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Demande directe (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Convention (n° 29) sur le travail forcé, 1930 - Nouvelle-Zélande (Ratification: 1938)
Protocole de 2014 relatif à la convention sur le travail forcé, 1930 - Nouvelle-Zélande (Ratification: 2019)

Autre commentaire sur C029

Observation
  1. 2004
Demande directe
  1. 2023
  2. 2018
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The Committee takes due note of the Government’s first report on the Protocol of 2014 to the Forced Labour Convention, 1930, as well as its replies to the Committee’s previous comments on the Convention. The Committee also takes note of the observations communicated by BusinessNZ with the Government’s report.
Articles 1(1) and 2(1) of the Convention, and Article 1(2) of the Protocol. National policy and systematic and coordinated action. The Committee notes the Government’s detailed information concerning the implementation of the Plan of Action Against Forced Labour, People Trafficking and Slavery, 2020–25. The Plan of Action is framed under the three pillars of prevention, protection and enforcement, and is comprised of 28 actions. The plan takes a whole-of-government approach and emphasizes that effective partnership within and outside of government is required to ensure success. The development, delivery and implementation of the Plan of Action is supported by the Modern Slavery Plan of Action Reference, which meets biannually and is comprised of key government and non-government stakeholders, including the social partners and civil society organizations.
The Government indicates that it has committed to annual public reporting on the progress made in the implementation of the Plan of Action, which summarizes key achievements, areas for future work and upcoming milestones. The Committee notes in this regard, according to the 2022 implementation report, that the Ministry of Business, Innovation and Employment (MBIE) and/or Oranga Tamariki (OT, Ministry for Children) have conducted a number of qualitative and quantitative studies on exploitation and migrant workers and collected data on reports of concern which allege forced labour or slavery. According to the implementation report, more research has been commissioned in 2023, including an intelligence assessment to improve understanding of the people trafficking landscape in New Zealand. The Committee encourages the Government to pursue its efforts to implement the actions under all three pillars of the Plan of Action and requests it to continue providing information on the assessment of the results achieved and the possible obstacles identified. The Committee further requests the Government to provide information on efforts to improve areas for future work, as outlined in the annual implementation report of 2022. It also requests the Government to communicate the qualitative and quantitative data collected to provide a clear picture of the prevalence of all forms of forced labour in the country.
Article 1(3) of the Protocol and Article 25 of the Convention. 1. Prosecution and application of effective sanctions. The Committee recalls that penalties regarding trafficking and other offences related to forced labour, modern slavery and exploitation are set out in numerous pieces of legislation, including the Crimes Act, 1961, the Prostitution Reforms Act, 2003, and the Immigration Act, 2009. In particular, sections 98, 98(AA), and 98(D) of the Crimes Act, 1961, criminalize the acts of dealing in slaves and trafficking in persons, respectively and provide for penalties of imprisonment ranging from 14 to 20 years.
The Committee takes note of the statistics shared by the Government on the number of anti-trafficking cases registered from 2014–15 until 2020–21, disaggregated according to the legal provision concerned (various provisions of the Crimes Act, the Immigration Act, or the Prostitution Reform Act). The Government indicates that, in 2017–18, 2018–19, 2019–20 and 2020–21 there were 1,532, 1,371, 1,299 and 1,575 cases associated with human trafficking respectively. On average, convictions relating to all offences were obtained in 40 percent of cases, with the most common sentencing outcome being imprisonment. Regarding the application of section 98 (“dealing in slaves”), one case was registered in 2019–20, and of section 98(D) on trafficking specifically, five cases were registered in 2015–16; two in 2016–17; four in 2018–19; and one in 2019–20.
The Government indicates in this regard that crimes relating to internal human trafficking are investigated and prosecuted by New Zealand Police (NZP), both directly and upon referral from other agencies. The NZP reports that in some instances of criminal offending, officers may identify elements of trafficking in persons, for example sexual exploitation, but then ultimately charge and prosecute offenders under other crimes (that is, namely, sexual assault) for a variety of reasons, including the lack of resources required to detect, investigate and prosecute trafficking offences or the fact that trafficking charges may have higher evidential obligations than another relevant offence connected to the case. The Committee notes that, under the Plan of Action, actions are included to strengthen cooperation between enforcement agencies to support efficient and effective responses to enquiries relating to forced labour, people trafficking and slavery, and to continue capacity-building activities to support the prosecution of these offences. Observing the challenges faced by the law enforcement bodies to bring cases of trafficking to justice, the Committee encourages the Government to pursue its efforts to strengthen their capacity to identify, investigate, and prosecute all offences related to forced labour, including “dealing in slaves” and trafficking in persons, in order to hold the perpetrators accountable. It also requests the Government to continue providing information on the number of investigations, prosecutions, convictions and penalties imposed under the relevant provisions of the legislation that relate to trafficking, “dealing in slaves” and sexual exploitation, including sections 98 and 98(D) of the Crimes Act, 1961.
