Publications
FYI
Employment Law
20 Oct 2010
Immigration Act Changes
The new Immigration Act 2009 (Act) is due to come into force on 29 November 2010, and will introduce tougher obligations on employers.
While there is no positive obligation on an employer to check a potential employee's entitlement to work in New Zealand under the Act, if an employer does not carry out this check and the person is not entitled to work, the employer could be prosecuted under the Act.
Under section 350 of the Act it is an offence for an employer to allow a non-New Zealand citizen who is not entitled to work in the employer's service to do that work. This offence can attract a fine of up to $10,000.
The maximum penalty for allowing or continuing to allow any person to work for an employer, knowing that the person is not entitled to do that work, is a fine of $50,000.
The key change for employers under the new Act is that holding an IR 330 tax code declaration form will no longer be a "reasonable excuse" for employing a non-New Zealand citizen who is not entitled to work in New Zealand. Employers will no longer be able to claim a lack of knowledge as a defence. However, the new Act states that it will be a defence to a charge under section 350 that the employer:
- did not know that the person was not entitled to do the work; and
- took reasonable precautions and exercised due diligence to ascertain whether the person was entitled to do the work.
In order to help employers meet their obligations under the Act, Immigration New Zealand has introduced a free online immigration service called 'VisaView', which allows employers to check online to verify if job applicants are entitled to work in New Zealand.
This would be a good time for employers to review their recruitment processes and make sure they have robust systems in place around checking a potential employee's entitlement to work (and keeping copies of any documents checked as evidence).
Other key changes for employers
There are a number of other important changes under the new Act that employers should be aware of. In particular, there is a new "interim visa" that can be granted to maintain a person on a temporary visa, while their application for a further visa is being considered.
This could be useful for employers, to provide lawful continuity in the workplace while Immigration New Zealand processes an employee's visa application.
Other relevant changes include:
- Organisations will be able to sponsor work visa applications (previously only individuals could). However, employers should be aware that those who sponsor the entry of a foreign national can be held liable for the debts the person incurs.
- All persons entering New Zealand after November 2010 will only receive visas - the term 'permit' will no longer be used.
Feel free to contact us if you would like further information on how the new Act could affect your business.
Authors
Charlotte Bates
Senior Associate - Employment
DDI: +64 4 924 3578
Mobile: +64 21 817 041
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Carl Blake
Senior Associate - Dispute Resolution
DDI: +64 9 977 5163
Mobile: +64 21 477 228
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Katherine Burson
Senior Associate - Employment
DDI: +64 9 977 5112
Mobile: +64 21 498 624
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In This Article:
While there is no positive obligation on an employer to check a potential employee's entitlement to work in New Zealand under the Immigration Act, if an employer does not carry out this check and the person is not entitled to work, the employer could be prosecuted under the Act.
