Authority orders boss to pay his illegal immigrant worker

The Dominion Post 28 February 2009

For an employer to hire an immigrant worker in New Zealand, the worker is required to hold a work visa or work permit. It is an offence under the Immigration Act for an employer to hire a worker knowing they do not hold a valid visa or permit.

The situation becomes more complicated when an employer hires a worker in such circumstances regardless.

A recent case in the Employment Relations Authority highlights these issues.

In 2006 in Auckland, Glomax Super Tailors hired Ms Raju as a machinist.

Ramesh Lal, the owner, was well aware Ms Raju did not hold a work permit.

Ms Raju worked for Glomax until November 2006. She was required to work nine hours a day at a contracted rate of $10 an hour, which was below the minimum wage of $10.25 at the time. In reality, however, Ms Raju was simply not paid at all for the five months she worked for Mr Lal.

Ms Raju lodged a written complaint with the Labour Inspectorate of the Labour Department, which investigated and took the employer to the Employment Relations Authority.

Although Ms Raju did not hold a work visa throughout her employment at Glomax, the authority commented that, as a matter of public policy, any employee working in New Zealand, irrespective of work visa status, is entitled to the protection of the Employment Relations Act and related employment legislation.

The authority ordered payment of more than $10,000 in wages and holiday pay and a $3000 penalty to the Crown for the failure to keep and provide wage and time records.

It appeared Glomax was not prosecuted for hiring an employee without a work visa.

The Immigration Act, which is also administered by the Labour Department, not only makes it an offence to hire a worker without a work visa, it also makes it an offence to hire them and not provide them with the minimum standards of employment. The law effectively says: "Don't do it, but if you do, pay the migrants correctly". Although this may seem fair, under the Immigration Act there is no offence for the employee to work without a permit. The act says the migrant worker must have a permit, but provides no consequences for the worker if they work without one.

By contrast, in Britain, no such protections are provided for illegal immigrants because its Government says it would "create a pull factor for illegal immigrants".

In the current economic climate, the number of unemployed has risen to 105,000, and is projected to keep rising.

New Zealand issues about 150,000 work permits and work visas a year and runs several schemes to boost this number.

The Labour Department's Recognised Seasonal Employment scheme targets "staff shortages" in the horticulture and viticulture industries to allow temporary entry for workers recruited from overseas.

Recently, hundreds of cellarhands have been recruited to help out with this year's wine vintage; most of these workers are from overseas, particularly from Europe.

Although New Zealand seems to be happy to recruit from overseas, Britain has just tightened the restrictions on foreign workers from outside the European Union to increase the chances for British jobseekers at a time of rising unemployment.

Britain has closed entry to non- skilled workers and increased the requirements for skilled workers.

The tightening job market is putting a renewed focus on the use of overseas workers.

In New Zealand, the unemployment rate is rising, but we continue to welcome foreign workers into the country and provide employment protection for those who work despite not having a work visa.

Ms Raju's situation invokes sympathy as she was clearly taken advantage of. However, she was illegally working in New Zealand for five months, and received a $10,000 award from the Employment Relations Authority on a case taken and funded by the same department responsible for immigration laws. It may seem a bit rich that a person works here illegally and then has the Labour Department act on her behalf to recover wages for that illegal work.

This case highlights many significant political issues for readers and the politicians.

Peter Cullen is a partner at Cullen - the Employment Law Firm

Email: peter@cullenlaw.co.nz