Employment Law Changes – An Opportunity for Employers

Written by publik.nz on . Posted in Employment Law.

Heather Collins

7 April 2026

On 21 February 2026 significant amendments to the Employment Relations Act 2000 came into force. It is important for employers to now ensure they comply with the new law.

Review Your Contractor Agreements

One of the most controversial changes is the introduction of a statutory “gateway test” to determine whether a worker will be excluded from the definition of an employee under the Act.

Now, if the following five criteria are satisfied, a worker will not be considered as an employee:

  • There is a written agreement which specifies that the worker is a contractor.
  • The worker is given a reasonable opportunity to seek independent advice before signing the agreement.
  • The worker is not prevented from working for others.
  • The worker is not restricted to working at certain times, on certain days or for a minimum period and is allowed to subcontract the work (subject to vetting for compliance with statutory requirements, or where it’s justified because the nature of the work requires particular qualifications or criminal record checks).
  • The agreement cannot be terminated if the worker declines work.

If a contracting arrangement satisfies all five statutory criteria, the worker will be classified as a “specified contractor” and not an employee.

If the criteria are not met, the previous test will apply. This means that the “real nature of the relationship” test will apply and examination of factors such as control, economic reality, integration, and the parties’ intentions will be undertaken to determine whether a worker is a contractor or an employee.

This change offers an excellent opportunity for businesses that can accommodate the gateway test criteria for its workers. Businesses should now review and update their contractor agreements to utilise the new law where possible so as to minimise any risk about whether its workers are employees.

Review Terms for Your Senior Employees

Under the new law, employees earning $200,000 or more annually cannot bring personal grievances for unjustified dismissal unless their employer has previously

agreed that unjustified dismissal protections will still apply to their employment relationship.

These employees may still bring other forms of personal grievance claims (for example discrimination or harassment) but not claims relating to dismissal. Employees may also look to other types of claims for redress such as claiming breach of contract.

This means that employers no longer need to meet good faith obligations when choosing to terminate high-income employees, and do not have to give the employee reasons for the dismissal.

It is important to note that the $200,000 per annum threshold does not only relate to salary but includes what was paid to the employee in the 364 days before the employer gave notice of the dismissal. As such, benefits from employee share schemes, commission, bonuses and other contingent payments are included and means that an employee who has a salary of less than $200,000 may still be prevented from bringing a personal grievance if they are dismissed.

This new law applies to all new employees while a 12-month transition period applies to existing employment relationships. The $200,000 threshold will increase over time, with the first increase not occurring until after 1 July 2027.

As a result of this change we expect to see negotiations regarding notice periods, termination payments and other protections becoming more common for senior employees.

Now is the time to ensure that your employment agreements for your new senior employees:

  • Clearly state personal grievance rights which are excluded.
  • Specifically exclude any termination processes included in general Employer policies, handbooks and manuals.
  • Include a robust termination provision with a simple exit process.
  • Clearly set out notice periods, the ability for payment in lieu, and zero notice for serious misconduct.

Now is also the time to plan for the introduction of this law for your existing senior employees.

Less Concern About Process

The new law allows any decisionmaker to significantly reduce the remedies for an employee if it is established that the employee’s behaviour contributed to the situation.

The key changes are:

  1. If it is found that the employee’s behaviour amounted to serious misconduct and ultimately gave rise to a grievance, the Authority or Court is prohibited from awarding any remedy to the employee. There is no discretion.
  2. If the conduct does not amount to serious misconduct but still contributed to the grievance, the Authority or Court is prevented from ordering reinstatement or compensation for humiliation, loss of dignity or injury to feelings. As such, any remedies are limited to lost wages or benefits.

As “serious misconduct” has not been defined in the new changes, there is scope to include a definition within individual employment agreements and policies to give all parties better clarity and certainty about what behaviour would amount to “serious misconduct”.

