a stand-down period that they did not deserve.

Whilst exploitation is by no means justifiable and should certainly be punished, it can be argued that the automatic stand-down period is excessively punitive. In its place, a ‘three strikes’ system could be implemented to support the economic prosperity of New Zealand businesses. In this, the first two strikes could be accompanied by a hefty fine. On the third strike, the business would be faced with a lengthy stand-down period. This would achieve the same goals and only detriment the business of those that truly deserve it.

Furthermore, the strict application of the stand-down period has the potential to harm the very people the policy strives to protect. For example, if a company in the middle of a stand-down period wishes to continue to employ a migrant who has to renew their visa, they will be unable to do this. This will result in the migrant being out of work and is counter-intuitive to the purpose of the policy.

Get in contact with our employment law lawyers in Wellington if you have concerns about migrant exploitation.