Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

1. Provision of information – legislation. The Committee notes that the removal system for persons unlawfully present in the country is being reviewed in the context of proposed new legislation on immigration. The Government states that as a response to the changing trends in migration, a thorough review of the Immigration Act of 1987 is under way. The Committee asks the Government to provide copies of the new immigration legislation, once adopted.

2. Articles 2 and 3. Information and assistance – measures against misleading propaganda. The Committee notes that according to the NZCTU, the Government’s measures to license immigration consultants operating in New Zealand do not address the concerns expressed by some unions such as the New Zealand Nurses Organisation and that more needs to be done to improve the provision of information to migrant workers before they come to New Zealand. While noting that New Zealand has excluded Annex I, the NZCTU nevertheless requests the Government to examine possible arrangements with overseas governments to monitor and regulate the practices of immigration and recruitment agencies. The Government indicates that the Immigration Advisers Act requires both New Zealand-based immigrant consultants and overseas immigration consultants, as well as recruitment agencies which offer immigration advice and services to register with the New Zealand Immigration Advisers Authority; this is not required from agencies that confine their activities to recruitment only. The Committee recalls the Government’s obligations under Articles 2 and 3 of the Convention to take steps against misleading propaganda regarding the migration process and to provide migrant workers with accurate information. Recalling also that cooperation between migrant-sending and migrant-receiving countries may prove the most effective way of ensuring that migrants are recruited under non-abusive and non-exploitative conditions, the Committee asks the Government to provide information on the specific measures taken or envisaged in this regard.

3. Facilitating access of migrant workers to skilled jobs. With regard to the difficulties of some migrants to take up the work for which they are qualified, the Committee notes the Government’s statement that in order to work in New Zealand in a number of occupations, all people are required by law to hold a relevant occupational registration. Applicants can have their overseas qualifications evaluated by the Qualification Recognition Services of the New Zealand Qualifications Authority, which establishes the nearest comparable qualification. Business New Zealand states in this regard that, recognition of professional qualifications aside, the difficulties experienced by some professionally trained migrants often arise from the reluctance of relevant professional bodies to admit them to membership, with the consequence that they are unable to practice in the country. Recalling Paragraph 10(b) of the Migration for Employment Recommendation (Revised), 1949 (No. 86), the Committee asks the Government to indicate whether any vocational training is offered to migrants to enable them to obtain the qualifications required for a particular occupation, and the measures taken to address the reluctance of professional bodies to admit migrants to their membership.

4. Women migrant workers. In reply to its previous comments, the Committee notes the Government’s statement that most of the female migration is accounted for by the “family sponsored” migration stream and that in all categories male migrants continue to slightly outnumber female migrants. The Committee draws the attention of the Government to the fact that the “feminization of migration” refers to the reality that an increasing number of women are migrating to seek employment for themselves and that often by the very nature of the work they undertake or due to past discrimination in the labour market and society, they may face inequalities compared to their male counterparts, foreign or otherwise, relating to working and living conditions, social security, work-related taxes and access to justice. The Committee notes that the Government is undertaking a “Longitudinal Immigration Survey: New Zealand” which is surveying the settlement experiences of refugees and migrants to New Zealand, including in the areas of jobseeking, learning English and accessing health services. The Committee hopes that the survey will take into account the specific experiences of and obstacles faced by women migrant workers, and asks the Government to provide a copy of the survey, once completed. Please also provide information on any measures taken to address particular difficulties faced by women migrants with respect to the matters enumerated in subparagraphs (a)–(d) of Article 6(1).

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the comments by the New Zealand Council of Trade Unions (NZCTU) and of Business New Zealand (Business NZ) attached to the Government’s report, as well as the Government’s reply thereto.

