Slave to fear

by Sally Blundell / 21 January, 2016
Restaurant employee Rohit Sharma was working more than 70 hours a week for 30 hours’ pay: “We were working like slaves.” Photo/Joseph Johnson

Debt and the threat of being sent home can lock many migrant workers into virtual slavery.

Newly arrived from India, 22-year-old Rohit Sharma had his life sorted. He was studying business administration in Christchurch while working part-time for ethnic food outlet Taste of Egypt. With a media degree already under his belt, he was confident of a good future.

When his course finished, he moved to Richmond, near Nelson, to work full-time for the branch there. From then, life went downhill. Fast.

Sharma and co-worker Gurpreet Singh had to work more than 70 hours a week, but were paid for 30. They had no social life, no friends and they never saw their neighbours.

“We were working like slaves,” Sharma says. “[Our employer] never respected or ever appreciated us. Most of the time he was just shouting.”

The employer even put a camera in the shop by which, according to Sharma, he could monitor staff performance. “He’d be sitting there at home watching us clean and do everything and when we stopped for 10 minutes he would ring us up and say, ‘Why aren’t you working?’”

According to the Ministry of Business, Innovation and Employment (MBIE), the employers also pressured workers to sign false documents by threatening that they would lose their jobs and visas.

Sharma says he didn’t complain because he didn’t want to be sent home and he didn’t want his family to know. It took a neighbouring business to raise the alarm. Taste of Egypt (the Nelson branch was sold three months ago and is now run by new owners under a different name) conceded that “certain money is due” but disputed the amount. In November last year, the Employment Relations Authority ordered Taste of Egypt Ltd to pay the workers $68,000 and a penalty fee of $20,000 for not paying annual leave or public holidays and for failing to maintain individual wage, time and leave records.

In a statement, Labour Inspectorate regional manager Kevin Finnegan said, “This ruling sends a clear message to employers that failure to comply with the minimum labour standards will not be tolerated.”
Steph Lambert. Photo/Simon Young

It couldn't happen here

Stories of exploitation, forced labour, trafficking, even slavery have long rattled down our supply chains from other parts of the world. But as Steph Lambert of Justice Acts New Zealand says, we have been reluctant to believe that the exploitation of migrant workers happens here.

“New Zealand is so far away from anywhere and we are extremely trusting. It is not within our psyche to think this would be happening here and because of that, no one is looking for it.”

That, she says, is starting to change. Last year, former restaurant bosses Joti Jain and Rajwinder Grewal were sentenced to 15 months’ home detention and ordered to pay more than $62,000 in reparations for immigration and exploitation offences related to four workers in their Masala restaurants in Auckland (there are other restaurants with that name not associated with this chain). Former employee Gagan­deep Singh said in a court statement that he worked as much as 11 hours a day, sometimes seven days a week. His life, he said, was “hell”.

In 2014, the Little Saigon restaurant in Christchurch was ordered to pay former employee Vu Nguyen $175,000 in wages unpaid over four years. Nguyen and his brother Bao lived in the owner’s garage, worked 66 hours a week without pay and ate in the restaurant – they were fired for not having washed a tablecloth.

The stories pile up. Filipino construction workers whose pay is cut to the bone by unexpected deductions; Fijian orchard workers paying $80 a week to sleep on a garage floor; migrant dairy workers sustaining the long hours of the peak season throughout the year.

The last annual Trafficking in Persons report published by the US State Department in July 2015 found that migrant workers in New Zealand, in particular people from China, India, the Philippines, the Pacific, South Africa and the UK, are at risk of forced labour in the agriculture, horticulture, viticulture, construction, hospitality and domestic work sectors.

Although New Zealand retains the highest tier 1 ranking, the report points to excessive and escalating recruitment fees, unjustified salary deductions, non- or under-payment of wages, excessively long working hours, restrictions on movement and altered contracts. A small number of girls and boys, it says, “are at risk of sex trafficking in street prostitution, and some are victims of ­trafficking in gangs”.

The 2014 Global Slavery Index (GSI), published by the Australia-based Walk Free Foundation, goes further. Using a questionable extrapolation of data from 65 countries, its 2014 report says 36 million people are held in modern slavery worldwide – 15 million more than the International Labour Organisation (ILO) estimate. Of these, it says, 600 are in New Zealand.

