Work Visas on the Move (Again)

Just before Christmas (possibly strategic timing in light of criticism he faced in the last few months) the Minister of Immigration announced a scheme to overhaul the entire employer assisted Work Visa system.  The proposals are set out in a detailed Consultation Paper, and I am currently involved with a couple of industry groups which plan to make submissions on this by mid-March.  Apparently the aim is to roll out the final form of the policy in the middle of 2020, which is – what a surprise – just before the next Election.

The New Model

A central feature is that all employers wishing to hire migrants must get one of three types of accreditation.  The category already exists as a subset of Work Visa policy, and is described in one of our fact sheets.  Under the current settings, employers must show that they:

  • are in a sound financial position;
  • have robust HR policies to safeguard employees;
  • have a clean employment relations record (for instance, no adverse claims against them before the Employment Relations Authority); and
  • are actively committed to employing and training New Zealand workers.

Whether accreditation under the new policy will look much different is not clear, although it is likely to carry over many of the above requirements into a new scheme.

Once accredited, employers can support applications for visas relatively easily.  This might give greater certainty to employers who get it.  There are, however, a couple of immediate risks with this idea:

  • Businesses wanting to hire only 1 or 2 people will face a disproportionate load of paperwork.  From our experience, seeking accreditation is a serious exercise.  The standards currently applied to accreditation set a high bar for employers in terms of HR policies and the expectation that they will continue to actively recruit and train New Zealanders.
  • Accreditation must apparently be renewed every 12 months.  There could be real problems for employers if Immigration is slow to decide applications for renewal, because if the existing certificate lapses before a new one is issued, the migrant staff have to stop working.  Just a couple of years ago the whole accreditation scheme was almost dysfunctional, until the duration of the grant was increased from 1 to 2 years in 2017.

A class of premium accreditation will be available, requiring an employer to demonstrate “pastoral care, active engagement in workforce programmes and endorsement by third parties [i.e., unions].”  The successful business can renew for 2 years at a time.  Again, though, this does not compare favourably with the present settings which allow existing accredited employers who appear to be reliable in the long run to extend their certification for 5 years at a time.

Another new element is the concept of “sector agreements” with particular industries for hiring in lower-skilled occupations.  Business groups such as the EMA and Restaurant Association will need to invest even more in research and professional lobbying to secure an agreement benefiting their membership.  The consultation paper suggests:

It is proposed that negotiations begin with the residential aged care sector and the tourism and hospitality sector in mid-2019 with the expectation that the agreements could come into effect by early 2020.

Winning the War on Exploitation?

Underpinning these and other ideas floated in the plan are the Government’s stated commitment to raise wages and to combat exploitation of migrant labour.  The latter issue has received some additional attention and funding in the last couple of years, but recently the news has been full of stories suggesting that it continues unchecked.  A new study gives some empirical backbone to the stories.  Nor is it limited to fly-by-night employers in back streets – major construction firms are also being accused of breaching employment standards on a large scale.

Vetting employers more stringently for employer-specific Work Visas is not necessarily going to curb exploitation.  Instead, it is going to shift it underground.  The reason is that in late 2018 the rules for Post-Study Work Visas were relaxed to allow graduates to more easily get open visas (that is, they can work anywhere, for anyone).  If accreditation makes it too hard for small businesses in particular to hire overseas staff, they will simply turn to the migrant student population whom they can engage on whatever terms they can achieve.

“Kiwis First” Again

An interesting feature of the proposal is the claim that part of the problem which it is meant to solve is the displacement of New Zealanders from employment.  In support, the paper cites an MBIE report updated in 2018.  The odd thing is that, overall, the researchers conclude that there are:

no significant indications of migrants crowding out New Zealanders for jobs, and, in particular, no overall effects on employment in the same industry (direct effects) or in other industries (combined effects) . . .

Indeed, elsewhere they declare that migration has had positive effects on wages, and the hiring of youth and beneficiaries in urban areas.  True, the report goes on to note negative effects on the hiring of New Zealanders through the current Essential Skills policy (the main employer-assisted route at present).  However, given that the employer-assisted categories only account for under 50,000 of the 230,000 or so Work Visas granted in the year to June 2018, and that the authors of the report could not be definitive about the reason for their findings, it is questionable whether this complete revamp of the policy can be justified for this reason either.

