Employers Review Recruitment procedures - new Immigration Laws
If you are an employer and employ a foreign national in your business, you need to be aware of your obligations under the new Immigration Act 2009.
These new obligations eliminate the defence of ‘reasonable excuse’ where you have employed someone that does not hold a visa entitling him / her to work in New Zealand generally or for you specifically. In the past, employers had ‘reasonable excuse’ if they produced a completed IR330 tax declaration form signed by the employee.
Unfortunately for employers, from 29 November 2010, a claim of ignorance and the production of a signed IR330 form is no longer enough to defend a charge of employing a foreign national not entitled to work.
As from 29 November 2010, if charged with employing someone not entitled to work, the employer needs to prove they took “reasonable precautions and exercised due diligence” to ascertain whether the employee is entitled to work. This change will not apply to workers employed before 29 November 2010. For them, the transition provisions of the new Immigration Act 2009 state that the previous rules continue to apply.
The Department of Labour has published best practice guidelines to assist employers with their recruitment procedures.
In addition, the Department of Labour has introduced systems enabling employers to obtain information regarding the immigration status of employees and potential employees. In particular, on receipt of an employer request, the Department will disclose:
- Whether the employee or potential employee is entitled to work for the employer making the request; and
- If the employee or potential employee is entitled to work:
- The duration of that entitlement; and
- Any conditions imposed on entitlement.
The Department of Labour has introduced an on-line system giving registered employers access to this information. The system is called “VisaView”. I recommend that, as an employer, you:
- familiarise yourself with the Department’s best practice guidelines
- register with VisaView and gain a good understanding of the system.
- Apply VisaView and the Department’s guidelines to all your recruitment. After all, you won’t necessarily know whether a potential employee is a foreign national.
The Department’s best practice guidelines include a strong recommendation that employers use VisaView as part of the recruitment procedure.
Employers who fail to use VisaView and the Department’s guidelines as part of their recruitment procedure do so at their peril.
There are severe penalties for failing to comply. An employer who employs a foreign national who is not entitled to work for them will be liable to a maximum fine of $10,000.00 where the employer cannot show they took “reasonable precautions and exercised due diligence” to ascertain whether the employee was entitled to work.
If you know when a foreign national employee’s entitlement to work ends, you will need to ensure that employee does not continue to work after that date without first having obtained an extension to their entitlement. If you continue to employ the employee after that date, you will be doing so in the knowledge he/she is not entitled to work for you. You will be liable to a maximum fine of $50,000.00. This is the case even if the employee began working for you before 29 November 2010.
If you have any concerns in this area, please contact us to ensure you are not in breach of the legislation.
Pitt & Moore is a full service law firm.
We can help you with all employment problems and immigration matters including work visa and residency applications.
This article is a general overview of some of the issues arising out of the Immigration Act 2009. It should not be used as a substitute for legal advice tailored for your specific circumstances. The writer recommends you obtain legal advice before taking action in relation to any matter addressed in this article.
Please contact:
Mike McMellon
DDI: 03 545 6710
Email: mike.mcmellon@pittandmoore.co.nz