Man denied day off for wedding after working 70 hours a week for five years


2022-11-28 12:37:53

By Kirsty Johnston of Stuff

Visa and passport to  approved stamped on a document top view in Immigration

Sanjay* says he was supposed to be paid minimum wage but he worked for much less, under threat that his visa would be revoked.
Photo: 123RF

When restaurant manager Sanjay* wanted to get married, his bosses wouldn’t let him take a weekend’s leave. Instead, they forced him to get married on a Wednesday, his rostered day off.

There was no overnight trip, no honeymoon, no time to catch up with the friends who had travelled from Auckland to Wellington to celebrate with him.

Instead, Sanjay was back at work by Thursday, where he was supposed to be paid the minimum wage of $17 an hour, but he says was actually paid only $14, or $11, or sometimes as low as $7, depending on how much unpaid labour his employers squeezed out of him, under threat that his visa would be revoked.

For five years, this was Sanjay’s life. And this is the case he will put before the Employment Relations Authority (ERA) in a bid for compensation. He says he didn’t get annual leave. He wasn’t paid extra for public holidays. If he wanted to go away, he would have to leave early Wednesday morning and return that night. He never celebrated Diwali, or Christmas, or was able to see his friends for more than a lunch in Rotorua, a nine-hour return trip.

“I was always working, working. I couldn’t ever enjoy anything. Even on my day off sometimes, I would be asked to work, to do deliveries,” Sanjay says.

“I ran around here and there like a rabbit. They treated me like a slave.”

Even when a close relative died, the rules were not relaxed. Sanjay says he was denied bereavement leave. He took a week’s annual leave instead. While he was away, he says his bosses docked his pay illegally.

Sanjay had thought, because the restaurant owners were from India, like him, they would understand his culture, to care for him while he made a new life in New Zealand.

“But the only culture they followed was exploiting us,” he says. “Their god was money, only money.”

By late last year, Sanjay was exhausted, desperate to escape. He tried to push back against his boss, to say he needed to be paid properly. In practice, he was working up to 70 hours a week. But on paper he was only doing 35 or 40 hours – and he had no way to prove to the authorities that his employer was breaking the law.

“Everything was just fake,” he says. “Rosters, payslips. It would have put me down as taking sick leave, but I was working. It would say I was doing 32 hours, but I was working much more.”

Documents don’t tell the true story

The exploitation of migrant workers is an ongoing problem in New Zealand despite new laws and increased resources. Last year, the government announced an extra $50 million in funding to combat exploitation, alongside law changes creating an emergency visa so migrants could leave harmful employers lawfully; and a hotline for workers who needed help.

This year, a new Accredited Employer Work Visa will require employers to pass certain checks, before they can hire migrant workers like Sanjay. They will have to prove they are a viable and genuine business, for example, and that they pay the market rate. They have to pass a check that ensures they have terms and conditions that comply with the law.

But while the visa sounds good in theory, the problem is that most of the accreditation is paper-based. Some is self-certification, a course done online. And while the Ministry of Business, Innovation​ and Employment (MBIE) has funding for some site checks, not everyone will get them.

Critics say that’s an issue, because of cases like Sanjay’s. Those stories highlight just how easy it is for employers to get around such paper-based accreditation, to continue to exploit vulnerable workers from offshore.

“I have seen fake rosters, fake payslips, fake employment agreements, fake sick leave records, fake annual leave records,” says barrister Dhilum Nightingale, who takes migrant exploitation cases through Community Law Wellington and Hutt Valley. “And in the time I have been working on these cases, I’ve seen employers only getting smarter and smarter at covering their trail.”

And even with a new bill also aimed at strengthening enforcement powers and compelling employers to provide documents, Nightingale says there is still a gap.

“The requirement to provide documents doesn’t go far enough because again, documents may not tell the true story.”

Cases like Sanjay’s are so common, Nightingale says, that she can rattle off another six examples just over the phone – across the country, and across industries – from dairies to restaurants to horticulture or construction.

