When you recruit and hire migrant workers, you must comply with employment and immigration laws. Under these laws, employers have certain responsibilities and obligations.
Employers are legally able to offer a job to an overseas candidate before they have a work or resident visa, but by the time they begin working for you, they must hold a valid visa that allows them to work in New Zealand, and they must have a signed employment agreement.
As an employer, you have an obligation under the Immigration Act 2009 to check if a potential employee has a legal right to work for you in New Zealand before they commence employment. The Immigration Act is very clear that employers must not employ migrants who are not entitled to work for them. The onus and obligation is placed on the employer.
It is easy to check whether your prospective employee is allowed to work for you using Visa View. But is important for them to give their authority to you to use their information for the purpose of confirming work entitlement and identity.
There are penalties for hiring a person who is not entitled to work for you. It is critical that you keep records to show you have completed the check. The maximum penalty for employing a migrant with no work entitlements is a fine of $10,000; the maximum penalty for allowing a migrant to work knowingly they have no work entitlements is a fine of $50,000; and the maximum penalty for exploiting a migrant to work knowingly they have no work entitlements is imprisonment for seven years or a fine of $100,000 or both.
- Say “I didn’t know they didn’t have a valid visa to work in New Zealand”. It is legally your responsibility to check all your staff can legally work in New Zealand, using Visa View
- Give immigration advice to a candidate unless you are a Licenced Immigration Adviser, or exempt from being licenced (e.g. Citizens Advice Bureau, lawyers.)
- Hire a migrant with a temporary visa to provide commercial sexual services.
- Hire migrants and pay them less or offer them conditions below New Zealand’s workplace minimums. Remember, they have the same rights as New Zealand citizens and residents.
If you do find a candidate who requires a visa to be able to start working for you, they will need some time for this to happen and they will also need some assistance from you.
The first step is to provide them with a written offer of employment, which includes a clause something like “subject to obtaining a valid visa”. If it is an existing migrant employee applying for a further work visa with your company, you may need to provide a fresh employment agreement or an addendum confirming terms and conditions.
Depending on the work visa category, the written offer of employment must only be provided after the recruitment process is completed.
Your migrant candidate can then use this offer of employment in support of their visa application.
New Zealand Employment law applies equally to migrants and New Zealand citizens and residents. If you are employing migrants, you must offer the same pay and conditions that you would offer a New Zealand resident/citizen to do that job.
You must offer work conditions to migrants that are no less than the legal minimum for New Zealanders. These minimum include:
- Written employment agreement (see business.govt.nz for more information)
- Minimum pay
- Break entitlements
- Annual and public holidays
- Sick, Parental and Bereavement leave
- A safe workplace
- Accurate pay and holiday records
- Employment Relationship Problem Solving Process
- Employee protection provisions
Pacific Legal has extensive experience with assisting and advising employers about their responsibilities and obligations under the immigration and employment laws in New Zealand. Contact us firstname.lastname@example.org, or 0800 722 534 with your enquiry.