Such assertions have to be read within the changing concept of slavery. The ILO defines forced labour, bonded labour, debt labour (in which labour is given as collateral for often-escalating credit), trafficking and some forms of child labour all as forms of modern slavery. As Christina Stringer from the University of Auckland’s Management and International Business department says, worker exploitation falls along a continuum “from contract abuse to forced labour, even slavery”.

At the more serious end of the spectrum are force, fraud, abuse, deception, coercion and barriers to leaving a job. She gives examples of employers confiscating passports, limiting employees’ movement outside work hours and threatening them with deportation if they leave or complain. As she notes, “It is crucial to take account of all stages, from recruitment to exit, to understand fully unfree labour in labour and global value chains.” Suddenly the GSI estimate of 600 doesn’t seem so preposterous.

“If we look at the fishing industry, you could come up with 1100-1200 people straight away,” says Peter Mihaere, founder of New Zealand Baptist justice initiative Stand Against Slavery. “If that is one industry, flip, that number is miles out already.”

Fishy business

In 2010, the Oyang 70, owned by the South Korean Sajo Oyang Corporation and chartered to New Zealand-based Southern Storm Fishing (2007) Ltd, sank in New Zealand waters, claiming the lives of an officer and five crew members. Stringer and her ­colleagues at the University of Auckland and local media started to look into conditions on the trawler and on other overseas-owned foreign charter vessels (FCVs) used by New Zealand companies. Their investigations uncovered a rat’s nest of abuses: unpaid wages, poor healthcare, rationed food, 18- to 20-hour working days, illegal deductions, curtailed movement, and physical, verbal and sexual abuse.

One interviewee described being so sleepy after a long shift he slipped down stairs: “[I] reached out to steady myself, but touched a Korean officer. … He punched me in the back of my head, then punched me another six times in the face. My nose was bleeding, eyes very painful, head really hurt. [I had a] swollen face, one eye bleeding and could only see blurry.” Another reported a Korean officer repeatedly raping a colleague “beneath my bunk, many times on each trip”.

The subsequent ministerial inquiry resulted in a requirement, that comes into force in May, that all FCVs be New Zealand-flagged and so comply with our health and labour laws. But although four Oyang officers have been fined for dumping quota fish, and legal actions for compensation for unpaid wages are under way, no trafficking or worker exploitation charges have yet been brought.

How has this situation arisen? The University of Auckland’s Glenn Simmons blames the industry’s “flawed reliance” on self-­regulation and the demand for cost reductions by First World markets.

“It is a race to the bottom,” he says. “Whoever can be the cruellest and cut the most costs gets there first. They can’t trim on fuel or vessels or fees and levies. The biggest component of cost is labour, so that’s the first to go.” And fishing, he says, is an out-of-sight, out-of-mind industry. The public can’t walk past, the police can’t drive past, employees can’t go home each night and talk to friends, family or the local member of Parliament.

Although the new law is laudable, he says, it must be supported by good oversight.

“FCVs should not be allowed to leave port unless they have 24/7 observer coverage. A condition of an operator’s licence should be they pay for that. And where observers put in a report that there is an issue, it should be rigorously followed up. If this new law is being paid lip service by these operators, we are going to be back in five or 10 years with the same problem or worse.”

Rohit Sharma. Photo/Joseph johnson

Help wanted

Across a range of occupations, our reliance on migrant workers continues to grow. In 2014/15, the Government approved 186,000 work visas, about twice as many as a decade earlier. Within the dairy industry, migrants on temporary work visas make up 10% of the national workforce. Of these, about half are from the Philippines. As our dairy industry grows, and as New Zealanders show an increasing reluctance to leave the cities for work, more overseas workers are expected to fill the gap.

The results vary. Last year, MBIE found that 19 of a group of 29 dairy industry employers visited were breaking employment law. Although most breaches related to poor record-keeping, several farms were paying well below the minimum wage and estimated arrears were more than $120,000.

Lambert’s report describes migrant dairy workers confronted by unexpected salary deductions, contract changes, restrictions on movement and poor accommodation. Isolated from advice and support, they don’t know their rights and they are terrified of losing their jobs.