1. Articles 4 and 5 of the Convention. Measures to facilitate reception of migrants and adequate medical attention. The Committee notes the comments made by the NZCTU that greater health support and resources for refugees are needed to enable certain migrants, especially refugees, to recover substantially from the effect of previous injuries, illness and trauma before being engaged in job search activities. The NZCTU also draws attention to the high number of women refugees suffering from post-traumatic stress disorder as well as physical injuries and illness as a result of previous ill-treatment. The NZCTU further maintains that the New Zealand Settlement Strategy mainly focuses on migrants from Asia and recent refugees but does not mention those coming from Africa. The Committee notes the Government’s reply that government-funded assistance, provided directly or purchased from service providers, caters for the needs of all migrants and refugees, including those from Africa, provided they have permanent residency. The New Zealand Settlement Strategy recognizes that certain migrants and refugees may require additional assistance, especially in the early stages of settlement. The Committee recalls that Article 5(b) of the Convention aims to ensure that migrant workers and members of their families enjoy adequate medical attention and that services are available for them to consult should they so require. Paragraph 12 of the Migration for Employment Recommendation (Revised), 1949 (No. 86), also provides that steps should be taken where necessary to ensure that special facilities are made available during the initial period of settlement in the country of immigration. The Committee asks the Government: (1) to provide further details on the type of additional assistance that may be given to certain migrants and refugees, in particular women and migrants coming from Africa; and (2) to indicate whether any measures are being taken or envisaged to provide special services upon arrival and during the initial settlement stage to enable migrants, especially women refugees, to recover from previous illness and trauma due to ill-treatment before engaging in job search activities.

2. Article 6(1)(b). Equality of treatment with respect to social security. The Committee notes that the NZCTU, while welcoming the Government’s new Recognized Seasonal Employment (RSE) Scheme, raises some concerns that there is no obligation for employers to provide medical insurance for their foreign workers under this scheme. Greater clarity is therefore needed with respect to the responsibility for costs of medical treatment for participants in the RSE Scheme, and for temporary migrant workers in general. The Committee notes that the RSE Scheme was introduced in April 2007 to meet the labour needs of the horticulture and viticulture industries and permits workers to enter New Zealand for a seven‑month work period in any 11-month period. However, apart from the costs arising from accidents and injuries under the universal Accident Compensation Scheme, the RSE Scheme does not appear to provide any social security benefits. Seasonal workers, according to the NZCTU, also appear to pay income tax at the same level as permanent residents, but do not have equal access to full public health services due to the residency requirement of two years for entitlement to access to publicly funded health services. While they may have the opportunity to return to New Zealand the next season for a seven-month period of work, they nevertheless seem to be excluded forever from accessing social security benefits and thus would not be treated on an equal footing with nationals or permanent residents with respect to social security. The Committee recalls that Article 6(1)(b)(ii) of the Convention allows certain limitations to the principle of equal treatment such as special arrangements concerning benefits payable wholly out of public funds. However, these arrangements cannot be interpreted as providing a legal basis for permitting the automatic exclusion of a category of migrant workers from qualifying from social security benefits (see paragraph 431 of the General Survey of 1999 on migrant workers). The main purpose of the exceptions permitted under the Convention is to prevent possible abuses and to safeguard the financial balance of non-contributory schemes, rather than depriving certain categories of migrant workers, i.e. workers under the RSE Scheme, from rights derived from the Convention. The Committee notes that the RSE Scheme will be reviewed by the end of 2007 and that the Government may propose that medical insurance cover be made compulsory if significant health risks are indicated. The Committee asks the Government on the occasion of the revision of the RSE Scheme to reflect on possible special arrangements allowing seasonal workers to access on an equal footing with nationals and permanent residents the benefits ensured by Article 6(1)(b) of the Convention, and to report on the progress made.

