Can employers really commit to ‘training and upskilling New Zealanders’ if that means giving some employees advantages over others?

Employers will need to demonstrate within their accreditation applications a commitment to training and upskilling New Zealanders.  New Zealanders being citizens and residents.  This poses the question, if employers were to only offer training and promotions to their New Zealander employees and not offer the same opportunities to their migrant employees, could the employer be in breach of some employment and other laws.

 

Migrants are afforded the same employment protections as New Zealander employees[1] and cannot be treated different. There are certain legal protections afforded to employees to prevent discrimination in the workplace.  Discrimination can obviously come in many forms and includes certain scenarios such as employers affording benefits, training or promotions to only some employees and not to others who have substantially similar job descriptions and similar capabilities.[2] 

 

An employee can pursue a personal grievance claim if they believe they are being discriminated against based on their ethnic or national origin.[3]  Although it may not be the employer’s intention to discriminate against the migrant, the employer may simply be limited financially to only being able to provide training opportunities to a certain number of employees.  However, employers need to be weary to not be offering the same opportunities to migrant employees due to them not being New Zealanders.  This could be found to be an indirect form of discrimination. 

 

Employers need to be mindful when preparing their accreditation applications to not simply offer training to New Zealander employees just to tick the boxes.  You need to be aware of you legal obligations to your employees as a whole to avoid the possibility of personal grievance claims being brought against you. 

 

If you would like to discuss this further, please contact us at AWS Legal.

 

 

[1] Employment Relations Act 2000, s 6(1)(a).

[2] Human Rights Act 1993, s 22(1)(b); Employment Relations Act 2000, s 104(1)(a).

[3] Employment Relations Act 2000, ss 103(c), 105(g).