The interplay between immigration and employment law Marcus Beveridge & Rita Worner Queen City Law May

Overview Recruitment - Definition of "business purposes" for visitor visas - Main categories of work visas - Residency (Skilled Migrant Category) Compliance - Employer obligations and best practice - Consequences/penalties for employers Termination of employment - Personal grievance claims by migrants

Temporary Visas Temporary Entry VisitorWorkStudentTransitEssential Skills PartnershipTalent Specific Purpose Working Holiday

NZ Residency Residency Business / Entrepreneur Skilled Migrant / Talent FamilyInvestment

Visitor visa ("business purposes“) Essential Skills visa Specific Purpose visa Employer Accreditation Residency Recruitment

Business Purposes Less than 3 months in NZ Not undertaking employment as per INZ definition – Representatives on official trade missions – Sales representatives of overseas companies – Overseas buyers of NZ goods and services – Business consultations/negotiations involving authorised representatives of overseas company

Essential Skills Job offer Labour Market test – Advertising – Essential Skills in Demand List Consistency with ANZSCO

Specific Purpose Job offer or invitation Evidence of relevant qualifications or experience Information relating to specific purpose and length of time needed in NZ

Employer Accreditation Sound financial position Human resources policies of a high standard Commitment to training and employing New Zealanders Good workplace practices

Residency Job or job offer Job description consistent with ANZSCO Claim minimum of 100 points – Age – Qualifications – Experience – Job offer

- Employer obligations and best practice - Consequences/penalties for employers Compliance

Employer Obligations Always check potential employee’s immigration status Visaview service Keep record of visa Make note to check again prior to visa expiry date

Worker Exploitation Bill includes the exploitation of lawful temporary migrant workers as an offence Why the current law insufficient: There is currently a gap in legislation whereby employers who exploit unlawful workers can face heavy sanctions, yet those who exploit lawful migrant workers face a low risk of being held to account. This will mean that migrants in this group are protected in the same way as unlawful migrants.

According to anecdotal evidence from the Labour Inspectorate and Immigration New Zealand (INZ), in many cases, those who exploit migrant workers are themselves former migrants. Under the 2009 Act, temporary visa class holders may be deportable if they exploit migrant workers but residence class visa holders are not. Residence class visa holders who knowingly employ unlawful workers or exploit migrant workers within the first ten years of being granted a residence class visa are liable for deportation. Liability for deportation

Penalties Section 357 Penalties: employers (1) A person convicted of an offence against section 350(1)(a) is liable to a fine not exceeding $50,000. (2) A person convicted of an offence against section 350(1)(b) is liable to a fine not exceeding $10,000. (3) A person convicted of an offence against section 351(1) is liable to imprisonment for a term not exceeding 7 years, a fine not exceeding $100,000, or both.

Personal Grievance Nicholas Ten Hoorn Boer v Reid Research Services Limited [2012] NZERA Auckland 142 Hulin Chen v Aaron & Coma Limited [2011] NZERA Auckland 373