2. Enforcement of legislation relevant to the prevention of forced labour and strengthening of labour inspection. The Government indicates that it has in place legislative and policy instruments which have the purpose of preventing and protecting victims of exploitation in forced labour, with a particular recognition of the vulnerability faced by migrant workers. It indicates that MBIE’s Labour Inspectorate and Immigration New Zealand (INZ) work together to address the exploitation of migrants, including through focusing enforcement activity on the employer rather than the migrant. The Committee notes in this regard the Government’s information regarding the provisions of the Immigration Act, 2009, and of the Employer Relations Act, 2000, that address and penalize the exploitation of migrant employees. For instance, employers who exploit temporary migrant workers or migrant employees who are in New Zealand unlawfully, as defined under section 351 of the Immigration Act, face a jail sentence of up to seven years and/or a fine. Under the Employment Relations Act, employers that incur a penalty for a breach of employment standards face a set stand-down period preventing them from recruiting migrant workers for six months, one year, 18 months or two years, depending on the severity of the breach.
The Government highlights some key achievements of the Plan of Action, including the substantial increase of the enforcement capacity of INZ and the Labour Inspectorate due to increased funding; and the implementation of a Compliance and Enforcement Strategy designed in collaboration between INZ and Employment New Zealand (ENZ) with a view to improving collaboration to combat the exploitation of migrants. Moreover, the Committee takes note of the adoption of the Worker Protection (Migrant and Other Employees) Act which amends the Immigration Act, 2009, the Employment Relations Act 2000 and the Companies Act, 1993, by introducing a fit-for-purpose offence and penalty regime to deter employers of temporary migrant workers from non-compliance with their obligations and providing immigration officers and labour inspectors with increased investigative and enforcement powers. The Committee welcomes the measures taken by the Government to strengthen the capacity of INZ and the Labour Inspectorate to investigate and detect cases of labour exploitation of migrant workers. It requests the Government to provide information on the results achieved in terms of number and nature of cases detected and penalties applied to offending employers, as well as on remaining challenges faced by these authorities. The Committee also requests the Government to provide information on the application in practice of the new Worker Protection (Migrant and Other Employees) Act, including: (i) the new offence and penalty regime for offending employers; (ii) the nature of the increased investigative and enforcement powers attributed to immigration officers and labour inspectors; and (iii) the number and nature of cases detected.
Article 2(d) of the Protocol. Protection of migrant workers from fraudulent practices during the recruitment and placement process. The Government indicates that, in accordance with the Plan of Action, according to which it must “continue to develop information sources for migrants on their work rights and entitlements, including during the recruitment and placement process, and on where to seek support to protect themselves in exploitative situations”, a Temporary Migrant Worker Exploitation Review was established in 2020 to ensure that appropriate measures are in place to protect migrant workers in New Zealand. One of the measures taken in this regard is the introduction of the Accredited Employer Work Visa (AEWV), on 4 July 2022, with which workers may be employed by an accredited employer who must meet certain minimum requirements and commitments to be able to hire migrants. The Government also indicates that it has refreshed the information available on the website of INZ regarding trafficking, including new information about the visas available to victims of trafficking, as well as brochures translated into nine languages. Moreover, research was conducted by ENZ to better reach and protect migrant workers during their recruitment and placement process, which will inform future steps on how to better deliver information to migrant workers and their employers. The Committee encourages the Government to pursue its efforts to inform migrant workers on their rights and prevent them from being victims of fraudulent and abusive practices during the recruitment and placement process. It requests the Government to provide information on the functioning of the Accredited Employer Work Visa, as well as on the number of accredited employers and the number of workers who have successfully applied and the sectors of activity concerned.
Article 2(d) of the Protocol. Supporting due diligence by public and private sectors. The Committee observes that certain actions in the framework of the Plan of Action concern the prevention of forced labour through its elimination from supply chains. These include the new Government Employment and Procurement Rules (Rule 18A), adopted in October 2021, which require that public agencies take into consideration and target quality employment outcomes when procuring goods, services or works. The Government also indicates that, from April to June 2022, the MBIE undertook a consultation on modern slavery and worker exploitation, putting forward legislative and policy proposals that would require all New Zealand private entities to take actions addressing modern slavery and worker exploitation in their supply chains and operations.
