Laurent Lore - Corporate Edition March 2024

Laurent Lore

Corporate Edition

March 2024

Good morning Simon,

Since our last Newsletter the new government has brought in Erica Stanford as Immigration Minister. She is aided by not one, but two Associate Ministers, Chris Penk and Casey Costello.

This administration has yet to make its own mark on immigration settings. However, the Minister may come under increasing pressure as time goes on to turn down the tap on the inflow of migrant workers. If unemployment ticks up significantly in the next few months, and other concerns such as migrant exploitation continue to cast doubt on the visa system, some gears may be shifted to slow down the influx of people on the Accredited Employer Work Visa (AEWV) scheme. With 77,000-odd AEWVs granted in the year to February 2024, opponents of migration have ammunition to argue for a cut-back.

We continue to fix the complicated and troublesome cases for visa applicants and for employers. Get in touch if you feel that you need professional help.

Simon Laurent

Principal

slaurent@laurentlaw.co.nz

The Blight of Migrant Exploitation

Stories of Work Visa holders, stranded in New Zealand without the job they were promised, continue to haunt the news feeds.

I make no apology for repeating the advice provided in our last Newsletter from 2023.

Here is what to watch out for:

An agent offering to pay you a commission for your AEWV Job Tokens to be used for someone's visa application. They probably got this money from the worker, and you could be prosecuted for (indirectly) charging a premium on employment, an offence under the Wages Protection Act 1983.
An agent or immigration adviser offering you a candidate sight unseen whom they claim has the skills you need. Ask to see the evidence that the person has the qualifications or experience. Keep a record of everything. Companies have been sent workers who can't do the job, and have to let them go. That raises the risk of a Labour Inspectorate or Immigration investigation for exploitative practices.
If a worker from another business comes to you because they have been fired, do not take them on until they have first got a Variation of Conditions of their Work Visa which names your company as the employer. Otherwise, you can be charged with employing someone in breach of their existing visa conditions, which carries a maximum $50,000 fine.

We have acted for both employers and immigration advisers who have found themselves on the wrong end of these scams, and are being blamed for the migrant's distress. Some of these are tied to grievances filed with the Employment Relations Authority. If you identify something like this brewing in your workplace, get legal advice before the matter escalates further.

Losing Accreditation

In the first 18 months of the AEWV scheme, Immigration New Zealand basically let just about every firm get accredited with no questions asked. More resources were directed to verification and enforcement since mid-2023 when the horror stories started to come out in force.

A number of employers have had their accreditation suspended while they are being investigated. One practical effect is that any Work Visa application based on a job offer from that company will be put on hold until (hopefully) the suspension is lifted. Nor can the suspended employer support any new Work Visa applications with the Job Tokens they have, until the suspension ends.

INZ can also revoke accreditation entirely if:

it determines that the employer no longer meets the requirements of being accredited (of which there are many);
the employer refuses to allow INZ to conduct a site visit without reasonable justification;
the employer, without good reason, does not supply information requested by INZ for its verification or compliance work within 10 working days.

Just one way in which accreditation can be lost is where the company continues to employ someone after their Work Visa expires. This includes people who are on an open visa (like a Post-Study Work Visa) and who say nothing when they become an overstayer. The employer is expected to know the visa conditions of everyone they employ, and to use VisaView to check on possible new hires. Ignorance is no excuse.

There is no right of appeal against accreditation being suspended or revoked. The only remedy is a costly application for judicial review to the High Court. Again, getting legal advice before things go too far is vital to the interests of the business, especially if it relies on migrants for a significant part of its workforce.

Get Your Worker Information Sorted Out

The Worker Protection (Migrant and Other Employees) Act 2023 has introduced a set of infringement offences for which employers who hire migrants may be liable. These are:

employing someone who is not entitled to work for the employer;
employing someone in breach of the conditions of their visa;
failing, within 10 working days of request, to supply documentation about employees whose Work Visas allow them to work for that employer.

An infringement offence is less severe than a criminal offence - think a speeding ticket as opposed to a dangerous driving charge. The first two of these new rules are therefore something of a relief, because they enable officials to impose a modest fine on an employer for - say - having a migrant doing a different job than the one named on their Work Visa - without the employer getting a criminal record.

The last item is a heads-up that employers need to keep good records of having done all the things that they declared they would do in the Accreditation application. For example, they should hold a signed document from the Work Visa holder that they were given time to complete the Employee Learning Modules on the ENZ website, and that they completed them within the first month. This goes for all the "settlement support activities" that accredited employees agree that they will carry out.

If a company hasn't got this evidence now, then they had better put it together PDQ before MBIE comes knocking.