The Interplay Between Employment and Immigration Law

Below is the text from the Presentation delivered by Marcus Beveridge, Principal, Queen City Law and Rita Worner, Solicitor, Queen City Law

Check out the Queen City Law Power point presentation here.

Marcus Presents 2014 Employment

Marcus Presents 2014 Employment

OVERVIEW
As immigration lawyers we often hear from immigrants desperate to find a job in New Zealand, complaining that employers and recruitment companies do not want to go anywhere near them unless the already have a work visa. They complain that it is an impossible catch-22 situation – they can’t get a job offer without a visa, but they can’t get the visa without a job offer. The truth is that it is not impossible or even all that difficult to hire an immigrant if you know what you’re doing. However there are various pitfalls that can occur. Here we will outline what an employer needs to know about recruiting immigrants. We hope that by the end of our presentation you will understand how to ascertain the appropriate type of visa your potential employee would need to obtain; what your employee’s visa allows them to do for your company, and what you need to do to ensure you are compliant with both immigration and employment legislation.

RECRUITMENT IN THE IMMIGRATION SPHERE

Who may legally work in New Zealand? New Zealand and Australian citizens can work for any New Zealand employer without restriction, The same applies to both New Zealand and Australian residents.

In addition to a work visa, there are other types of visa that in some circumstances also permit some work, including the Working Holiday visa, Student visa, and Visitor Visa (Business purposes).

New Zealand employers often do not understand the immigration system and employment legislation well enough, or aren’t prepared to take the risk to employ an immigrant or offshore applicant. They can offer a job to someone who doesn’t have a visa, but that person cannot start work until they obtain the visa. In any case, if they can hire a New Zealander for the role – then they should do so.

First of all, we provide a brief overview of the different immigration categories. Visas are divided into two overarching categories: Residence Visas and Temporary Entry Visas. A resident has most of the rights of NZ citizens and no restrictions on working. Temporary Entry Visas include all the different types of work visas, student visas, visitor and transit visas.

Holding a Work Visa will allow a person to work in New Zealand. The visa will either be tied to a specific employer, or “open” so that the holder can work for any employer, including self-employment. Unless a person is self-employed with a visa that allows this, they should not hold any shareholdings or directorships.

The benefits of holding the main types of work visa, are that the holder is eligible for access to public healthcare (where they hold a visa for 2 years total); their children a classified as domestic students, and their partner can get an open work visa in most cases.

There are various limitations and conditions on work visas, for example a prohibition on working in the commercial sexual services industry. Many work visas specify the employer, the position, and the location of the work and these conditions cannot be breached. Any changes, for example if the employee is promoted, will need to take place only after a new Work Visa is applied for and granted. In other cases, only a ‘Variation of Conditions’ is required. Working Holiday holders are generally only able to accept temporary/short-term contracts depending on the jurisdiction, and Student Visa Holders may in some cases work, but are restricted to 20 hours per week, and full-time hours during holidays (Christmas break and university semester breaks).

As an employer or HR representative you will need to be aware of the above to ensure that the company – as well as the employee – is not unwittingly breaching immigration laws.

What type of visa is required for your employee?

The most common types of work visa are as follows:

Essential Skills (tied)
Specific Purpose (tied)
Talent / Work to Residence (tied)
Partnership (open)
Graduate  (tied) / Job search (open)

All have different eligibility criteria and different benefits and restrictions. Here we will focus on those visas which would be most relevant to companies looking to hire skilled international candidates.

Visitor Visa (Business Purposes)1

There are times when a work visa is not needed. If an employee of a multinational company is coming to New Zealand for a short period of time, the reason for their visit may not fall under the definition of ‘employment’2 and therefore they could enter New Zealand on a business purposes visitor visa instead.

For example, people undertaking business consultations or negotiations on establishing, expanding, or winding up any business, or carrying on any business in New Zealand are not required to have a work visa for visits of less than 3 months. Likewise, sales representatives and overseas buyers will not require a work visa.

Essential Skills

The objectives behind this policy is to incentivize the development of a highly skilled workforce; help New Zealand firms to maintain capacity; while not displacing New Zealander’s from employment opportunities or hindering improvements to wages or working conditions.3

The requirements of an Essential Skills Work Visa are as follows:

Job offer
Satisfy the ‘Labour Market’ test through either:
Advertising; or
Essential Skills in Demand List
Consistency with ANZSCO (i.e. job description and qualification/experience).

INZ uses a classification website called Australian and New Zealand Standard Classification of Occupations (ANZSCO)4 in their assessment. The applicant’s job description needs to match an ANZSCO code. A skill level of 1 (highest) – 5 (lowest) is assigned to each job. The higher the skill level, the easier it is to prove that there are no New Zealander’s available for the position. This category naturally leads on to the Skilled Migrant Category of residency, so it is important to think ahead and ensure the chosen ANZSCO code will suffice for residency as well.

Specific Purpose Work Visa

This visa is particularly useful in cases of specific projects or events where a company may need help from offshore. This may include for example businesspeople on secondments, sports players or people in the entertainment industry.

The requirements for this visa are a job offer or invitation from the New Zealand entity; evidence of the length of time required in New Zealand; evidence of qualifications or experience relevant to the project/event.