Employers are now able to act in a more decisive and commercially sensible approach when dealing with misconduct. Any disciplinary process still needs to be fair and undertaken in good faith, but there can now be less fear about technical issues when employee misconduct is clear. Employers should ensure that their managers are trained to identify risk under the new regime, and should review their disciplinary processes to reflect this simpler regime.

Review Your Trial Period Provisions

The new law further limits the personal grievance claims that can arise from a dismissal during a trial period. No longer can personal grievances for unjustified disadvantage be brought.

The technical requirements for trial periods remain strict so many disputes will likely centre on whether the trial period was properly established.

We consider this change now limits any claims arising out of a dismissal during a trial period to discrimination, breach of good faith, or other causes of action .

Employers should update their trial period provisions to make it clear when an employee is prevented from raising a personal grievance. It is also important to maintain policies and procedures which prevent new employees from commencing work until the terms of their employment have been agreed.

Review Your New Employee Terms

The rule requiring new employees to be employed on the terms of an applicable collective agreement for the first 30 days of employment has been removed. So, employers may offer individual employment agreements immediately, but must still comply with good faith obligations when communicating with new employees about collective agreements.

We consider this change is likely to result in more employees being subject to 90-day trial periods and employers will need to be more proactive about explaining agreement options to new employees.

Conclusion

Overall, the new law presents a number of benefits to employers.

The ability to hire with more flexibility, exit employees with reduced risk and include contractors in the workplace with confidence will be welcomed.

We suggest that businesses take the time now to review and update contractor agreements and individual employment agreements and review their processes to make the most of the new changes.

Pitt & Moore’s Employment Team is well placed to assist.

Employing Migrants in New Zealand: A Practical Legal Guide for Employers

Written by publik.nz on . Posted in Employment Law, Immigration & Visas - New Zealand.

Elly Fleming

30 September 2025

With the Accredited Employer Work Visa (AEWV) framework in place, many employers are now working through essential processes, such as employer accreditation and job checks, that play an increasingly important role in supporting migrant employees. 

While employing migrants brings great benefits for New Zealand employers, it also comes with serious legal responsibilities employers must be aware of and understand. Three areas where employers frequently get caught out are: 

  1. Providing immigration advice 
  1. Understanding cost responsibilities  
  1. Maintaining compliance with immigration and employment obligations 

Here’s a practical and helpful guide to the dos and dont’s New Zealand employers should be aware of when employing migrant workers, with recent examples. 

Book your free consultation

Know your boundaries when it comes to immigration advice 

Under the Immigration Advisers Licensing Act 2007, only licensed immigration advisers or exempt professionals (such as lawyers) can give immigration advice. Employers can, of course, support their migrant employees through the visa process, but must not cross the line into giving immigration advice. 

What employers can do: 

  • Provide factual information (e.g. “The job check has been approved” or “Here is the link to Immigration New Zealand’s website”). 
  • Supply documents that Immigration New Zealand requires (e.g. employment agreements, job check approval, business information). 
  • Confirm details about the role (e.g. salary, hours, duties). 
  • Encourage or refer migrant employees or prospective employees to seek independent advice from a licensed immigration adviser or immigration lawyer if they have questions or need assistance with their visa application. 
  • Ensure compliance with visa conditions – monitor migrant employees’ visa conditions, including expiry dates. 

What employers can’t do: 

  • Tell a migrant employee which visa to apply for. 
  • Suggest what supporting evidence they should provide to Immigration New Zealand. 
  • Complete or interpret visa application forms or write personal letters or statements on a migrant employee’s behalf. 
  • Advise on resolving visa complications (e.g. overstays, declines, visa eligibility). 
  • Interpret immigration law or policy. 
  • Charge for assistance. 

Doing any of the above is an offense and penalties can include fines up to NZ$100,000, imprisonment, or both.  

Remember, only licensed immigration advisers or exempt professionals (such as lawyers) can give immigration advice. While many employers are genuinely attempting to be helpful, it’s important support doesn’t cross a legal line. 

