Law change proposed for expat workers

Monday January 14, 2019 Written by Published in Local
Principal Immigration Offi cer Kairangi Samuela. 19011304 Principal Immigration Offi cer Kairangi Samuela. 19011304

Proposed new immigration laws aim to prevent problems currently experienced with employment agreements for some foreign nationals in the Cook Islands.

Immigration investigations have exposed cases where foreign workers have been employed without written employment agreements containing agreed terms and conditions.

 

A document outlining proposed changes to immigration laws has already been aired at public consultation meetings, and also reveals that under present law, some employment agreements fail to meet minimum legal requirements.

It says some agreements fail to stipulate maximum hours that employees will be required to work, creating the potential for them having to do excessive work under the minimum wage. There have also been problems with agreements that lack clear job roles and responsibilities, the document reveals.

The document identifies issues that have occurred with the exploitation of non-Cook Islander workers, including employers forcing employees to work outside of the business or organisation for the employers’ family and friends. Some employees have been forced to work excessive hours, and there have been issues with employers confiscating workers’ identity and travel documents and confiscating their debit cards or bank account books, thus limiting their ability to independently access their money.

These issues and more are to be addressed in new legislation which will see changes to the international worker visa and permit system.

The proposed changes aim to balance the need to provide training and employment opportunities to Cook Islanders, with the country’s need to access non-Cook Islander workers to support economic growth. The changes will also address the need to maintain working terms and conditions and the minimum hourly wage for all workers, while also protecting their human rights.

A key feature of a proposed new international worker visa and permit is that all non-Cook Islander workers will be required to have a written, lawful employment contract that sets out the employee’s hourly rate or salary, normal hours of work and how overtime is dealt with and paid.

“The working terms and conditions must not result in the non-Cook Islander working for less than the minimum wage,” says Principal Immigration Officer Kairangi Samuela. “This is illegal”.

Under the proposed new rules, non-Cook Islander workers who have hourly rates or salaries that meet the sufficient funds requirement will not have to be formally sponsored by their employer.

“Sponsorship will only be required where the hourly rate or salary is lower than the sufficient funds requirement,” says Samuela. “The sufficient funds requirement is being deliberately separated from the onwards travel plan requirement.

“Evidence of onwards travel plans may be a letter guaranteeing that travel will be arranged by the non-Cook Islander’s employer.”

Such letters will be accepted in “absolute discretion” by the principal immigration officer.

Where a bond is paid by a third party, the legislation proposes that the party cannot recoup it from the non-Cook Islander.

To do so will be an offence, and Samuela says the proposed requirement is intended to prevent the third party from recouping a bond twice, from Immigration and the non-Cook Islander.

Under the proposed changes, international worker visas and permits will be granted for up to three years. Non-Cook Islanders will be required to spend at least one month of the 36 months outside the Cook Islands.

They will then be able to apply to extend their time with their current employer or apply to work for another employer for a further three years, as long as the employer has evidence of attempting to recruit a Cook Islander.

Samuela says the six year maximum for an international worker is intended to ensure that non-Cook Islander workers do not spend so much time away from their usual country of residence that they have little incentive to return, even though they have no permanency in the Cook Islands.

“Placing a six year maximum on an individual worker’s stay also creates an incentive for employers to offer training and employment opportunities to Cook Islanders.”

The proposed legislation will also introduce two new requirements for international workers, she says.

“The first is that they have English language proficiency.

“This is to ensure that they can fulfil their job requirements fully and safely. This is particularly important for non-Cook Islanders who might be working in the building and construction sector or other sectors that might be dangerous.

“English language proficiency is also important for those working in the tourism sector to ensure tourist have a positive experience of their time in the Cook Islands.”

Samuela says an inability to speak and understand English can also make the worker susceptible to employer abuse.

The second equirement is that international workers must, within two weeks of first arrival on an international worker permit, enrol in the “Kia Orana Customer Service” programme or similar and complete it on the next available date and without unreasonable delay.

“This will support these workers to better understand the Cook Islands culture and community and adjust to the Cook Islands way of life,” Samuela says.

“It is intended to address community concerns raised through consultation that non-Cook Islander workers do not understand the Cook Islands.

“It is also intended to support the tourism sector to provide an authentic Cook Islands experience to visitors.

Samuela says the proposals will also enable international workers with sufficient funds (or with an employer who will agree to sponsor them), to bring their spouses and dependent children with them to the Cook Islands.

“The spouse may apply for a special spouse visa and permit and any children may apply for an international minor student visa and permit.

“Their first applications for these visas and permits must be made offshore. These proposals recognise that workers with families may be well suited to work in the Cook Islands, but that the maintenance and well-being of spouses and dependent children must be provided for.” 

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