WORK PERMITS ACT – WHAT DID WE JUST PASS?

Despite a requirement in the Standing Orders that laws must be sent to MPs 10 days before Parliament sits, Members last week debated and passed a series of changes to the law governing how work permits are issued and managed within a day of receiving them.

Creating a fair and open employment market for Ni Vanuatu has been a challenge for successive governments. It has been widely reported that some employers used work permits to fill positions that could have been filled by Ni Vanuatu. Enforcement of existing requirements has intensified in 2018.

It’s not clear whether there was any consultation with the public concerning these amendments.

Every bill comes with an explanatory note for Members, providing a reason for each amendment, and laying out what each change does.

This note states that amendments are necessary in order to ensure that positions are occupied by citizens; to “increase Government revenues”; to create a formal appeal process for grievances; to protect citizens from being “mistreated”; and to ensure that “foreign investors are here to invest and not to be employed.”

The Act rests on a basic premise: One expat comes into the country to train one person at one job. When that expat is finished training that one person at that one job, they leave.

The duration of a work permit has been capped at four years with no exceptions whatsoever. Even work permits issued to VIPA investors expire at the end of four years and may not be further renewed.

Employers are now required to submit all the applications they receive for a position, and corporate entities must provide a written description of the process by which selection was made. This has raised fears in the business community that the government is now mandated to interfere with hiring decisions that affect the future of the company.

The tax on work permits has been raised 32%, to VT 330,00 from VT 250,000. Some other fees have been raised as well. No rationale for this is provided, except as a source of revenue. Some business owners may see this as little more than an ‘expat tax’. There is no provision for the revenues ring-fenced for Labour, so it appears the money simply goes to general revenues.

The Labour Regulation budget line has increased from about VT50 million in 2018 to just over VT 70 million next year.

Appeals for grievances related to work permits are no longer a matter for the Minister. Instead, a new Appeals Committee has been set up. It’s composed of the DG of Internal Affairs, the VIPA CEO, the Director of Immigration Services and a person appointed by the Judicial Service Commission.

They are required to meet a minimum of 4 times per year, but must consider any appeal within 30 days of it being lodged.

Appeals must be lodged and a VT 30,000 fee paid within seven days of a decision.

A work permit may be revoked if the Commissioner of Labour has failed to train someone, if the worker has not complied with the permit, or if the permit-holder “is mistreating other employees he or she is working with”.

‘Mistreating’ is defined as including, but not limited to, physical or verbal assault.

Assault is listed in the Penal Code. Presumably non-citizen convicted of a crime would not be eligible for employment in Vanuatu. So these changes appear to create a new class of infraction, and a new forum for arbitration, and which seems to lack the option of judicial review.

The law also doesn’t deal with employment in highly skilled private sector occupations such as accountancy, medicine, science, art, technology, aviation, or engineering, for example. Nor does it address occupations requiring specific certifications and expertise for which training cannot be delivered in Vanuatu.

Work permits are narrowly defined as allowing one non-citizen to train one citizen for up to 4 years. It does not allow for a non-citizen to train more than one citizen.

A work permit cannot under any circumstances be extended beyond four years. This doesn’t appear to take staff mobility into account. It’s very common that, as training progresses and a worker develops, they are promoted or moved within the organisation, and someone else takes their place.

It’s common for partially upskilled workers to parlay their new capabilities into a better position with someone else.

It’s not clear if a non-citizen with valuable experience training Ni Vanuatu would be eligible to apply for other jobs outside of the first four-year term. Both renewals and transfers seem to be bound by the same four-year limit.

This calls into question one of the most common paths to citizenship: A person works over the years, providing valuable assistance to numerous Ni Vanuatu, then after ten years of contributing to society, they apply for the privilege of becoming a citizen.

Being required to exit the country at the end of a work permit’s term might affect their ability to maintain ten years of continuous residence, a condition of citizenship.

Some—but not all—of these concerns were debated during a spirited session on Friday. But in the end, the amendments were passed without the public knowing what was in them.

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