Employer Accreditation Scheme

INZ has an Employer Accreditation scheme which is a good tool especially for larger companies who want to be able to recruit skilled employees from offshore from time to time. The aim of accreditation is to allow accredited employers to supplement their own New Zealand workforce through the recruitment of people who are not NZ residents, without the need to establish that there are no other NZ citizens or residents suitably qualified to do the work.

Requirements:
– Business is in a sound financial position; and
– Has human resource policies and processes which are of a high standard; and
– Has a demonstrable commitment to training and employing New Zealanders; and
– Has good workplace practices, including a history of compliance with all immigration and employment laws such as the Immigration Act, the Injury Prevention, Rehabilitation and Compensation Act, the Minimum Wage Act, the Health and Safety in Employment Act, the Employment Relations Act and the Holidays Act.
In determining whether employers may be accredited, INZ will assess applications taking into account such factors as:
– the period for which the employing organisation has been established as a going concern;
– whether the employer has engaged with the relevant Industry Training Organisation (ITO);
– whether the employer is a member of the EEO Employers Group;
– whether the employer is International Organisation for Standardisation (IOS) certified;
whether the employer has an intention to maintain accreditation throughout the period of currency of any visas issued or granted to their employees under the Talent (Accredited Employers) Work Policy.

Employees will only be approved for a work visa if earning over $55,000 per annum, and then are able to obtain residency after 2 years of working for the company. The employer must submit a renewal application annually in order to retain the accredited status.

Skilled Migrant Category (Residency)

The Skilled Migrant Category is the most well-known residence category that the majority of skilled work visa holders will apply under. Applicants receive ‘points’ based on factors such as a job offer, work experience, qualifications etc.

The most important requirement is the skilled job or job offer. The applicant’s job description needs to match an ANZSCO code; if INZ do not consider it similar enough, they will decline the application.

Throughout the assessment process, the employer may be contacted by INZ and asked to complete a questionnaire. This is to verify the claims made by the employee in their application. Other possibilities include a site visit, an interview with the employer, or the requisition of financial performance or other documents from the company.

COMPLIANCE

The consequences of not being abreast of immigration issues in a recruitment capacity can be severe. Employers are subject to harsh fines for not complying with the Immigration Act, some of which we will outline here.

It is an offence under section 3505 of the Act to allow a person to work where that person is not entitled to work in New Zealand. To knowingly do so can attract a fine not exceeding $50,000. To unknowingly do so can attract a fine not exceeding $10,000. It is a defence to such a charge that the employer did not know that the person was not entitled to do the work, and took reasonable precautions and exercised due diligence to ascertain whether the person was entitled to do the work.

Therefore employers have an obligation to check a prospective employee’s entitlement to work, not just at the commencement of employment, but when the visa is due to expire. Best practice suggests that an employer should always hold evidence of an employee’s immigration status on file. In addition to retaining a copy of the employee’s visa, one can also use the ‘Visaview’ service provided by INZ to check if an individual is able to work for them.

Section 3516 outlines the offence of exploitation of persons not legally entitled to work (‘unlawful’ persons). A person convicted of an offence against section 351(1) is liable to imprisonment for a term not exceeding 7 years, a fine not exceeding $100,000, or both.7 The Immigration Bill currently before Parliament includes the exploitation of lawful temporary migrant workers as an offence. There is currently a gap in legislation whereby employers who exploit unlawful workers can face heavy sanctions, yet those who exploit lawful migrant workers face a low risk of being held to account. This will mean that migrants in this group are protected in the same way as unlawful migrants.

According to anecdotal evidence from the Labour Inspectorate and Immigration New Zealand (INZ), in many cases, those who exploit migrant workers are themselves former migrants. Under the 2009 Act, temporary visa class holders may be deportable if they exploit migrant workers but residence class visa holders are not. Residence class visa holders who knowingly employ unlawful workers or exploit migrant workers within the first ten years of being granted a residence class visa are liable for deportation.

TERMINATION OF EMPLOYMENT

A work visa holder stands to lose a lot more than a New Zealand resident/citizen if they are terminated from their employment. In many cases they are losing their right to be in New Zealand once they lose their job. If someone holds a work visa that is tied to specific employment, then once they no longer hold that employment their reason for holding that visa is also gone. The employee has a positive obligation to inform INZ of their change in circumstances. INZ will then advise the employee to either apply for a new visa or leave the country.

This creates an arguable case for additional penalties under employment legislation if an employee is found to be unjustifiably dismissed. See for example, a case of unjustified dismissal from the Employment Relations Authority in 2012 (Nicholas Ten Hoorn Boer v Reid Research Services Limited [2012] NZERA Auckland 142). Although the Authority specifically did not award compensation for the loss of the benefit of the right to work in NZ, the applicant was awarded $10,000 for distress suffered, in addition to 5 months’ lost remuneration.

CONCLUSION

It is possible for companies to use immigration policy to help them in attracting the talent that may not be available in New Zealand. However the regulations and the various different options can be confusing to the unfamiliar. Understanding the different options and how they apply to your company or employees can help you make the best decision for your business. It is also important to be aware of the additional precautions required when hiring immigrants.