'Even employers with the best intentions,' must beware, says expert
From 6 January 2024, tougher workplace rules will mean employers who allow a migrant to work in a way that is inconsistent with the conditions on their visa can be fined.
They can also be put on a published register of non-compliant employers and may be barred from hiring migrants for a certain period of time.
“I can see this tripping up even employers with the best intentions,” says India Townsend, senior associate at Simpson Grierson lawyers, who notes the $3000 fine would be per relevant employee.
“This would be the case even if it was a genuine mistake or the employer took reasonable steps to be compliant with the visa.”
To overcome the potential for mistakes, Townsend recommends HR gets appropriate messaging throughout the organisation to ensure managers are aware of the situation.
“With current labour shortages generally and tight workforces, you can see how someone might dabble in a bit of a different role or might go to a different location even just for a short time, and actually that breaks the visa.”
Avoiding inadvertent non-compliance
For this reason, it’s also important for employers to make sure what’s documented in the first place is correct according to realistic expectations, she says. It can also be helpful to allow for flexibility to avoid inadvertently not complying with the terms of the visa.
If employers are faced with a situation where a migrant worker’s position needs to change, they should follow structured steps, she says. This would include an agreement from the person regarding the role change and follow up with a variation of their agreement by way of a letter the employee signs.
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The employer would also need to notify Immigration New Zealand of the amendments, Townsend says.
“I would await their approval, so that it's properly recorded on the visa, otherwise the employer’s inadvertently breaching and risking a $3,000 fine.”
Failure to comply with migrant rules will lead to penalties
In addition, a procedural change Townsend sees as a potential tripping point is that employers will now have to comply with requests from the Labour Inspectorate within 10 working days, including the provision of employment-related documents.
“Failure to comply within this timeframe will result in a new infringement offence, which is a penalty,” she says.
The changes in law follow the establishment of the Temporary Migrant Worker Exploitation Review in 2020 to ensure appropriate measures are in place to provide worker protection.
“The new act will introduce several other offences and penalties with the primary aim of deterring employers from exploiting migrant workers,” says Townsend.
Migrant workers – who include all workers on temporary visas - are entitled to the same minimum employment rights as any other worker in New Zealand, she says. “They need to be treated fairly, have minimum employment standards, entitlements, and be provided with a safe workplace.”
Additional requirements above those for New Zealand workers
There are also additional requirements for an employer employing migrant workers, as opposed to New Zealand employees, she says. These have been brought about by Immigration New Zealand and are detailed in their Operational Manual. These requirements mean that the employer will likely need to get accredited to use the Accredited Employer Work Visa (AEWV) to be able to hire migrants on visas.
“The AEWV requires that the job offer must be for at least 30 hours a week, and that the employer must be paying market rate - at least the New Zealand median wage of $29.66 per hour - unless it is on an exemption list.
“Also, fixed-term agreements less than 12 months are not permitted for most migrant workers,” says Townsend, who emphasises it’s best to get immigration advice. “You need specific clauses that are not always required under NZ employment law, such a family violence clause and a maximum number of hours clause. You also need to provide evidence you've advertised the job for two weeks before you've applied for a visa for a migrant worker. From my observation, it's Immigration New Zealand’s Operational Manual is certainly a lot more onerous a process than it was two or three years ago.”
Some occupations require minimum number of workers from New Zealand
The reasons for the changes, she says, are a combination of protecting the migrant worker and also protecting the New Zealand workforce.
“There are certain jobs on the exemption list which now require a minimum percentage of New Zealand workers before you can start hiring migrant workers. For the construction industry, for instance, for certain occupations, you need 35% minimum New Zealand citizens or residents in full-time employment.”
For employers using employment agencies that might source migrant workers, there are requirements on both the agency hiring the workers, and also for the employer.
“The obligations are more on the agency rather than the end user employer, but it's important for the end user employer to know that just because they're engaging labour hires through an agency, it doesn't mean they're off the hook in relation to their obligations to those individuals,” says Townsend.
Usually, the agency would remain the employer on record, but “the end user could actually be interpreted as a controlling third party as part of the triangular employment relationship.
“So it is possible for those migrant workers to be able to claim against the end user employer, as well as the employing agency.”
Key steps for compliance with migrant worker rules
While the changes may seem onerous, there are steps employers should take to ensure compliance when hiring migrant workers, says Townsend. “Compliance is crucial to protect the rights of both the employer and the migrant workers.”
For compliance, she recommends some steps that employers follow include:
- Understand the applicable laws and regulations: Migrants have the same employment rights as all other employees under New Zealand law. Employers that have breached these minimum employment standards may face penalties and be subject to stand-down periods during which they cannot support visa applications.
- Ensure you comply immediately with any requests by the labour inspectorate for employment documentation, and in any event within no longer than 10 working days.
- Ensure you do not allow a migrant to work in a way that is inconsistent with the conditions of their visa such as working in a different role or location.
- Develop clear hiring policies and procedures that outline the steps for hiring migrant workers and that these are consistent with applicable laws and regulations.
- Track visa expiry dates: keep careful track of the visa expiry dates of migrant worker employees and remind them to renew their visas well in advance of expiry dates.
- Keep good records: store good records of the right-to-work documentation checks you make for each employee.
- Get good advice from an immigration specialist. If you become aware of issues of non-compliance, get expert advice on the best way to handle them.