Here It Comes – the New Work Visa Regime

Way back in February 2019 we alerted people to Immigration’s plans to overhaul employer-assisted Work Visa policy. The essential features of the scheme were laid out by Sahar Shamia in a more recent blog in February this year. On 7 May 2021 Immigration New Zealand finally unveiled how the scheme will roll out.

As you can see, this has been a long time coming. The COVID-19 response put the brakes on a number of items in INZ’s change agenda. From the outset, though, it was clear that they were going to make it happen. So here’s how it goes . . .

The Timetable

Almost all current Work Visa streams based on a specific offer of employment are being shut down. However, most of them will still run as normal until 31 October 2021. The critical date is 1 November, when the new “3-gate” system opens for visa applications.

The first step along the way is the closure of certain categories on 30 June:

  • Accredited Employer (the existing scheme)
  • visas for labour hire companies
  • Approval in Principal to recruit Essential Skills Workers

From late September 2021, employers who want to hire migrant workers will be able to register for the new types of accreditation that are available. This will be an online system which INZ claims will be “largely automated”. Hopefully, this means that it will not take too much work either for employers or INZ staff to get through the inevitable flood of applications for accreditation.

A couple of visa classes are not affected by all of this, such as Religious Worker Visas. This is just as well for faith-based organisations, who would otherwise face a real struggle meeting the requirements of the new accreditation. Although the previous Minister of Immigration suggested a couple of years ago that it would be “Accreditation Lite”, we have yet to see the detail of what it involves, so that it is not wise to assume that this is going to be a walk in the park for those who need to get on board.

What Are the 3 Gates Again?

The existing visa process, in most cases, is very much “migrant driven” – that is, someone who wants a Work Visa is The Applicant all the way through. Their name is on the forms, and success or failure at every step of the assessment process belongs to them. The employer wanting to hire them merely supports the application along the way.

The new system shifts the focus – and, arguably, much of the burden – to NZ employers. It goes like this:

A. Employer Gate – Immigration decides whether employers are suitable to employ migrant workers. There are 3 main accreditation levels:

  • Standard — for employers who want to hire 5 or fewer migrant workers;
  • High-Volume — for employers who want to hire 6 or more migrant workers; and
  • Franchise/Labour Hire – for businesses which supply staff to third-party places of employment.

The criteria for accreditation by High Volume employers is more stringent than for Standard. Franchise/Labour Hire criteria may be even tougher again. It may become critical to decide whether you want to hire more than 5 people in a year. No-one has yet explained to me how some companies would reliably predict how many people they need 12 or more months in advance.

B. Job Gate – The job on offer is reviewed to see if it pays the market rate; the terms and conditions comply with employment laws; and the employer has done a labour market test if they need to do so. Note that a particular visa applicant does not feature here – this is all still squarely with employers.

C. Migrant Worker Gate – Finally, the migrant enters the picture. They apply for the Work Visa for the job cleared through the Job Gate, and offered by an Accredited Employer. They must be of good health and character, and have the skills to do the job..

It may be fairer to lay most of this process on employer companies, rather than individual migrants. It does suggest that employers will increasingly need professional assistance, both to apply for accreditation and to ensure that they have advertised their jobs properly. It also seems likely that, while an employer may have a qualified adviser working for them, migrants should have a separate agent who is looking out for their interests.

I’m an Employer – What Should I Do?

If the detailed policy for this scheme has been written, we haven’t seen it yet. There’s not much we can say about what employers will need to prepare right now. There are a few things to which you should start giving attention now, though:

  • Can you anticipate how many non-NZ people you might need to hire in the next year after November 2021?
  • Are your employment agreements up-to-date with the Holidays Act, parental leave, rest- and meal-break provisions, etc.?
  • If you already employ people on Work Visas, are the visas still valid and do they allow the person to work for you?
  • Have you documented how you are training and upskilling your existing staff to show that you are being a good employer, and giving opportunities to NZ employees to improve their skill-set? If not, put something in place now, and consider hiring an HR specialist firm to help you with that.

Those who have already been thinking about accreditation under the old system should hold off until the new programme opens for employers to enroll in September 2021 . Even though you can still apply for old-style accreditation, you can only use it to bring on new staff until the end of October. After that, any new hires must be under the new 3-gate system.

Will the Scheme Deliver?

The first challenge faced by Immigration NZ will be how it will handle the wave of new accreditation applications in September. It has been estimated in various places, including MBIE management, that there will be 25,000 employers wanting an accreditation ticket when the time comes. Even if we assume that a new online portal works flawlessly – and how many of them do that? – it is hard to believe that we aren’t going to end up with yet another backlog clogged with undecided applications for many months, if not longer.

The public-facing fact sheet published by INZ says:

Timeframes for providing further information are dependent on policy decisions and disruption caused by the COVID-19 pandemic.

I would read that disclaimer much more widely. The schedule that INZ has already put out may suffer project creep very early on. For example, there is no word on whether the online accreditation platform has even been written yet, much less tested.

According to official statements recently and in the past few years, the new scheme is meant to deliver higher-quality migrants to the job market, and to reduce migrant exploitation. As to the first point, concern is now being voiced that we may already be missing the boat on attracting high-skilled workers. The progress on vaccination programmes in other developed countries is upsetting our comfortable assumption that, just because we beat COVID-19 here last year, New Zealand remains the most attractive place on earth to live.

And worker exploitation? My opinion is that imposing accreditation will discourage some employers from hiring migrants via job-specific visas. Instead, they will switch their attention, even more than they do now, to University graduates who get 3-year Post-Study open Work Visas. This group can work for whomever they like without needing prior employer sponsorship. INZ and the Labour Inspectorate have no easy way of tracking who is working for whom, and under what conditions. Add to this the fact that Australian research has established that exploitation is more likely when migrants must rely on a single employer for their tenure in the host country. In that respect accreditation probably doesn’t make things worse, but it won’t deliver much worker protection.

About Simon Laurent, Lawyer

Principal of LaurentLaw Barristers & Solicitors. NZ immigration law specialist.
This entry was posted in Immigration Visas. Bookmark the permalink.

2 Responses to Here It Comes – the New Work Visa Regime

  1. Nitesh Narayan says:

    I’m the director of Yans hydraulic services and I started my company from 2013 and also I have been working as a hydraulic fitter from 2006 I am currently looking for a hydraulic company to offer me a job due to poor situation in Fiji

    Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s