Finally, the Government wants to tune the migrant labour supply to match the needs of the regions.  No doubt there is merit in this, but any such system should also recognise that median wages differ widely across the country.  Employers should not be forced to pay Auckland prices for a worker in Southland.

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Decreases in skilled migrants, increases in temporary workers

construction

A Radio New Zealand article recently reported that “National blames ‘the dark hand of NZ first’ for sharp drop in skilled immigrants”. It states that overall new resident numbers fell from 47684 to 37948 in the last financial year and that almost three quarters of the changes was down to a decrease in skilled immigrants.

Immigration New Zealand publishes immigration statistics on their website, www.immigration.govt.nz so the numbers being quoted in the Radio New Zealand article can be looked up. It does appear according to these statistics that the total number of Residence Visa approvals, across all categories, fell from 47684 in the 2016/17 financial year, to 37948 in the 2017/18 financial year.

The INZ financial year begins in July.  In the 6 months to 31 December 2018, the total number of Residence Visa approvals is 17716. It may be that the total Residence Visa approvals through to June 2019 represents a further downward trend.

These numbers quoted are across all Residence categories. The numbers for Skilled Migrant category Residence Visa approvals are

  • 24140 in 2016/17;
  • 17085 in 2017/18; and
  • 5930 in the period July – December 2018.

It does appear that the slump in the approval of Skilled Migrant category Residence Visas is a significant portion of the fall in total Residence Visa approvals.

The total number of Temporary Work Visas on the other hand, has increased from 226,321 in 2016/17 to 230,259 in 2017/18.

It may seem strange that the total number of Temporary Work Visas granted is going up while the total number of Residence Visas and Skilled Migrant category Residence Visas is dropping. This signals an increase in temporary workers of varying skill, but a decrease in those able to apply for Residence under the Skilled Migrant category.

The categories of Temporary Work Visa whose numbers have increased in the 2016 – 2018 period are:

  • Essential Skills (this forms the largest proportionate increase), from 32292 to 38101
  • Approved in principle
  • Asylum seeker
  • Belgium working holiday scheme
  • Canada working holiday scheme
  • China special work
  • Crew of foreign fishing vessel
  • Partner of a student
  • Partner of a worker
  • Post-study employer assisted
  • Recognised seasonal employer
  • Silver fern job search
  • Talent (accredited employer)
  • Variation of conditions

The increase in temporary workers but reduction in Skilled Migrant numbers may be the flow on effect of changes to the Skilled Migrant category in October 2016, raising the minimum number of points required to achieve Residence from 100 to 160. See here.

Further changes by the National Government also came into effect in August 2017, introducing a remuneration threshold for employment which Skilled Migrant category applications are made with. See here. At the same time, the National Government introduced remuneration requirements for Essential Skills Work Visas. See here.

Following the 2017 Election, in January 2018 changes made by the Labour-led Government were introduced, which raised the remuneration threshold for employment relied upon for Skilled Migrant category applications. Remuneration requirements for Essential Skills Work Visas were also increased. See here. And in November 2018 the Skilled Migrant remuneration threshold went up again. Remuneration requirements for Essential Skills Work Visas were also further increased. We recently published a summary of the cumulative effect of these increases.

The significant upward ratcheting of minimum salary levels has no doubt been an influential factor in the drop in Skilled Migrant Residence Visa approvals. Both the National and Labour-led Governments have also raised the salary requirements for the approval of Essential Skills Work Visas, but the lower salary bands are somewhat less than the Skilled Migrant threshold.

The Radio New Zealand article quotes National Immigration spokesperson Michael Woodhouse and Immigration Minister under the previous National Government as saying,

so we have this almost perverse trend at the moment where we’re getting very high numbers and increasing numbers of lower skilled workers coming in on temporary visas but lower numbers of higher skilled workers gaining residence. That’s a significant drop at a time when our economy most needs skilled migrants. I have no doubt that the dark hand of New Zealand First in the background is influencing that trend.

Immigration Minister Iain Lees-Galloway was quoted in the Radio New Zealand article as saying he was considering ways of lifting the numbers and denied the decrease in numbers was down to government policy or New Zealand First influence.

