Immigration update and its interplay with employment law

Thursday, March 5, 2020

It has been announced that over the next 14 months, Immigration New Zealand will be making comprehensive changes to the way in which New Zealand employers recruit migrants.

Currently, there are six different temporary work visa pathways by which migrants can secure a work visa. By 2021, these pathways will be streamlined into one.

While the changes have been announced, as always, the devil is in the detail.

Contemplated work visa policy and labour market needs

It is likely that three ‘occupation driven’ avenues will be established to reflect regional and sectorial variations across New Zealand, these being:

  1. The highly paid pathway, as recognised through jobs with high remuneration: Employers who pay a prospective migrant worker 200% of the median wage (currently $104,000 per annum) will be exempt from a labour market test, irrespective of the geographic location and occupation type.
  1. The sector agreement pathway: Agreements made with certain sectors that have a high reliance on large numbers of foreign workers, will allow for a pathway. The agreements are anticipated to require collective industry action to address domestic labour market challenges. The idea is to promote the employment of New Zealand citizens or resident visa holders, in exchange for a greater access to foreign workers and reduced compliance costs.
  1. Regionalised labour market test pathway: A tailored framework which gives consideration to the number of New Zealand citizens or residents that may be available in the region concerned. It is intended that this differentiation will make it more achievable for employers in regions and positions where there are fewer local candidates available to fill positions, with a capable migrant employee, alternative.

Employers operating in the larger urban centres of Auckland, Wellington, Christchurch, Hamilton and Dunedin are due to face tougher labour market test assessments by Immigration New Zealand where the visa applicant will be earning less than the national median wage ($25.00 per hour).

Broadly, the current work visa policy is designed to fill genuine gaps in the labour market where those positions cannot be otherwise filled by a New Zealand citizen or resident. On paper, the changes to the work visa pathway aligns with the initial intention of Government in filling genuine gaps in the market. However, the way in which the labour market operates in practice versus on paper are seldom the same.

What remains clear is that with close to 200,000 people on some form of work visa in New Zealand at the end of 2019, is how much New Zealand’s economy will continue to rely on migrant workers.

A note on fixed term agreements

It has become reasonably commonplace for employers to employ migrant workers on fixed term agreements with the duration of the work visa acting as the reason for the fixed term nature of the employment.

In recent years, when assessing work visa applications, Immigration New Zealand has not accepted that the duration of a work visa constitutes a ‘genuine reason’ for the purposes of section 66 of the Employment Relations Act 2000.

What does this mean for employers?

When contemplating the offer of employment to a migrant worker (applying for a work visa) an employer is required to provide a different legitimate reason for the fixed term nature of the employment agreement. While the expiry of an employee’s visa may appear the most logical option, this does not align with the assessment applied by Immigration New Zealand.

A visa application presented on these terms will therefore likely be declined. The above assessment may prompt an employer to consider offering permanent employment (as opposed to a fixed term) to the migrant worker to ensure they do not fall foul of the requirements.  

What can be done to be proactive as an employer requiring migrant employees?

It has been proposed, that in in the not too distant future, all employers wanting to hire migrant workers will need to secure accreditation status. The thinking behind this change is to shift the focus to the employing party in respect of work visa applications. In practice, an employer will need to be ‘pre-cleared’ by Immigration New Zealand demonstrating that it complies with employment and immigration laws, has good work place practices, is committed to upskilling its workers and is financially stable.

In the coming 12 months we anticipate that Immigration New Zealand will receive an influx of applications for accreditation from employers.

The criteria in respect of an accreditation application is also due to change. The changes announced thus far will place a greater emphasis on the requirement to provide pastoral care for migrant employees and the induction processes that provide migrants with support to transition into life in New Zealand, among others.

With this in mind, if your business is looking to employ migrant workers, it will be more important than ever to ensure that you can satisfy the requirements in order to be granted accreditation status.

Please feel free to contact our specialist immigration team to meet for an initial consultation to discuss any immigration questions you may have.

 

Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.‚Äč

 

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