Employers who hire migrant workers in New Zealand need to manage both immigration and employment law obligations carefully. Even where a breach is unintentional, the consequences can be significant, particularly for businesses that rely on migrant labour.

This article outlines the main obligations on employers, the risks of non-compliance, some of the most common issues we see in practice, and practical steps businesses can take to reduce the risk of breaching the law.

At a high level, employers must:

• • employ only individuals who are legally entitled to work in New Zealand, and ensure the work they perform is consistent with their visa conditions;

• • comply with the terms of the employee’s visa, their employment agreement, and minimum employment standards;

• • pay wages correctly and meet statutory obligations relating to leave, and records;

• • avoid passing prohibited costs to migrant workers, including certain recruitment and employment-related costs like branded uniform or health and safety equipment; and

• • maintain accurate records and be able to demonstrate compliance if requested by regulators.

If an employer breaches immigration law, the consequences can include:

• • loss of accredited employer status;

• • being stood down from supporting visa; applications for migrant workers;

• • infringements; and

• • in more serious cases, criminal prosecution and imprisonment.

For businesses that depend on migrant workers, these risks are not only legal issues. They can also create real operational and reputational problems, including delays in recruitment, an inability to fill key roles, and additional scrutiny on future applications.

Why the stand-down list matters

A stand-down can follow a breach of immigration or employment law and may accompany other enforcement action. Employers who are stood down are publicly listed and are prevented from supporting visa applications for migrant workers during the stand-down period.

The end of a stand-down period does not necessarily restore an employer’s ability to recruit migrants immediately. If accreditation has been lost, Immigration New Zealand must still be satisfied that the employer is likely to comply with its obligations going forward before accreditation will be granted again.

The difficulty for many employers is that compliance problems often arise from ordinary workplace changes or administrative oversights rather than deliberate misconduct.

Common compliance issues

1. 1. A migrant worker is rostered for hours that do not match their employment agreement or visa settings, whether that means working fewer hours than guaranteed or more hours than permitted.
   2. Wages or holiday pay are underpaid, or payroll errors failing to accurately reflect minimum employment entitlements.
   3. A worker is asked to perform duties, work in a role, or work at a location that is not consistent with their visa conditions.
   4. The business changes an employee’s terms and conditions, such as implementing a promotion that puts the employee in breach of their visa conditions
   5. The employer passes on costs that should not be charged to the worker, including certain recruitment costs, training costs, or work-related equipment costs.
   6. The employer does not keep adequate records to show that visa checks, hours, wages, leave, and onboarding obligations have been met.

A common misconception is that it is solely the worker’s responsibility to ensure they are complying with their visa conditions. However, employers also carry clear obligations. If a business employs someone unlawfully or allows them to work in breach of their visa conditions, the employer may face liability even if the issue was not intentional.

An employer cannot rely on a lack of knowledge of visa conditions to avoid consequences. An employer needs to be able to show that the business took reasonable precautions and exercised due diligence to ensure that the person was entitled to undertake the work in question.

Because even relatively minor non-compliance can affect future dealings with Immigration New Zealand, employers should treat immigration compliance as an ongoing business process rather than a one-off check completed at the recruitment stage.

Practical steps to reduce risk

Some practical steps employers can take include regularly checking visa conditions and expiry dates, ensuring payroll and rostering align with employment agreements, reviewing proposed changes to duties or location before they are implemented, keeping clear wage and leave records, and training managers so they understand that what may appear to be a simple operational change can have immigration consequences.

How we can help

We can assist employers to identify compliance risks before they become enforcement issues.  Early advice can often prevent a manageable issue from becoming a much more serious operational problem.

Need immigration advice or support? Get in touch with the team at Copeland McAllister. Phone 03 211 0153 or email admin@cmalaw.co.nz.  

Disclaimer: This update provides commentary on employment law, health and safety and immigration topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.