The interplay between immigration and employment law

Marcus Beveridge & Rita WornerQueen City Law

May 7 2014

Overview

• Recruitment - Definition of "business purposes" for visitor visas - Main categories of work visas - Residency (Skilled Migrant Category) • Compliance - Employer obligations and best practice - Consequences/penalties for employers •  Termination of employment - Personal grievance claims by migrants

Temporary Visas

Temporary Entry

VisitorWork Student Transit

Essential Skills

PartnershipTalentSpecific Purpose

Working Holiday

NZ Residency

Residency

Business /Entrepreneur

Skilled Migrant / Talent

FamilyInvestment

• Visitor visa ("business purposes“) • Essential Skills visa• Specific Purpose visa• Employer Accreditation • Residency

Recruitment

Business Purposes

• Less than 3 months in NZ• Not undertaking employment as per INZ

definition– Representatives on official trade missions– Sales representatives of overseas companies– Overseas buyers of NZ goods and services– Business consultations/negotiations involving

authorised representatives of overseas company

Essential Skills

• Job offer• Labour Market test– Advertising– Essential Skills in Demand List

• Consistency with ANZSCO

Specific Purpose

• Job offer or invitation• Evidence of relevant qualifications or

experience• Information relating to specific purpose

and length of time needed in NZ

Employer Accreditation

• Sound financial position• Human resources policies of a high

standard• Commitment to training and employing

New Zealanders• Good workplace practices

Residency

• Job or job offer• Job description consistent with ANZSCO• Claim minimum of 100 points– Age– Qualifications– Experience– Job offer

- Employer obligations and best practice - Consequences/penalties for employers

Compliance

Employer Obligations

• Always check potential employee’s immigration status

• Visaview service• Keep record of visa • Make note to check again prior to visa

expiry date

Worker Exploitation

• Bill includes the exploitation of lawful temporary migrant workers as an offence

• Why the current law insufficient: 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.

Liability for deportation

Penalties

• Section 357 Penalties: employers(1) A person convicted of an offence against section

350(1)(a) is liable to a fine not exceeding $50,000.(2) A person convicted of an offence against section

350(1)(b) is liable to a fine not exceeding $10,000.

(3) 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.

Personal Grievance

Nicholas Ten Hoorn Boer v Reid Research Services Limited

[2012] NZERA Auckland 142Hulin Chen v Aaron & Coma Limited[2011] NZERA Auckland 373