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 what applies to both migrant workers and Kiwi workers, applies equally. For example you need employment contracts, holiday and pay obligations are the same, your interview process does not need to eb different, etc. But where there are differecnes, such as with visas, then special care needs to be taken so employers do not inadvertantly break the law.

What is the same?

Things whcih apply to both Kiwi and migrant employees equally are any of the provsions found in 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.

  • A proper employment contract is required
  • All employees get 4 weeks paid annual holiday and 11 days statutory holidays
  • Sick leave and bereavement leave provisions
  • minium wage
  • Employers cannot make unauthorised deductions from wages
  • Employers must meet their tax obligations
  • parental leave obligations
  • Discrimination and human rights obligations

Most employers will be reasonably aware of these obligations and when misunderstanding arise they are often easily sorted out with Kiwi workers.

However, these can cause major problems when they occur with migrant employees. If MBIE finds an employer in breach of any of these provisions 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.

What is substantively different?

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 to be trained for the position
  • 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
  • All of this must be clearly proved before a visa can be granted

The task of proving beyond reasonable doubt that all these factors and any other requirements of the specific application have been met comes under the jurisdiction of 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 a 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 an employee's visa application. 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. 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.

How a Licensed Adviser protects employers

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 do 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 docuements 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 employers 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 whcih may affect them negatively.

Search our free immigration advice database for more information

https://immigrate.kiwi.nz/information/latest-news-archives/58-what-is-clerical-work-what-can-non-licensed-people-do

https://immigrate.kiwi.nz/information/latest-news-archives/38-work-visas-employers-information-31-12-2016

https://immigrate.kiwi.nz/information/latest-news-archives/57-what-is-proof