In a rambling Canterbury farmhouse, farm operations manager Roberto Bolanos recalls arriving from the Philippines 10 years ago. Filipinos he met were keen to work in the dairy industry but struggling to pay back debts of between $10,000 and $15,000 –   often borrowed at crippling interest rates – incurred to cover the cost of documentation, travel, medical certificates and recruitment fees. “So the Filipino arriving on a farm has this huge financial and psychological burden. He has no choice but to work hard for ­several years to pay off his debt and support his family.”

For some, that burden only gets heavier. Bolanos knows of  migrant workers not getting annual leave, paying income tax on accommodation reimbursements, working excessive hours and being employed, as one farmer put it, “to do all the shit jobs”.

“Whether he is treated well or not,” says Bolanos, “he might not move, because that will require him to file for another visa which might get him into trouble with immigration and sent back home. He just won’t risk it.”

The ongoing fiasco over falsified documentation used to support visa applications by Filipino dairy workers is due in part at least, he says, to a single sentence in immigration requirements: “Two years’ dairy-farming experience”.

“New Zealand dairy farming is unique. They might issue a visa to a worker from the Middle East who worked for a big factory farm – first week on the job he is in trouble because he has only worked to inseminate cows. No grass, no irrigation, doesn’t even know how to milk.”

Filipinos might not have extensive dairy farm experience, he says, but “they are cropping and livestock farmers – they know land, they know animals.”

Take that sentence out, he says, “and there would be no need to fake certificates”.

In partnership with his New Zealand employer, Bolanos is now looking to set up a dairy farm training centre to educate Filipino migrants on working rights and customs in New Zealand and to introduce Kiwi farmers to Filipino culture. “Farmers want to learn more about their workers and Filipinos need to understand how Kiwis think and behave.”

Government response

From our fields, orchards and vineyards, reports of long working hours, high rents and cramped living conditions appear with worrying regularity. In 2007, the Government introduced the Recognised Seasonal Employers (RSE) scheme to facilitate the temporary entry of overseas workers for these industries and to ensure migrant workers are employed on the same terms and conditions as New Zealand workers. A 2010 report on the scheme, describing costly accommodation, overcrowding and fear of making complaints, was a reflection of early “teething problems”, says Horticulture New Zealand spokesperson Leigh Catley.

“Horticulture would have been at the top of the [Trafficking in Persons] list 15 years ago. It isn’t now.” Exploitation, she says, is more likely to occur in the informal, even illegal, sector.

“There are employers who are not RSE employers who use labour from other sources. They won’t be bringing workers in – they’ll use people already here, people on student visas who don’t end up doing as much study as you’d expect.”

Such cases could be shrugged off as overseas students stretching the legal limits of their visas to earn some quick cash. They could be left to fester simply because, as with the dairy and fishing industries, they are out of sight out of mind for many New Zealanders. But the impact of the increasing casualisation of our workforce and our growing reliance on migrant contract labour is becoming harder to ignore.

Closer to our urban homes, the transport industry is experiencing a growing shift towards the use of owner-drivers. For many migrants, says Peter Gallagher of the professional drivers’ association ProDrive, transport jobs appear an easy and lucrative option. “People are drawn into the sector by a rosy picture of being an independent contractor: flexibility of hours, good income, blue-chip company, good lifestyle.”

Some courier contractors, he says, are offered a pay rate based on a fixed schedule of pickup and delivery rates or a guaranteed daily minimum rate, whichever is the greater. It sounds good but, as Gallagher says, built into the schedule of rates may be undisclosed codes related to other, far lower rates for particular clients. And once you take out the repayments on a $50,000-$200,000 loan for a vehicle, insurance and running costs and the cost of a relief driver “because you can’t work seven days a week”, drivers on a minimum pay rate find themselves working long hours for a take-home pay packet of less than the Government-set minimum wage.

These so-called independent contractors, says Gallagher, quickly find themselves trapped in a “master-slave relationship” in which the transport company holds all the power. Pay rates can be changed, cost models reviewed. Drivers cannot accumulate goodwill, their vehicle is branded with the name of the contracting company and they are reluctant to complain for fear their contract will be terminated.