The Committee notes in this regard the observations of BusinessNZ according to which it expresses concern at the suggestion that such obligations would apply to all New Zealand enterprises, and that SMEs are likely to lack both the expertise and wherewithal to pay for that expertise, to enquire closely into whether workers in their supply chains are experiencing exploitation. BusinessNZ also considers that many firms will lack the ability to carry out the kind of investigative exercises expected of them and that if the cost to do so proves prohibitive, the effect on productivity would be to their own workers’ detriment.
In this regard, the Government indicates that, while all entities would be required to take reasonable and proportionate action if they become aware of modern slavery and worker exploitation, the proposed law would introduce a graduated set of responsibilities in which larger entities would have to do more than the smaller ones, thus reflecting their larger capacity. More specifically, while medium entities would be required to disclose the steps they are taking to address modern slavery and worker exploitation, only large entities would be required to undertake due diligence to prevent, mitigate and remediate modern slavery and worker exploitation. The Committee welcomes these initiatives and requests the Government to provide more information on: (i) the application of Rule 18A in practice, in particular how it is enforced among agencies to create quality employment opportunities; (ii) the progress made in the MBIE consultations regarding the potential due diligence legislation; and (iii) the progress in the adoption of this legislation, as well as its application in practice once adopted.
Article 3 of the Protocol. 1. Identification of victims. The Committee notes the Government’s statement that it has policies and measures to ensure that high-risk industries are closely regulated or monitored, including the sex industry, horticulture, viticulture and aquaculture industries. The Government also indicates that ILO indicators on forced labour and trafficking are used by the Labour Inspectorate in New Zealand, such as unfair debt arrangements or excessive deductions from a person’s salary, including paying debts to employers/recruitment agents. In its annual implementation report of 2022, the Government declares that INZ continues to research and work to establish resources to set out a comprehensive identification and support system for victims of trafficking. The Committee requests the Government to provide more information on the measures taken to ensure high-risk industries are closely regulated and monitored, as well as statistical information on the number of victims of forced labour, including trafficking in persons for both sexual and labour exploitation, who have been identified. The Committee also requests the Government to provide more information on the progress made by INZ to develop its identification and support system for victims of trafficking.
2. Protection. Migrant workers. The Committee takes note of the several measures taken by the Government to ensure the protection of migrant workers who find themselves in exploitative situations. These include: (i) the New Exploitation Reporting tools, that is, namely. a dedicated reporting line and webform, which have allowed a significant increase in the number of reported cases of exploitation; (ii) the Migrant Exploitation Liaison Advisors, who support complainants who have reported exploitation and help them connect to community and support networks, as needed. According to the 2022 implementation report, MBIE’s review of the Principal Liaison service was expected to be completed by the end of 2022; and (iii) the Migrant Exploitation Protection Visa (MEPV), established on 1 July 2021, which aims to reduce barriers and increase incentives on temporary migrant workers to report exploitation. Workers can apply for this visa if they have an employer-supported work visa and have reported exploitation. If accepted, the visa is granted for up to six months. The Government states that approximately one in four reports have resulted in a visa letter being issued; as of 1 April 2022, 87 MEPVs had been granted. Welcoming the efforts made by the Government, the Committee requests it to continue to provide information on the measures taken to protect and assist migrant workers victims of any form of forced labour, including (i) the number of migrant workers who have benefited from support given by Liaison Advisors and the nature of the support received; (ii) the number of MEPV’s granted, the nature of complaints received and how each of them were resolved; and (iii) any other information regarding how migrant workers who do not hold work visas are given support.
Article 4(1) of the Protocol. Access to appropriate and effective remedies. Migrant workers. The Government refers to the Matamata case of 2020, in which the perpetrator of several counts of trafficking and slavery was ordered to pay reparations of $183,000 to all 13 of his victims, whose portions were determined by the High Court of New Zealand. The Government emphasizes that all victims, including migrants on lawful temporary visas and foreign nationals working outside the terms of their visa or on expired visas, have the same legal rights that may even be extended to those such as Matamata’s victims, many of whom were not legally entitled to work in New Zealand during the time that they suffered exploitation. The Committee requests the Government to provide information on the measures taken to assist victims of forced labour on the different options available to obtain compensation as well as on any challenges faced by the victims or the justice administration in this regard. Please also continue providing information on cases where remedies were granted to victims.
Article (2)(c) of the Convention. Sentence of community work. Regarding the Committee’s previous request for information on the type of work involved in community work, the Committee notes the Government’s information that section 63 of the Sentencing Act, 2002, outlines the types of organizations that may be used as placement agencies, such as hospitals or churches, charitable institutions, organizations for the elderly or disabled, any land owned by the Crown, or any local authority. The Government also indicates that community work can be done anywhere, such as in parks, schools, churches or marae (Māori meeting grounds), and can involve many activities, including painting, gardening, building, cleaning, or restoration.
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