She says the common factors are migrants taking a job with a business they trust, and gaining a visa that is tied to their employment at that business. They are then pressured into working long hours, below the minimum wage, but with no record of most of their work. People are unsure of their rights, how to get help and are too afraid of repercussion to speak up.

This same pattern was found by research from the University of Auckland, and by a Stuff investigation into the routine exploitation of Indian students.

In both Nightingale’s experience and in the research, most of the exploitation was perpetrated by those in the victim’s same ethnic group.

“People think that because their employer is from the same community, they will treat them well,” Nightingale says. “But that then makes it harder for them when the exploitation starts, they don’t want to be cast out of the group. The cultural and power dynamics are immense and basically entrap people.”

‘Slowly and slowly, they started treating me like a slave’

Sanjay, for example, arrived in New Zealand on a student visa in 2014. He studied for two years, and then began to hunt for a job. The role offered to him was that of restaurant manager, in Wellington. Almost immediately, Sanjay was consigned to a waiter’s tasks.

“At first, they helped me with the visa, but right after I got it, I realised it was a trap from them,” Sanjay says. “Slowly and slowly, they started treating me like a slave. They said, you can’t leave. If you apply for a job everyone will know, and you will be in trouble.”

As time went on, Sanjay’s conditions worsened. The business owners, he says, began to abuse him, accusing him of stealing, or of abusing customers and other staff. They fabricated events, letters and complaints, digging at his self-esteem, and eroding his mental health.

Eventually, when it came to a head, Sanjay had a mental breakdown. As he was driving home from the restaurant one night, after an argument with the owner, he had a panic attack. That night he ended up in hospital. Soon after, his employer terminated his contract.

“All that time I had no options. I thought, even if I go back to India it’s better than carrying on,” Sanjay said. “I couldn’t carry on.”

But then, while watching television, Sanjay saw something about how your iPhone can track your location, via Google. He searched for the data in his phone and realised: it showed exactly where he had been for the last five years. He rang MBIE and the officer got back to him a few hours later, to arrange an interview. He is now seeking redress through the ERA with Nightingale’s help.

“It’s only when you get the location data that you see the documents just don’t match up,” Nightingale says. “A payslip will say the employee worked 40 hours only, but the employee’s location services data shows they were in the workplace for 87 hours a week.”

Accountability or a tick-box exercise?

Immigration New Zealand says its new visa will put more emphasis on post-accreditation verification and compliance checks – in other words, it will follow up to ensure employers are not breaking the law, over and above the initial high-level checks at certification.

If an employer is found to have breached accreditation requirements at any point during the accreditation period, that accreditation can be immediately revoked, INZ says.

But Nightingale doesn’t have much faith that it will help the clients she sees through her office.

Instead, she is working on a way to provide better information to migrants, including an online platform with a chatbot. She hopes to also find a way to connect migrants with known ethical employers, based on verified reviews from their workers.

But ideally, she says the entire structure of the visa system would change so that visas aren’t linked to an employer – a theme raised by multiple submitters on this year’s inquiry into migrant exploitation by Parliament’s education and workforce committee; and by the Productivity Commission in September.

In fact, the Productivity Commission recommended in its report that the government “cease the practice of tying migrants to a single employer”.

Green Party immigration spokesperson Ricardo Menéndez March says the party has offered alternatives to that scheme, to no avail. It is also wary of the new visa accreditation, because it doesn’t address the issue head-on.

Immigration Minister Michael Wood says the government is not currently considering changes to visa settings to uncouple work visas from single employers, a policy the Greens have pushed for.

Sanjay’s case is unresolved. He says he is owed more than $100,000 in unpaid wages, plus damages. But he was successful in gaining a new visa, and a new job. It’s “awesome”, he says. When he goes there, it feels like he’s not even working.

* Sanjay and his former employer cannot be named for legal reasons.

[ This article] originally appeared on Stuff.

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