It is something I’m looking at, whether we can do a better job of targeting skilled migrants and providing opportunities for them to achieve residency. At the moment I don’t think the residence programme is sufficiently well targeted. Michael Woodhouse need look in only one direction regarding residency numbers and that is in the mirror. He is speculating an relying on anecdotes, there’s absolutely no truth to what he is saying, what we are seeing is the flow-on effect of changes that he made when he was the Minister.

Immigration New Zealand said that the fall in skilled immigration was expected, and was down to the policy changes made in 2016 and 2017, raising the threshold to qualify for residence and the introduction of remuneration criteria.

As the writer of this blog is indicating, changes making it more difficult for Residence to be granted under the Skilled Migrant category have been introduced by both the previous National and the new Labour-led coalition Government. It would be of much benefit if politicians, rather than attempting to blame each other, took responsibility and ownership of each of their policies which in some ways are very similar. In fact, in a blog post just after the Election it was pointed out that Labour essentially inherited the policies already put in place by the previous administration.

The current Minister says he is looking at ways to better target skilled migrants and provide them with opportunities to achieve Residence. The question this writer must ask is, how long is this going to take? It has now been more than a year since the September 2017 election, and the only changes introduced to the Skilled Migrant category by the Labour-led Coalition are those identified by the writer in this blog.

If Skilled Migrant Residence Visa approval numbers continue to fall but Temporary Work Visa approvals continue to rise, this may be seen as a more transient situation for those interested in New Zealand as a migration destination. More will be “in limbo” on a Temporary Visa, but unable to achieve the certainty associated with Residence status. This would appear to run counter to the current Minister’s expressed concerns regarding migrant exploitation (see for example, here).

Politicians react to public opinion and it is the case that immigration was a hot topic in the lead-up to the Election, so this may have influenced some of the changes identified above. But it may be a perverse outcome, bad for New Zealand’s reputation and its access to international talent, meaning politicians may need to make their positions clearer and implement their intended changes with more speed.

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Rowdy Tourists Facing Deportation

I was interviewed yesterday by Newshub about the Irish visitors who are at the centre of a media storm owing to their antics from Auckland to Hamilton.  They have been served Deportation Liability Notices (“DLN”s) and are apparently planning to leave.  The Irish community in New Zealand has distanced itself from them, and it may be that they are part of the distinct “Traveller” ethnic group who have settled in England.

The group is here on tourist visas.  A DLN can be issued against temporary visa holders under section 157 of the Immigration Act for a number of reasons.  The ground that has probably been applied to most of them is a generic provision, “other matters relating to character”.  That is, even if they have not been charged with an offence, this provision can be used if the Minister of Immigration sees “sufficient reason” to deport them.

Someone served with a DLN in this way has 14 days to put forward reasons why they should not be deported, and 28 days to appeal to the Immigration & Protection Tribunal.  If they use up their appeal rights, or don’t exercise them, then eventually Immigration has the right to serve them with Deportation Orders; and even if Orders are not served and they eventually leave on their own, they are banned from applying for a visa to enter New Zealand for 5 years.

However, it doesn’t appear that the group is going to fight it.  They now say that they plan to leave the country by the end of the week.  If they do this voluntarily, then technically they will not have been deported.  This is important, because if they apply to enter other countries they can legitimately answer “No” when asked the standard question “Have you ever been deported from any country?”  Still, this incident will no doubt make it impossible for them to get visas to Australia, the US and Canada for quite a while, because New Zealand shares visa information with those countries (and the UK) under the Five Country Conference accord.

Furthermore, the 5-year ban on getting visas for New Zealand later will not apply to them if they leave quickly.  It’s hard to see, though, how they would ever get back in here after the furore that has blown up around them.  Immigration New Zealand has no doubt already posted Alerts against their visa records to warn that they should not be permitted to re-enter for several years.

At least one of them has in fact been charged with an offence.  In that case they could additionally be liable for deportation for “criminal offending” even if no conviction is entered against them.  That person would normally be required to remain in the country to face the charges and to be sentenced if found Guilty.  What is also likely is that Immigration and the Police agree to let the charges drop so that they can put the offender on a plane out of the country.

If you want to know more about how deportation works, visit other postings from our blog, including one by Dew James of our office.

