Complying with Immigration & Employment Law
Tuesday November 15, 2016
As an employer you’ll want to assist your migrant employees so they can start work and transition into your workplace and their new community as easily as possible. At the same time, you’ll need to ensure that your interactions with potential migrants and any migrants currently working for you are within the law.
As an employer, you have an obligation under the Immigration Act 2009 to check if a potential employee has the legal right to work for you in New Zealand before they commence employment. The Immigration Act is clear that employers must not hire migrants who are not entitled to work for them. The onus and obligation is placed on the employer.
Candidates do not need a valid visa to be to be offered a job – but they must have one that allows them to work in New Zealand by the time they begin working for you, sign an employment agreement, and start their employment.
It is easy to check whether your prospective employee is allowed to work for you. But it is important for applicants to give their authority for you to use their information for the purpose of confirming work entitlement and identity.
There are penalties for hiring a person who is not entitled to work for you. It is important to check and keep records to show you that you completed a check.
The maximum penalty under the Immigration Act 1987 for employing a foreign national who is not entitled to work in New Zealand is a fine of NZD $10,000.
The maximum penalty for allowing or continuing to allow a foreign national to work while knowing that person is not entitled to is a fine of NZD $50,000.
The maximum penalty for exploiting a foreign national who the employer has allowed to work while knowing that person was not entitled to work, is imprisonment for seven years or a fine of NZD $100,000, or both.
- Say “I didn’t know they didn’t have a valid visa to work in New Zealand” – it is legally your responsibility to check all your staff can legally work in New Zealand;
- Give immigration advice to a candidate unless you are a Licenced Immigration Adviser, or exempt from being licenced for example being a lawyer;
- Hire a migrant with a temporary visa to provide commercial sexual services;
- Hire migrants and pay them less or offer them conditions below New Zealand’s workplace minimums - they have the same rights as New Zealand citizens and residents;
- You can legally offer a job to an overseas candidate who doesn’t have a work or residence visa.
If you find a candidate who requires a visa to be able to start working for you, they will need a little more time for this to take place and some assistance from you. The first step is to provide them with an offer of employment, which includes a clause saying something like “Subject to immigration criteria being met”.
Your migrant candidate can then use this offer of employment in support of their visa application
Some visas restrict migrants to the:
- Number of hours they may work;
- Industry or occupation they work in;
- Region that they can work in;
- Employer they can work for.
New Zealand Employment law applies equally to migrants and New Zealand citizens and residents. You must offer work conditions to migrants that are no less than the legal minimums for New Zealanders.
These minimums include:
- A written employment agreement;
- Minimum pay;
- Break entitlements;
- Annual and public holidays;
- Sick, parental and bereavement leave;
- A safe workplace;
- Accurate pay and holiday records.
If you’re employing migrants, you must offer the same pay and conditions that you would offer a New Zealand citizen to do that job.
Article appearing in Next Business Rotorua Now by Dharmen Prasad, Solicitor, Holland Beckett Lawyers Tauranga.
Dharmen is an experienced employment and immigration lawyer who is able to assist employers and individuals in relation to all employment and immigration matters, which includes residence applications, application for entrepreneur based visas, student visa, work visas and visitors visitor. Dharmen also has experience working on Immigration Tribunal Appeal (IPT) matters as well. If you require specific advice or assistance, please contact one of the lawyers in the Employment Team at Holland Beckett on 07 578 2199.
The information contained in this article is general information only, and does not constitute specific legal or other professional advice and should not be relied on as such. Readers should obtain specific advice before making any decisions or taking any action based upon information contained in this document.