The interplay between immigration and employment law Marcus Beveridge & Rita WornerQueen City LawMay 7 2014
OverviewRecruitment - Definitionof "business purposes" forvisitor visas - Main categories of work visas- Residency(Skilled Migrant Category) Compliance- Employer obligations and best practice - Consequences/penalties for employersTermination of employment- Personal grievanceclaims by migrants
Temporary Visas
NZ Residency
RecruitmentVisitor visa ("business purposes) Essential Skills visaSpecific Purpose visaEmployer AccreditationResidency
Business PurposesLess than 3 months in NZNot undertaking employment as per INZ definitionRepresentatives on official trade missionsSales representatives of overseas companiesOverseas buyers of NZ goods and servicesBusiness consultations/negotiations involving authorised representatives of overseas company
Essential SkillsJob offerLabour Market testAdvertisingEssential Skills in Demand ListConsistency with ANZSCO
Specific PurposeJob offer or invitationEvidence of relevant qualifications or experienceInformation relating to specific purpose and length of time needed in NZ
Employer AccreditationSound financial positionHuman resources policies of a high standardCommitment to training and employing New ZealandersGood workplace practices
ResidencyJob or job offerJob description consistent with ANZSCOClaim minimum of 100 pointsAgeQualificationsExperienceJob offer
Compliance- Employer obligations and best practice- Consequences/penalties for employers
Employer ObligationsAlways check potential employees immigration statusVisaview serviceKeep record of visa Make note to check again prior to visa expiry date
Worker ExploitationBill 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.
Liability for deportationAccording 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.
PenaltiesSection 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
