New Zealand: Problems with work visas for employees of non-accredited labour hire companies
Immigration New Zealand (INZ) seem to be taking a renewed interest in temporary work visa applications that are submitted for employees to join a business where the technical employer of the individual is a Labour Hire Company.
As many readers of this article will be aware there is a specific accreditation scheme in place for Labour Hire Companies who are operating in the region of Canterbury supplying migrant labour into the constructions sector, however, there is no such mandatory accreditation to be able to place employees under labour hire contracts in regions outside of Christchurch.
In due course, at some point in 2021 (exact date to be released) mandatory accreditation for all Labour Hire Companies will be put in place nationally.
While that may be seen as a very distant policy change that non-accredited Labour Hire Companies need not worry about now, our firm has just had a case come to us where INZ has pushed back and moved to decline an application for a temporary work visa for an individual (outside Canterbury) who was employed by a non-accredited Labour Hire Company under a very under utilized part of the policy.
Under the Essential Skills Work visa policy an INZ immigration officer must be satisfied that the employer is the direct employer, responsible for such things as payment of salaries; PAYE tax instalments; conditions of employment; and day to day supervision of the workplace/employee. In the matter that was raised for our assistance, the individual concerned was being contracted as a Hotel Manager, although it was on a long-term basis and INZ is of the view that as the non-accredited Labour Hire Company was not responsible for the day to day supervision of the work place and the employee in question, they could move to decline that temporary work visa.
The use of this particular part of the policy should be a warning to all non-accredited Labour Hire Companies and their migrant employees. It is apparent to us, that in the lead up to compulsory accreditation INZ are going to undertake greater scrutiny in relation to these types of employment arrangements, and ultimately, they can utilise the policy to decline the temporary work visa application in question if perhaps they feel that the non-accredited labour hire company may not be operating at a level they expect of an Accredited Labour Hire Company.
Interestingly, even though there is an accreditation process in for Labour Hire Companies, this policy could technically be used to decline work visas of those Accredited Labour Hire Companies too. It is our view however that most likely this particular policy section was overlooked when the labour hire accreditation process was bought in as a mandatory requirement for Canterbury based Labour Hire Companies in the construction sector, therefore, the risk in respect to the negative operation of this part of the policy is really for non-accredited Labour Hire Companies.
Labour Hire Companies that are not accredited and are supplying migrant labour should immediately look to secure accreditation status with INZ. We have assisted many companies to obtain accreditation for operations outside the Canterbury region and it is our view also that the accreditation process in place now is likely to be less stringent than the new policy that most likely will be introduced in 2021; so is certainly a good time to look at applying.
Workplace Law Team
If you have any queries in respect of the above, or any other workplace law issues, please contact a member of Lane Neave’s Workplace Law Team:
Employment: Andrew Shaw, Fiona McMillan, Gwen Drewitt, Maria Green, Hannah Martin, Alex Beal, Giuliana Petronelli, Ana Fruean, Elise Wilson, Abi Shieh
Immigration: Mark Williams, Rachael Mason, Daniel Kruger, Nicky Robertson, Hetish Lochan, Julia Strickett, Rita Worner, Lavinia Shanks, Ken Huang, Sally Stone, Shi Sheng Cai (Shoosh), Josh Templeton, Mary Zhou, Sarah Kirkwood, Janeske Schutte, Isaac Huang, Sati Ravichandiren, Lingbo Yu, Mengying Wang
ACC: Andrew Shaw
Health and Safety: Andrew Shaw, Fiona McMillan