3. Further to the above, the Committee recalls its previous comments in which it noted that section 74A(1) of the Social Security Act, No. 136 of 1964, as amended, might exclude some temporary permit holders from accessing any cash benefits, including emergency benefits. The Committee notes the NZCTU’s comments that despite paying income taxes, temporary workers do not have access to full public health services. They generally have access to accident and emergency care but may be subsequently charged for these services. The Committee notes the Government’s explanations that all workers who have permits enabling them to be in New Zealand for two years or more are entitled to access publicly funded health-care services. The ordinary residency requirement of two years before becoming eligible for cash benefits, other than the emergency benefit, applies to all prospective beneficiaries and includes, for example, New Zealand citizens by descent, who must have lived, at some stage, in New Zealand for two years to be eligible to access standard income support. The Government further states that these types of social security benefits are paid entirely from public funds and the acquisition of the right to such benefits is entirely dependent on a permanent commitment to New Zealand. However, anyone who is acutely unwell must be treated, regardless of immigration status, eligibility for publicly funded health care or ability to pay. The Government confirms, however, that migrant workers who have chosen not to take out medical insurance to cover for sickness would be charged for the health services they use. The Committee recalls its comments under paragraph 2 of this observation as well as the fact that the imposition of residency requirements is not contrary to the Convention, in so far as this condition is applicable also to nationals of the State, which does not appear to be the case. The Committee considers that the qualifying period of two years for migrant temporary workers to access social security benefits may put them in a less favourable position as compared to nationals and permanent residents. It, therefore, asks the Government to provide explanations as to the reasons for fixing a two-year qualifying period for entitlement to access to publicly funded health-care services.

4. Article 6(1)(a)(i). Equality of treatment with respect to conditions of work. The Committee notes that the NZCTU raises concerns regarding migrant workers who had apparently paid large sums to recruitment agencies in Thailand before coming to New Zealand for horticulture work and who complained about being required to work 60–70 hours per week without days off and being paid the minimum wage. The NZCTU also refers to below minimum wages being paid to migrant workers in horticulture and viticulture, in food service, and other services industries. The workers seldom make a formal complaint and their legal status is not known but it is suspected that some work illegally or on a limited work permit which could be revoked, a type of situation which makes it more difficult for the workers to seek information or to complain about exploitation. The Committee notes the Government’s reply that breaches of employment legislation and regulations, including payment of wages which are below the minimum wage, are actively investigated; employers are liable to recovery and penalty action, irrespective of whether the employees affected are migrant workers or nationals. The Committee asks the Government to examine the situation of migrant workers in the horticulture and viticulture sectors as well as in the food and other services industries with a view to addressing possible situations of abuse with regard to working conditions and unpaid wages. Please also provide information, disaggregated by sex, on any violations detected or complaints received by the labour inspectorate and any decisions handed down by courts or other tribunals involving violations of Article 6(1)(a)(i).

5. Discriminatory attitudes of employers limiting employment options for migrants. The Committee notes that the NZCTU raises concerns regarding employers’ prejudices vis-à-vis migrants from countries with a primary language other than English as well as migrants whose appearance and name signal foreign ancestry. The NZCTU refers to surveys conducted with employment agencies showing that a foreign sounding name could reduce the likelihood of a job applicant being able to get a job interview. While government and community services are working with migrant groups to provide work experience opportunities and to enhance language skills, more work needs to be done to encourage employers to overcome their prejudices against migrant workers. The Committee, concerned that these alleged employers’ prejudices result in direct and indirect discrimination of migrant workers in employment, draws the attention of the Government to its comments on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).

The Committee is raising other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the information supplied in the Government’s report and the comments of the New Zealand Employers’ Federation contained in the report.

1. The Committee notes the adoption of amendments to the Immigration Act, 1987, which aim, inter alia, at improving the effectiveness of the removal regime for persons unlawfully present in New Zealand. The Committee also notes the adoption of the Employment Relations Act, 2000, that extends the prohibited grounds of discrimination in employment. The Committee asks the Government to provide detailed information on the implementation of the new provisions of law or regulations adopted. It also would be grateful if the Government would state how the current trends in migration flows have affected the content and implementation of its national migratory policy and legislation.