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Wrapping up 2018

Santa

Everyone thought 2017 was the year of dramatic changes to the immigration field with the introduction of major adjustments to the Essential Skills Work Visa and Skilled Migrant Residence Visa Categories. But looking back at all the changes introduced to date, I would say 2018 was equally busy with policy shifts that took effect right up to the end of last month. Seeing that this will be the last Laurent Law blog for the year, I thought I should wrap it up with an overview of the changes we faced in 2018 before we close off for Christmas and welcome the new year.

Date Changes/Announcements
January 2018 Remuneration threshold for SMC and ESWVFollowing the major changes to the Skilled Migrant Resident Visa (“SMC”) and Essential Skills Work Visa (“ESWV”) policies in August 2017, minimum income thresholds for all skill bands for the two types of visas were increased for the first time and took effect from 15 January 2018.
June 2018 Minimum income threshold for other categoriesMinimum income thresholds for other visa categories were also increased and took effect in mid 2018 as follows:

  • New thresholds for Samoan Quota Scheme and Pacific Access Category applicants who have partners or dependent children included took effect from 1 June 2018
  • New thresholds for Essential Skills and Religious Worker work visa holders whose dependent children are in New Zealand on other temporary visas took effect from 1 July 2018
  • New thresholds for the guaranteed lifetime minimum income requirements for the Parent Category (Tier 1) Residence took effect from 1 July 2018

Further detail on the new income thresholds can be found here.

July 2018 E-Visas – Immigration New Zealand (“INZ”) announced that it will no longer issue visa labels and only issue electronic visas (“E-Visas”) for all visa types as of 4 July 2018, except for student visas granted through Provider Direct.

However, INZ recently announced that e-visas will be issued for student visas granted through Provider Direct as of 26 November 2018. See the latest announcement here.

August 2018 Proposed changes to the Post-Study Work Visas – On 8 August 2018, INZ announced the changes to the Post-study work visa (“PSWV”) policy by removing the 2 year employer-assisted PSWV at all levels, and offering to provide 1-3 year open PSWV based on the level of qualification and the location of study. For further detail, refer to our blog on PSWV changes.

Changes to the Interim Visa – By law, interim visas were deemed to expire on the day after the decision on the main application was made or 6 months after the interim visa was granted (whichever comes first). But as of 27 August 2018, the validity of interim visas were varied to allow it to remain valid for 21 days after the further temporary visa application has been declined or withdrawn. For further detail, refer to our latest blog on interim visas.

October 2018 Introduction of Electronic Travel Authority – INZ announced in October 2018 that travellers, including citizens of visa waiver countries, will be required to obtain an Electronic Travel Authority (“ETA”) before travelling to New Zealand by second half of 2019. It announced that ETAs will enable border officers to screen travellers in advance for border and immigration risks and make border crossing a seamless process. For further detail on ETAs, refer to our blog.
November 2018 Remuneration threshold for SMC and ESWV II – The minimum income thresholds for all skill bands for the two types of visas were increased again following its first increase in January 2018. The new income thresholds took effect from 26 November 2018 tightening the policy even further for those who were planning to seek visas under these categories. For further detail on the changes, refer to our latest blog.

This brings us to the last month of the year. The only final announcement I came across was the first Expression of Interest (“EOI”) selection dates for 2019, which may be of interest to some readers. If you plan on submitting Skilled Migrant Category or Investor 2 Category EOIs early next year, the first EOI draws for 2019 will take place on 23 January (for SMC) and 17 January (for Investor 2) respectively so key in these dates on your 2019 calendar.

However, at the time of writing we have just become aware that the Minister of Immigration intends to make an announcement next week about a Cabinet decision to alter Work Visa policy.  Details will be posted up as they come to hand.

If you think you will require our assistance during the festive season, then please also key in these dates in your calendar as we will be closed for business from Monday, 24 December 2018 and will not be open until Monday, 7 January 2019.

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Shifting goalposts

In August 2017, Immigration New Zealand (“INZ”) overhauled the Skilled Migrant Residence Visa and Essential Skills Work Visa Categories instituting key changes to policy. One of the most striking changes was the introduction of remuneration thresholds as a means of defining “skilled employment”[1] in the Residence Visa space, and for assessing the “skill band” of a Work Visa applicant’s job which in turn determines the duration of the temporary visa that can be granted.