New migrants, he says, are the most vulnerable. “They are unfamiliar with the culture, unfamiliar with the law and they generally don’t understand their contracts. They are under enormous financial and emotional stress, they are mortgaged to the hilt, they are firmly under the dictates of the company and they are terrified.”

And the costs are huge as drivers hit the road at the end of a 13-17-hour day or are put into the “invidious position” where they have to cut costs on vehicle maintenance.

“International research shows when you use remuneration as a downward lever and you are taking food off the tables of your drivers to achieve cost efficiencies then you are proportionately increasing the danger to public safety.”

Rex Gibson, formerly of the Migrants Centre Trust. Photo/Martin Hunter

Wild west

In Christchurch after the quakes, the demand for construction workers quickly exceeded local supply. Between 2011 and 2015, Immigration New Zealand approved 5614 temporary work visas linked to the rebuild. Of these workers, more than 2500 came from the Philippines.

As one commentator says, it was a “wild west” scenario as recruitment agencies charged exorbitant placement fees and travel costs and new arrivals were confronted by overcrowded housing (in one case paying $180 a week for a third of a bedroom), unexpected deductions, harsh exit penalty clauses, altered contracts and no guarantee of ongoing work.

Rex Gibson, formerly of the Christ­church Migrants Centre Trust, describes it as “old-fashioned feudalism”. Once employers bring workers in, “the workers then owe those employers money so they have to keep working to pay that off. The ­employers put them into a house and can charge exorbitant rent so workers’ net pay keeps coming down and down. It isn’t the worst level of human trafficking but it is something that leaves most New Zealanders feeling uncomfortable.”

Blame is laid with labour agencies ducking their responsibility as ­employers. One builder, who did not want to be named, described an agency hiring workers out to a contractor – if that contractor or sub-contractor folded or if work dried up, the workers were left with no income. They still had the debt. They still had to pay rent. As Labour Inspectorate general manager George Mason says, the rules are clear: recruitment companies should have migrant workers on their books as employees, “but some haven’t always been clear about that”. When the labour supply chain is long, says Mihaere, it’s easy for employers to look the other way.

“If you ask a farmer or a construction manager, they’ll say, ‘Not my problem. I take the labour given to me, I pay the recruiter however much I’m supposed to pay.’ So from their books it looks squeaky-clean. But I don’t think that’s a Kiwi-acceptable answer any more. If you have a worker who is being exploited, whether they are being exploited by you or by the recruiter is irrelevant.”

Again, workers are reluctant to complain. Gibson cites fear of deportation, mistrust of Government officials and legal processes that may outlast a visa anyway. And as Leighs Construction’s Anthony Leighs says, for a construction worker in the Philippines, getting a job in New Zealand is like winning the lottery.

“These guys traditionally work inter­nationally and the going rate in the Middle East, Asia or Americas is generally around US$1000 a month. Coming to New ­Zealand is probably four times that, but that opens them up to huge exploitation.”

Efforts are being made to tame the wild west. The Philippines Government has introduced a new policy that prevents recruitment agencies in that country from charging or collecting recruitment and placement fees from workers (although, as Bolanos says, they can still charge “processing fees”). Already, through its Philippine Overseas Employment Administration (POEA), a government agency overseeing recruitment agencies, it has imposed temporary suspensions on agencies, including the Philippines-based Sacred Heart International and its New Zealand counterpart Business Immigration, for charging excessive fees. The POEA also found Filipino entity the Kiwi Assess Skills Assessment Centre to be recruiting Filipino workers for New Zealand without authority.

ProDrive’s Peter Gallagher.

Waking up to the problem

If New Zealand has been caught napping over the past decade, we are now scrambling to protect some of our most vulnerable workers. Visas for some occupations have been extended from one to three years; migrant workers involved in the Canterbury rebuild can now change employers within the same occupation without costly visa ­variation applications and, from this month, labour hire companies recruiting workers on Essential Skills work visas in the construction sector must be accredited.

