What Are My Rights at Work as a Migrant Worker in New Zealand?
Moving to New Zealand for work can be exciting, but it can also leave you dependent on an employer for your income and, in some cases, your ability to remain in the country. Unfortunately, some employers take advantage of this. They may assume migrant workers do not understand New Zealand employment law or will be too worried about their visas to complain.
The important thing to know is that migrant workers have the same minimum employment rights as other employees in New Zealand. Your employer cannot ignore those rights because you are on a temporary visa, are new to the country, or do not speak English as your first language.
If something does not feel right, seek advice early. Employment problems and immigration problems can have strict time limits, and the steps you take in one area may affect the other.
Do migrant workers have the same employment rights as New Zealand workers?
In most cases, yes. New Zealand’s minimum employment standards generally apply to migrant employees in the same way as they apply to citizens and residents. This includes people working on temporary visas and people whose visa allows them to work only for a particular employer. Your employer must comply with New Zealand employment law. They cannot contract out of your minimum legal rights or ask you to give them up.
Your basic rights include:
A written employment agreement.
At least the applicable minimum wage for every hour you work.
Payment of your wages in money and at the agreed time.
Rest and meal breaks.
Annual holidays and other leave entitlements.
Correct public holiday payments and alternative holidays where applicable.
A safe and healthy workplace.
Protection from unlawful discrimination, bullying and harassment.
The right to join a union.
The right to raise concerns or make a complaint.
A fair process if your employer is considering disciplinary action, changing your employment, making your position redundant or dismissing you.
Some entitlements depend on factors such as how long you have worked, whether you work regularly, and the terms of your employment agreement. However, your employer cannot provide less than the legal minimum simply because you are a migrant.
Are my rights different if I am working on a visa?
Your core employment rights are not lower because you are on a visa. However, your visa may place conditions on where, when and for whom you can work. For example, depending on the type of visa you hold, it may specify the employer you can work for, the job you can perform, where in New Zealand you can work, the number of hours you can work, and/or how long you are allowed to work in New Zealand. These are immigration conditions rather than permission for your employer to ignore employment law.
Your employer should not require you to work in breach of your visa conditions. They must also not mislead you about the effect that raising an employment concern will have on your visa.
However, changing jobs or leaving your employment may affect your immigration position if your visa is tied to a particular employer. Before resigning or accepting another job, it can be important to obtain specialist immigration advice.
An employment advocate can advise you about your workplace rights. A licensed immigration adviser or immigration lawyer can advise you about your visa.
What can I expect from my employer as a migrant worker in New Zealand?
Your employer must give you an employment agreement
Every employee must have a written individual or collective employment agreement. Your agreement should clearly explain important matters such as:
Your job and duties.
Your place of work.
Your hours of work.
Your rate of pay.
How and when you will be paid.
Your leave entitlements.
How employment problems can be resolved.
Any trial or probationary period.
How your employment can be ended.
Your employer must give you a reasonable opportunity to obtain advice before you sign an employment agreement. They should not pressure you into signing a document that you do not understand.
Ask for a copy of every document you sign. If you do not understand the agreement, obtain independent advice or ask for help from someone who can explain it in your preferred language.
Be cautious if the agreement you receive is different from the job, pay or hours you were promised before arriving in New Zealand.
You must be paid correctly
Migrant workers must receive at least the applicable minimum wage for every hour worked, unless a lawful exemption applies. Your employer should keep accurate records of your hours, wages and leave. You should receive wage and time information showing how your pay has been calculated. Warning signs may include:
Being paid less than the minimum wage.
Being paid for fewer hours than you worked.
Having to work before or after your recorded shift without pay.
Being paid partly “off the books”.
Being told to return part of your wages to your employer.
Unexplained deductions from your pay.
Being charged unreasonable amounts for accommodation, transport, equipment or recruitment costs.
Having to pay money to obtain or keep your job.
Receiving a different wage from the amount shown in your employment agreement or immigration documents.
Keep your own record of every shift. Save your rosters, timesheets, wage records and bank statements. If your employer’s records are incorrect, your own records may help show what actually happened.