The remuneration thresholds are reviewed annually in November based on New Zealand’s income data.[2] Since the announcement was first made, there have been two such reviews and each one resulted in an increase to the minimum income threshold for all skill bands, the latest adjustment coming into effect on 26 November 2018:[3]

Threshold for Skilled Migrant Residence Visa Applications From 26 November 2018 – present From 15 January 2018 – 25 November 2018 From 28 August 2017 – 14 January 2018
Skilled employment in an occupation at ANZSCO 1 – 3 $25.00 p/h or above (or the equivalent annual salary) $24.29 p/h or above (or the equivalent annual salary) $23.49 p/h or above (or the equivalent annual salary)
Skilled employment in an occupation at ANZSCO 4 – 5, or which is not included in ANZSCO $37.50 p/h or above (or the equivalent annual salary) $36.44 p/h or above (or the equivalent annual salary) $35.24 p/h or above (or the equivalent annual salary)
Threshold to earn bonus points $50.00 p/h or above (or the equivalent annual salary) $48.58 p/h or above (or the equivalent annual salary) $46.98 p/h or above (or the equivalent annual salary)

 

Skill Bands for Essential Skill Work Visa Applications From 26 November 2018 – present From 15 January 2018 – 25 November 2018 From 28 August 2017 – 14 January 2018
Mid-skilled employment in an occupation at ANZSCO 1 – 3 $21.25 p/h or above (or the equivalent annual salary) $20.65 p/h or above (or the equivalent annual salary) $19.77 p/h or above (or the equivalent annual salary)
Higher-skilled employment in any occupation (including those at ANZSCO 4-5) $37.50 p/h or above (or the equivalent annual salary) $36.44 p/h or above (or the equivalent annual salary) $35.24 p/h or above (or the equivalent annual salary)
Lower-skilled employment (for all ANZSCO levels) $21.24 p/h or below (or the equivalent annual salary) $20.64 p/h or below (or the equivalent annual salary) $19.76 p/h or below (or the equivalent annual salary)
Lower-skilled employment in an occupation at ANZSCO 4-5 $37.49 p/h or below (or the equivalent annual salary) $36.43 p/h or below (or the equivalent annual salary) $35.23 p/h or below (or the equivalent annual salary)

(ANZSCO refers to the Australia and New Zealand Standard Classification of Occupations, which is used by Immigration to assess the skill level of a job.)

As can be seen in the tables above, in a relatively short space of time between August 2017 and November 2018, the salary thresholds have increased relatively steeply. These shifting goalposts will undoubtedly make it increasingly difficult for hopeful Skilled Migrant applicants to be eligible to submit an Expression of Interest, and could abruptly shorten the visa duration of Essential Skills Work Visa applicants.

Whilst there is no escaping the new remuneration thresholds, the following tips may help to ease some of the other pressures you may be facing:

For the Skilled Migrant Category

  • If you do not have the minimum 160 points, consider looking for employment outside of Auckland so that you can secure an additional 30 bonus points. It might pay to have a conversation with your current employer to discuss options for a transfer to another branch outside of Auckland;
  • If you have a longer term temporary visa, one way to acquire sufficient points is to spend time building your New Zealand work experience but this could mean potentially postponing submitting your Expression of Interest by one to two years;
  • Claim points strategically by claiming no more than the minimum 160 points required, and limit points claimed for “skilled work experience” to only include New Zealand work experience and / or work experience gained relatively recently (as opposed to a long time ago);
  • Consider applying for a job with an Accredited Employer. While this will probably postpone your ability to apply for residence by about two years, the application process will be more straight forward and less stressful than the Skilled Migrant Category.

For the Essential Skills Category

  • Be thoughtful when selecting an ANZSCO Unit Group which you believe is a substantial match to your current employment. Avoid pitching your job against a Skill Level 1 ANZSCO Unit Group unless it is obviously a highly skilled job;
  • Apply for your new visa well in advance of your current temporary visa expiring to allow sufficient time for labour market testing to be undertaken by your employer;
  • To avoid unnecessary issues arising during the processing of this visa, ensure that the information in all of your employment documentation is consistent, including for example your Job Title as it is listed in your Employment Agreement, Job Description, Employer Supplementary Form and advertising materials;
  • As above, consider working for an Accredited Employer.

