Information for Employers

Employing migrant workers and be immensely beneficial to your business, but it has to be done right and there are many differences to be aware of compared to hiring Kiwi workers. Fundamentally there is much in common, and things that apply to both migrant workers and Kiwi workers, applies equally. For example you need employment contracts, holiday and pay obligations are the same, and most aspects of employment law will apply. Your interview process and how you select staff does not need to be different, but where there are differences, such as with visas and some employment agreement terms, then special care needs to be taken so employers do not inadvertantly break the law.

From mid 2022 all employers had to be accredited to be able to employ migrant workers on new work visas. With the introduction of the AEWV work visa there were several big changes to how things are done, and continual change is normal with this visa. We provide a complete service to manage all the details for employers as well as migrant employees.

If you need information about becoming an accredited employer, please click here

What is the same when employing Kiwis?

Things which apply to both Kiwi and migrant employees equally are any of the provsions found in legislation such as the Employment Relations Act 2000. Minimum Wage Act 1983, Wages protection Act 1983, Income Tax Act 2007, Holidays Act 2003, Health and Safety at Work Act 2015 and so on. This includes things like:

A proper employment contract is required
Annual holidays and statutory holidays
Sick leave and bereavement leave provisions
minimum wage - but a different rate for various visas
Employers cannot make unauthorised deductions from wages
Employers must meet their tax obligations
parental leave obligations
Discrimination and human rights obligations
Good faith management of the employment relationship

Most employers will be well aware of these obligations and manage these on a daily basis. When there are issues it is usually not such a problem to sort out with Kiwi workers.

However, when issues occur with migrant employees the solution may need to be thought out a little more carefully. If MBIE finds an employer in breach of any employment, immigration or tax requirements and they are investigated and prosecuted, this can result in a prohibition in hiring migrant workers, and will affect any future applications of workers even after the prohibition has ended. The risks and penalties are generally lower if you are only hiring Kiwis, but with migrant workers it is different.

What is different to employing Kiwis?

With migrant workers the need for a visa introduces 2 very important pieces of legislation; the Immigration Act 2009 and the immigration Advisers Licensing Act 2007. The visa is granted (or not), depending on factors releated to the Immigration Act, especially:

There must be no Kiwis available to work or able to be trained for the position. The need to advertise for the job is to prove that this requirement is met.
The migrant worker must be qualified or experienced for the role offered
The employer must be a good employer in terms of the factors above
The worker must be of good health and character
Some terms in the IEA that are acceptable for Kiwis are not acceptable for AEWV visas, for example wage rates, 90 day trial, variable working locations, etc
All of this must be clearly proved before a visa can be granted

Who can make a visa application?

The NZ Government has made immigration advice restricted work and only certain people are legally able to give immigration advice, as definied in the Immigration Advisers Licensing Act 2007. The Act sets out that only specific licensed or exempt people are legally able to prepare a visa application using their knowledge of the system - in other words preparing an application that is more likely to succeed than to fail.

people who are legally able to prepare and submit a proper visa application are:

The applicant by themself
A licensed immigration adviser
A registered lawyer
Government or diplomatic staff, etc

An employer is not exempt, and therfore cannot legally prepare and submit an employee's visa application above the level of clerical work (filling out the form only with information provided by the employee and nothing else). The penalty for doing so is a fine of up to $100,000 or 7 years in jail. This provision was put into effect because of the bad quality advice migrants were receiving from unskilled and unscrupulous people. Even with good intentions a badly prepared application puts the hopes and dreams of migrants at significant risk. The immigration advisers licensing regime is in place to protect migrants, and employers must respect this. Employers who want to help their employees by doing visa work are actually breaking the law, and potentially exposing their employees to a high degree of risk.

Encouraging your employee to use a licensed professional also lessens the chance of them falling victim to and paying too much to scammers. Profesisonals are required to charge reasonable fees, while scammers can charge what they like.

How a Licensed Adviser protects employers as well

A licensed immigration adviser will work with the employer to make sure that the process is being done in a legally and morally correct manner. Engaging a licensed adviser to manage the application means that the employer will not be in breach of the Immigration Advisers Licensing Act, but also a good adviser will make sure that the supporting documents and information provided is true and correct and will not cause any other problems along the way. By providing documents that are not true or haven't been prepared proprerly may cause bona fide issues and cast doubt on the applicant or employer's honesty, even when there was no intention to deceive.

The costs of engaging a professional should be met by the applicant and this is a common expectation. Employers are welcome to help their employees with fees and so on, but there is no obligation to do so. Professional fees should always be reasonable for the work involved, and most people see this as insurance against making mistakes which may affect not only their current application but potentially their entire ability to settle in New Zealand.

Correct processing of the visa is an example of how using a profesisonal is beneficial to you. Recently we found that an employee who did her own visa application put in a much higher payrate on the application form than was actually offered. The visa was approved at this higher payrate, which then the employer is obliged to pay, or face the possibility of being investigated for migrant exploitation. The migrant as well could face issues when it comes time to apply for residence because she provided false information in the application. This creates multiple issues for an employer that could have been avoided if the application was done profesionally.

Contact

Contact us to see how we can manage your immigration compliance needs efficiently and effectively. As with any professional service by trusting the management of compliance work to licensed profesisonals, business owners can spend less revenue earning time on bureacracy and paper work, and more on growing your business.

email: dan@immigrate.kiwi.nz

phone: 027 275 2677