You have the right to a safe and healthy workplace
Your employer must take reasonable steps to protect your health and safety at work. This includes your physical and mental health. You should receive the information, training, supervision and equipment needed to do your job safely. Your employer should also take concerns about bullying, harassment, threats and unreasonable workloads seriously.
It may be a warning sign if your employer:
Asks you to perform dangerous work without training.
Does not provide suitable safety equipment.
Tells you not to report an accident or injury.
Threatens you after you raise a safety concern.
Uses racist, sexist or degrading language.
Allows customers, managers or co-workers to abuse you.
Gives you workloads or hours that create a serious health and safety risk.
You are allowed to raise health and safety concerns. Your employer must not punish you simply because you have spoken up about a genuine risk.
Your employer cannot use your visa to threaten you
A common form of migrant exploitation is an employer using a worker’s immigration status to control them. For example, an employer might say:
“If you complain, I will have your visa cancelled.”
“You have to work extra hours because I sponsored you.”
“You cannot leave this job.”
“You will be deported if you contact the authorities.”
“You must repay me for supporting your visa.”
Employers do not make the final decision about whether a visa is cancelled. Immigration New Zealand is responsible for immigration decisions.
An employer may be required to provide truthful information to Immigration New Zealand, but they cannot lawfully use threats, false information or your fear about your visa to force you to accept unlawful treatment.
Take immigration related threats seriously, but do not assume that everything your employer tells you is correct. Obtain independent advice.
What are the signs of migrant worker exploitation?
Exploitation can take many forms. It is not limited to physical violence or extreme working conditions.
Possible warning signs include:
You are not given an employment agreement.
Your actual job is different from the job you were promised.
You are paid less than agreed or less than the legal minimum.
Your employer keeps part of your wages.
You are required to pay a premium for your job.
Your employer keeps your passport or personal documents.
You are forced to work excessive hours.
You are denied breaks, holidays or sick leave.
You are provided with overcrowded or unsuitable accommodation.
Your employer controls where you live or who you speak to.
You are threatened with dismissal or deportation.
You are told not to speak to Immigration New Zealand, Employment New Zealand, a union or an advocate.
You are treated worse because of your race, nationality, ethnic background, religion or immigration status.
Your employer tells you that New Zealand employment law does not apply to you.
One incident may be enough to justify concern. You do not need to wait until the behaviour becomes extreme before asking for help.
What should I do if I am not being treated fairly?
Start by making a record of what is happening. Write down dates, times, who was involved, what was said and whether anyone witnessed it. Keep copies of relevant material, including:
Your employment agreement.
The job advertisement or offer.
Immigration and recruitment documents.
Rosters and timesheets.
Payslips and bank statements.
Emails, text messages and workplace messages.
Photographs of unsafe conditions or accommodation, where it is lawful and safe to take them.
Notes of meetings and conversations.
Keep copies somewhere your employer cannot access, such as a personal email account or secure device.
If it is safe to do so, raise the problem with your employer in writing. Clearly explain what has happened, why you believe it is wrong and what you want the employer to do. For example, you might ask the employer to correct unpaid wages, stop making improper deductions, investigate bullying or provide a copy of your employment agreement.
If you are worried about your safety or immigration status, get advice before confronting your employer.
Can I raise a personal grievance?
Migrant employees can raise personal grievances in the same way as other employees. A personal grievance may be available if you have been:
Unjustifiably dismissed.
Unjustifiably disadvantaged in your employment.
Discriminated against.
Sexually harassed or racially harassed.
Pressured because of your involvement with a union.
Treated adversely because you raised certain protected concerns.
Most personal grievances must be raised with the employer within 90 days of the action occurring or coming to your attention. A longer period generally applies to sexual harassment grievances.
A grievance does not have to begin with a formal legal document, but you must make the employer aware of the complaint and that you want it addressed. Because time limits are strict, it is wise to obtain advice promptly.
When can an employment advocate help?
An employment advocate can help when your problem relates to the way your employer is treating you at work. This may include:
Reviewing your employment agreement.
Checking whether you have been paid correctly.
Advising you about deductions, leave and working hours.