Law changes passed in November 2015 extend the definition of trafficking to include domestic trafficking. And under new immigration legislation, employers who exploit temporary workers face up to seven years in jail and/or up to $100,000 in fines. The Employment Standards Legislation Bill, due to be reported back to the House next month, also aims to strengthen enforcement of existing employment standards.

So far, however, there have been no convictions on trafficking charges. Late last year, in New Zealand’s first trafficking case under the Crimes Act,  Indian national Jaswinder Singh Sangha was found not guilty of 10 charges of arranging the entry of people into New Zealand by deception. His brother, Satnam Singh, was found not guilty of five of these charges (under the Crimes Act, the definition of human trafficking includes arranging or attempting to arrange the entry of a person into New Zealand through the use of coercion or deception). Sangha and a third man were found guilty of the lesser charges of making false statements to Immigration New Zealand officials.

In a statement, Stand Against Slavery’s Mihaere described the outcome as “disappointing” but officials, he says, will continue to work against exploitation, slavery and human trafficking in this country.

“If nothing else, let it be a warning to would-be exploiters, we are coming to get you and we will not let this verdict curb us from fighting for a slave-free New Zealand.”

There are calls now for more labour inspectors (there are 51 today, up from 35 in 2013); for a more proactive approach from police; and for a system of contract registration so agreements cannot be altered.

Dennis Maga, co-ordinator of the Union Network of Migrants, a migrant-led group within the First Union, wants to see ­Government-funded orientation seminars run by migrant centres to support new arri­vals. He’s particularly concerned about young students drawn into exploitative work situations – in many instances, as in the Taste of Egypt and Masala cases, by others from the migrant or former immigrant communities. He describes cases of education trafficking, where advisers in countries such as India and the Philippines entice young people to apply for student visas in order to get a foothold in the New Zealand labour market.

“Those advisers will charge for advice and will then get a commission from schools. They find a place for them, then encourage them to find work straight away.”

Once here, these students are desperate for work, anxious about their immigration status and at the mercy of employers. “They have no contacts, they have no idea about how the system works.”

A major challenge now is to ascertain the size of the problem. Already a group of NGOs has contracted the Uni­versity of Auckland’s Stringer to investigate the extent of worker exploitation in New Zealand.

Mihaere: “If we can quantify the level of – and I use a string of words – severe worker exploitation, slavery and human trafficking, then we can press the Government and say, let’s work together on this. Immigration can’t do this alone. NGOs can’t do it alone. We need to get alongside increased conscious consumerism at the public level and work with industry.”

There are no excuses for worker exploitation. There is nothing to be gained and, as Mason says, everything to lose. “It is harmful to those businesses that are complying because they suffer under unfair commercial advantage. It damages our reputation overseas. And it offends that sense we have of ourselves as New Zealanders.

“We don’t want people to be dining in restaurants where people in the kitchen are being treated as slaves or not receiving their minimum entitlements. We don’t want retail operations that don’t treat their workers properly. We don’t want kiwifruit supplied though unlawful practices.

“It is a challenge to all of us how we respond.”

Consumer watch

What you can do

•  If you go into a restaurant or workplace and something feels “not quite right”, ask staff how they are and if they are enjoying the job.

•  If you are concerned, contact the Ministry of Business, Innovation and Employment on 0800 20 90 20 or Crimestoppers on 0800 555 111 or complete the anonymous online Crimestoppers form.

•  If there is evidence of exploitation, vote with your feet: stop patronising that restaurant or workplace.

Watching over the elderly

We are particularly reliant on migrant workers in our dotage. According to a 2014 survey, 21% of caregivers in aged-care facilities are from Asia or the Pacific. Wages are low (73% of survey respondents were paid less than $15 an hour) and the work is onerous. Part-time work is the norm; even full-time work is only 32 hours a week. Some workers are bonded to a particular job for up to three years. Many are trapped by massive debts owed to recruitment agencies or fear of deportation.

Carol (not her real name), a trained physiotherapist from the ­Philippines, describes instances of migrant caregivers working longer hours, tougher jobs and more difficult shifts than their local counterparts. They won’t complain, she says, because they are terrified of losing their jobs.

“That is the fear. And [employers] threaten you – they say, ‘I could report you to Immigration and you will be sent home.’ That anxiety, that you might be sent home the following day, is always there.”

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