There is no question that it is now more challenging that ever to apply for job-based temporary and residence visas in New Zealand. Should you require our guidance  navigating through these challenges, feel free to book a consultation with us to discuss your options.

[1]           In the recent past, a visa applicant’s job description as it related to their chosen ANZSCO Unit Group(s) was the key yardstick by which “skilled employment” was measured. Note that an applicant’s employment also had to be on the (now defunct) List of Skilled Occupations at Appendix 6 of the Operational Manual.

[2]           Immigration New Zealand Operational Manual, Skilled Migrant Category, at Instruction SM6.20(j).

[3]           Immigration New Zealand website, News & Notifications,<https://www.immigration.govt.nz/about-us/media-centre/news-notifications/skilled-migrant-and-essential-skills-visas-2014-changes-to-remuneration-thresholds>   (9 November 2018).

Posted in Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Politics, Practice of Law | Leave a comment

Applying for partnership visas

partners

Are you a New Zealand citizen or resident who has spent time overseas? You may have found yourself with a partner who is a citizen of another country.

You will discover that your overseas partner is not able to live with you in New Zealand unless they hold a Visa which allows them to do so.

Or, you might be a New Zealand citizen or resident who while in New Zealand have found yourself with a partner who is a citizen of another country. This partner might hold a Student or Essential Skills Work Visa, but not a Residence Visa and so cannot stay in New Zealand permanently.

People usually do not choose a partner based on whether they can get a Visa to be in New Zealand, but can confront this difficulty once a relationship is in place, when a couple determine they want to live together in New Zealand. The process of securing a Visa for a partner to live in New Zealand permanently is often not easy.

A New Zealand citizen or resident can support an overseas partner for the following types of Visa;

  1. Partnership-based Work Visa, where the couple are living together in a genuine and stable relationship. This is a Temporary Visa which allows an overseas partner to live and work in New Zealand in any job. A Partnership-based Work Visa is granted for 12 months. The Visa holder can apply for a further 12 months after the first 12 months.
  2. Partnership-based Residence Visa, where the couple has been living together in a genuine and stable relationship for at least 12 months. This is a Residence Visa which allows an overseas partner to live, work and study in New Zealand permanently, with 2 years of travel conditions. A further application for Permanent Residence is required if the overseas partner is to be able to live, work and study in New Zealand without travel conditions.

Immigration New Zealand will determine whether a couple is living together in a genuine and stable relationship, based on documents presented in paper form. It is uncommon that Immigration will interview a couple in person. Immigration instructions define “living together” as “sharing the same home as partners”, and “genuine and stable partnership” as “genuine, because it has been entered into with the intention being maintained on a long–term and exclusive basis” and “stable, because it is likely to endure”.

In many cases, a partner wanting to apply for Residence in New Zealand, will first need to apply for and be granted a Partnership-based Work Visa, because the processing time for this type of Temporary Visa is much faster than a Partnership-based Residence application. They also need to be on a valid visa the whole time they are in New Zealand, even if a Residence application is already underway.

Sometimes a Partnership-based Visitor Visa must also be applied for too, to give a couple time to live together in New Zealand before applying for a Partnership-based Work Visa and then a Partnership-based Residence Visa in due course.

In some situations there might be a culturally arranged marriage involved, which requires a special type of Visitor Visa be applied for and granted first.

There can be multiple steps involved in a partnership application and the process is often not straightforward. People often don’t realise just how much evidence of the relationship is needed in order to satisfy Immigration that they are really living together, and that they will continue living together for the long haul.

Laurent Law has much experience in handling a range of different situations relating to partnership Visas. If you require assistance with this type of application, phone our office for an appointment so we can discuss further.

Posted in Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas | 4 Comments

Migrant Exploitation – a Clear and Present Danger for Employees

 

In the last couple of years – and especially since the Labour Government took office last year – both Immigration New Zealand and the MBIE Labour Inspectorate have upscaled their efforts to find and punish employers who misuse the power imbalance between them and their foreign workers.  Usually the migrants are on Work Visas.