Helping you respond to disciplinary allegations.
Supporting you through a performance process.
Advising you about bullying, discrimination or harassment.
Raising a personal grievance.
Challenging an unfair dismissal or disadvantage.
Representing you in negotiations or mediation.
Helping you seek unpaid wages or compensation.
An advocate can also communicate with your employer on your behalf. This can be helpful if you are worried about saying the wrong thing, there is a language barrier, or your employer has used threats or pressure.
Mathews Walker are employment advocates. We can advise on the employment side of your situation, but we do not provide immigration advice.
When do I need specialist immigration advice?
You should consider speaking to a licensed immigration adviser or immigration lawyer if:
Your visa is tied to your employer and you want to leave your job.
You have been dismissed or made redundant.
Your employer has threatened to contact Immigration New Zealand.
Your job, location, pay or hours may not match your visa conditions.
You are considering changing employers.
Your visa is about to expire.
You are worried that you may have breached a visa condition.
You want to know whether your family’s visas will be affected.
You want advice about a Migrant Exploitation Protection Work Visa or another visa option.
You are concerned about deportation or your right to remain in New Zealand.
Sometimes you may need both employment and immigration advice. The two issues can overlap, but they are separate areas. Where possible, have your employment advocate and immigration adviser understand the steps being taken so that one process does not create an unexpected problem in the other.
FAQs
Can my employer pay me less because I am a migrant?
No. Your employer must pay you at least the applicable minimum wage and the rate agreed in your employment agreement. Your visa status does not allow an employer to pay you less than New Zealand law requires.
Can I complain if my visa is connected to my employer?
Yes. You still have the right to raise an employment complaint. However, leaving the job or changing employers may affect your visa conditions, so obtain immigration advice before making decisions about your employment.
Can my employer cancel my visa?
Your employer cannot personally cancel your visa. Immigration New Zealand makes immigration decisions. However, an employer may inform Immigration New Zealand that your employment has ended. Get specialist advice quickly if your employment or visa is at risk.
Can my employer keep my passport?
Your employer should not keep or control your passport. If your passport has been taken and is not being returned, seek urgent help. If you are unsafe or being threatened, contact the Police.
What if my employer makes me return part of my wages?
This is a serious warning sign. Keep records of the payments, messages and bank transactions. Do not sign false records. Speak to an employment advocate or Employment New Zealand about your options.
Can I be dismissed for making a complaint?
An employer cannot lawfully dismiss you simply because you raised a genuine concern about your employment rights. Any dismissal must be supported by a good reason and a fair process. If you are dismissed or threatened after complaining, seek advice immediately.
Where can I report migrant exploitation?
You can report suspected migrant exploitation through Employment New Zealand. Depending on your circumstances, you may also need assistance from Immigration New Zealand, the Labour Inspectorate or the Police. Information is available through the Government’s migrant exploitation guidance.
How quickly should I ask for help?
As soon as possible. Evidence can disappear, unpaid wages may continue to build up, and personal grievances usually have a 90-day time limit. Visa issues may also require urgent action.
You do not have to accept unfair treatment. Being allowed to work in New Zealand does not mean you owe your employer unlimited loyalty or must accept unlawful conditions. You have the right to be paid correctly, work safely and be treated fairly. If your employer is withholding wages, making threats, ignoring your employment agreement or using your visa to control you, ask for independent advice.
Mathews Walker can help you understand your employment rights and decide what steps to take with your employer. If your situation may affect your visa, we may also recommend that you obtain advice from a licensed immigration adviser or immigration lawyer. If you are having issues with your employer and are not sure what to do next, get in touch today for a free consultation.
MathewsWalker.co.nz | Employment Problems Solved | 0800 612 355
Disclaimer: The information provided in this blog is for general informational purposes only and should not be considered legal advice. While we strive to keep the information accurate and up to date, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability, or availability with respect to the blog or the information, products, services, or related graphics contained on the blog for any purpose. Any reliance you place on such information is therefore strictly at your own risk. For specific legal advice tailored to your situation, please contact a qualified legal professional. Immigration advice should be obtained from a licensed immigration adviser or immigration lawyer.
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