Is 2021 the year that Immigration NZ gets tough on law-breaking employers? - Visa Matters

Is 2021 the year that Immigration NZ gets tough on law-breaking employers?

OPINION: In mid-2021, Immigration New Zealand (INZ) will roll out a new temporary work visa which requires employers to be accredited – replacing six employer-assisted work visa categories.

As well as simplifying and streamlining the process for all parties, the new system will make it much more risky for employers to exploit workers from overseas.

Most employers I have dealt with have never had any compliance-related problem with INZ.

And even if they had, I have managed to counsel them to make improvements, and persuade INZ to give them a second chance.

But anyone working in the immigration industry knows of employers paying their overseas workers below the minimum wage, making their staff work unpaid extra hours – even asking workers to pay their own salaries.

Does this really happen in New Zealand? Why would an employer ask a worker to pay them? Shouldn’t it be the other way around?

Yes, it happens.

Workers need jobs to qualify for residence or for three-year work visas, and INZ requires those jobs to be paid at $25.50/hour or higher.

Some workers are prepared to pay for their job offer or ‘top up’ the rate their employer pays them so that it meets the $25.50/hour requirement – a crooked practice by both parties.

People who have already paid large sums of money to study in New Zealand (and often borrowed money to pay for studies) may also be prepared to pay similarly large amounts for jobs which they think will guarantee their future here.

For example, a skilled job offer outside Auckland scores 80 points – exactly half the 160 points they need to qualify for residence under the Skilled Migrant Category.

It doesn’t always go to plan, of course. INZ is alert to possibly non-genuine job offers.

It also goes hunting for evidence of payments from employees to their employers, such as happened in this 2019 case, which was appealed to the Immigration and Protection Tribunal.

What is the government doing about exploitation?

From mid-2021, INZ will require all employers to apply for accreditation if they wish to support employees’ applications for a new employer-assisted work visa.

Employers who only hire working holiday visa holders (or others on ‘open’ work visas) will not require accreditation.

Employers proven to have recently breached employment or immigration law will be refused.

Here are some examples of employers who are unlikely to be granted accreditation:

  • Those who have employed overseas workers who don’t hold visas, or in breach of workers’ visa conditions. For example, employing a visitor visa holder who is not allowed to work, or employing a work visa holder in a different location to the one allowed by their visa.
  • Those who have failed to pay workers according to their employment agreements.
  • Those who have been identified by the Labour Inspectorate as breaching employment law and are on the inspectorate’s ‘stand-down list’.
  • Those whose businesses have not complied with company and taxation law.
  • Those who have provided false or misleading information to INZ.

How will accreditation work?

Initially, employers will need to complete a declaration form on the above topics. INZ will review employers’ compliance records and, if there are no recent adverse findings, the employer’s accreditation will be approved for 12 months.

For higher risk employers, labour hire companies and franchise employers, INZ may ask for proof of compliance with employment and immigration law.

INZ might ask for timesheets, payroll records, employment agreements, training records – anything, really.

INZ can also require this evidence after accreditation has been approved – for example, if a worker complains about their employer.

If the employer refuses to provide any required evidence, or if the evidence provided reveals breaches of employment or immigration law, an employer’s accreditation may be revoked.

There will be different types of accreditation – standard, high-volume, labour hire and franchise employers.

About 90 per cent of employers supporting work visa applications will need to apply for standard accreditation, which is the process I have described above.

INZ expects about 22,000 employers will need to apply for standard accreditation this year.

High-volume employers (around 2000 employers), labour hire employers and franchise employers will need to meet additional requirements.

For example, high-volume employers must commit to training and upskilling and improving pay and conditions over time.

Will the new regime catch the bad eggs?

That remains to be seen, but overall it protects the interests of migrant workers and good employers who want to do things the right way.

The stakes will be higher for employers who risk not being granted accreditation or losing accreditation and their ability to hire overseas workers.

DISCLAIMER: This article does not constitute immigration advice. Individuals need to seek personal advice from a New Zealand licensed immigration adviser or lawyer to assess their unique situation. Ankur can be contacted at info@visamatters.co.nz.

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