2. Article 6 of the Convention. Recalling that under paragraph 1 of this Article, every State which has ratified the Convention undertakes to apply, without discrimination in respect of nationality, race, religion or sex, treatment no less favourable than that which it applies to its own nationals in respect of the matters enumerated in subparagraphs (a) to (d) of this Article, the Committee would be grateful if the Government would indicate the measures taken or envisaged to ensure that women migrant workers are treated on a par with their male counterparts, foreign or otherwise, in respect of working and living conditions, social security, work-related taxes, and access to the justice system - in view of the growing feminization of migration for employment (see paragraphs 20-23 and 658 of the General Survey of 1999 on migrant workers).

3. Article 6, paragraph 1(b). The Committee refers to its previous direct request concerning the right of migrant workers to equal access to social security. The Committee notes that section 74 A(1) of Social Security Act, No. 136 of 4 December 1964, as amended in 1991, 1993 and 1999, provides among other things that a person who holds a temporary work permit or a limited purpose permit will not have the right to receive cash benefits, although an emergency benefit can be paid on the grounds of hardship. The Committee notes from the Government’s report that, in order to be granted an emergency benefit, the applicant, who does not have permanent residence, must be lawfully present in New Zealand and be awaiting the outcome of his/her application for refugee status in New Zealand; must have refugee status in New Zealand; or must be applying for a residence permit under the Immigration Act, 1987, and be compelled to remain in New Zealand through unforeseen circumstances. Applicants who have a temporary permit may not qualify if they do not meet the above criteria. The Committee notes these distinctions and the possibility that some temporary permit holders may not have access to any cash benefits and thus would not be treated on an equal footing with respect to New Zealand citizens or permanent residents in New Zealand.

4. In this respect, the Committee would like to draw attention to the preparatory work to the adoption of the Convention, which makes it clear that the Convention covers all migrant workers, both those with permanent and temporary residence status, and that Article 6(1) of the Convention stipulates that States should apply to immigrants lawfully within their territory, treatment no less favourable than that applicable to its own nationals, in respect of certain matters, including social security (see paragraph 431 of the General Survey of 1999 on migrant workers). The imposition of residency requirements is not contrary to the Convention, in so far as this condition is applicable also to nationals of the State, which would not appear to be the case. The Committee therefore hopes that the Government will provide information on the measures taken to ensure that its legislation in this regard is in conformity with the Convention and that it will supply information in its next report on the application of Article 6(1)(b) to temporary permit holders.

5. The Committee notes the New Zealand Employers’ Federation comment according to which some migrants to New Zealand, who gain residence on the basis of their work-related skills, subsequently find it extremely difficult to take up the work for which they are qualified. The alleged reason is that occupational licensing rules require such migrants to re-establish their credentials by sitting for further examinations in the country, which in practice may prove to be difficult. The Committee would be grateful if the Government would provide information on any measure it has taken to facilitate access of migrant workers to skilled jobs such as, for example, recognition of occupational qualifications acquired outside the country.

6. The Committee asks the Government to continue to provide information on New Zealand nationals working abroad, and the countries of origin of foreigners employed in New Zealand and to communicate the results, if any, of the relevant activities of the labour inspection service, in accordance with the provisions of the Convention.

7. Finally, the Committee asks the Government to state whether courts or other tribunals have handed down decisions involving questions of principle relating to the application of the Convention. If so, please supply the text of these decisions.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee takes note of the information supplied in the Government's report. It also notes the information provided by the Government in the context of the application of the Unemployment Provision Convention, 1934 (No. 44).

Article 6(b) of the Convention. The Committee notes that section 74A(1) of Social Security Act, No. 136 of 4 December 1964, as amended in 1991 and 1993, provides amongst other things that a person who holds a temporary work permit will not have the right to receive cash benefits; however, the Director-General of Social Security may, in certain circumstances, grant an emergency benefit under section 61 of the Act or a special benefit under section 61G of the Act.

The Committee asks the Government to indicate the manner in which section 74A(1) of the 1964 Social Security Act is applied in practice and in particular to state whether all persons who hold a temporary residence permit, regardless of the duration of their stay, may be barred from entitlement to cash benefits.