My colleague Peter Moses and I recently prepared and delivered a seminar to the Law Society Employment Law Conference, in which Peter spoke about the ways in which bosses could be prosecuted for various wrongdoing, from employing overstayers to firing staff in an improper way.

Types of Abuse

The worker usually needs the job to keep their visa, and some of them hope to use their employment to get Residence.  This means that they will put up with things that local people would not stand for, including:

  • Working well over the hours they signed up for – 60 or 90 hours a week instead of the 40 hours in their employment agreement;
  • Not being paid the wage they agreed to at the outset;
  • Being required to work weekends and holidays, for fear that they’ll lose the job if they refuse;
  • Getting their agreed wage, but having to pay a large sum back to the employer under the table – this is called “paying a premium”;
  • Providing personal services to the employer without pay, such as cleaning their house after hours.

Some of these stories make it to the media, like the conduct of subcontractors to Chorus; most do not.  In some of the worst cases, staff must give up their passport and their Eftpos card to the employer, and are effectively kept prisoner by being forced to live on the work site.  They submit to this because the employer threatens to go to Immigration and get them deported if they don’t agree.

Lack of Protection

INZ has in the past been criticised for failing to provide real safety for workers who come forward to report the abuse.  As the Government has more recently promised to battle workplace exploitation, you might expect that they would incentivise people to come forward – especially when officials know full well that migrants feel frightened to do this because they believe that it will expose them to being deported.  This becomes a real risk if they had to leave the job recorded on their visa, which means that they have breached their visa conditions.

Immigration Instructions do say that someone who reports exploitation can be considered for a replacement temporary visa.  Unfortunately, the rules are vague about what visa that person could get – will it be a Work Visa allowing them to find a new job, or a Visitor’s Visa which does not permit them to work?  INZ’s own fact page about this topic is imprecise.  This is understandable because the situations that come up will be many and varied, but it still gives little real comfort.

Furthermore, the migrant needs to tie their claim to quite specific acts or omissions for it to be treated as “exploitation” under the law.  These include:

  • failure to pay holiday wages required under the Holidays Act;
  • paying below the minimum wage, which is now $17.25 per hour;
  • paying a premium (see above);
  • actions to prevent the employee from leaving the job or travelling out of New Zealand; or
  • obstructing the employee from finding out about his or her legal rights in NZ.

A non-specific allegation of being badly treated by an employer will not suffice, even if it is genuinely felt by the victim.

In my view, if Immigration and the Labour Inspectorate are committed to stamping out abuse of foreign employees, some iron-cast guarantees of protection, and of outcomes, need to be set out.  For example, INZ’s statement reads:

We’ll let you apply for another visa to stay in New Zealand, even if you have been working on the wrong visa.

Allowing someone to apply does not mean that a visa will actually be given.  Often employees are complicit in the exploitation, out of fear of losing the status which they acquired legitimately.  They face a real risk of being declined their replacement visa and then facing deportation for breach of their last visa.  Even the promise of a new Work Visa, say for 6 months, to allow them to search for another job, would be a significant improvement.

If you, or someone you know, believes that they are being treated badly by an employer in the ways described above, then it may be safest to get professional help to avoid the possible pitfalls to be faced in setting the situation right.

A Warning to Employers

Having said all this, it is apparent that the Ministry of Business, Innovation & Employment has been throwing more resources at exposing employers behaving badly.  The sharp end of this is prosecutions, which can attract fines of tens of thousands of dollars and (in the worst cases) imprisonment for years at a time.  These convictions have started coming through the Courts more regularly in recent years.

More likely, though, is that a company which keeps poor records, employs staff on the wrong visa, or has paid them in breach of their employment agreement or the legislation, could find it very difficult to hire migrant staff in the future.  If they have been penalised by the Employment Relations Authority or Employment Court, then they will be labelled a “non-compliant employer”.  They end up on a list of employers facing stand-down periods from 6 to 24 months, during which they cannot support anyone for a Work Visa.  Businesses on the list range from construction companies to medical centres.

We are called upon to advise employers who have legitimate concerns that they may have fallen foul of the rules.  It is possible to rectify matters proactively, but it must be handled carefully.

Posted in Business, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Politics | 1 Comment