Managing cost responsibilities – who pays for what 

One of the clearest rules under the Accredited Employer Work Visa (AEWV) system is that employers must bear the costs of being an accredited employer and completing job checks. These are business costs, not migrant employee costs. 

Employers must pay for:  

  • Accreditation fees (application and renewal) as well as associated legal/immigration advice fees. 
  • Job check application fees as well as associated legal/immigration advice fees. 
  • Recruitment and advertising costs. 
  • Compulsory training and induction costs related to the job (including on-the-job training). 
  • Health and safety equipment required to undertake employment safely. 
  • Branded uniforms. 
  • Tools where the ownership of the tools is retained by the employer. 

Migrant employees or employers can pay for: 

  • Immigration New Zealand (INZ) visa application fees (including any fees related to family members). 
  • Medical checks and police certificates (if required for a visa application). 
  • Costs related to personal documentation (e.g. translations, passports, document gathering). 

An employer that asks a migrant employee to reimburse accreditation, job check, or recruitment or advertising expenses, or other related expenses that are the employer’s responsibility, or deducts these costs from wages or salary (directly or indirectly), is in breach of immigration rules and could lose employer accreditation. 

Compliance with immigration and employment obligations 

Once accredited, employers must continue to meet strict standards to keep their accreditation.  

Common pitfalls employers can face include: 

  • Failing to pay the specified hourly rate as stated in the visa conditions. 
  • Not meeting minimum employment standards (e.g. holiday pay, sick leave, and employment agreement requirements). 
  • Not keeping proper records of pay, hours and working conditions. 
  • Forgetting to report changes to INZ, such as when a migrant employee leaves employment. 
  • Unlawful deductions or practices that disadvantage migrant employees, such as unlawful bonding clauses or forced car loan agreements. 
  • Allowing migrant employees to work after their visa expires. 
  • Assigning migrant employees work outside their visa conditions (e.g. sending them to work in a location not covered by their visa conditions or asking them to work in a different role).  

For employers, non-compliance may result not only a loss of accreditation, but also infringement notices or being barred from employing migrant workers in the future. For migrant employees, serious consequences may include receiving a deportation liability notice or being unable to obtain another work visa. 

Penalties can include: 

  • A fine of NZ$1,000 for an individual, or NZ$3,000 for body corporate or other entity (companies). 
  • Loss of accredited employer or Recognised Seasonal Employer (RSE) status. 
  • Being banned (stood down) from supporting further visas for migrant workers for a period depending on the number of infringement notices the employer receives. 
  • Criminal charges. 

Recent examples of employer related offending and Immigration New Zealand’s (INZ) response: 

  • August 2025 – A Hamilton man was ordered to repay over NZ$40,000 for repeatedly assigning two migrant workers to roles not covered by their visas, underpaying them and requiring excessive hours (Source: Immigration New Zealand).  
  • August 2025 – SSB Group in Tauranga was fined NZ$12,000 for assigning migrant employees to tasks outside their visa conditions. Their accreditation was revoked (Source: Immigration New Zealand).  
  • July 2025 – A Samoan national in Auckland was sentenced to six months’ home detention for facilitating migrant exploitation, arranging accommodation and managing visa applications while knowing workers were not permitted to work. They also underpaid workers and denied basic rights (Source: Immigration New Zealand). 
  • July 2025 – A Christchurch employer was sentenced to four months’ home detention for providing false or misleading information to Immigration New Zealand and aiding a breach of visa conditions (Source: Immigration New Zealand). 
  • June 2025 –  RJ Prime Investments Limited in Hamilton was fined NZ$3,000 for allowing a migrant to work at a location not authorised by their visa. They were added to the employer stand-down list, barring them from hiring migrant workers (Source: Immigration New Zealand). 

These examples highlight the real consequences of non-compliance with immigration and employment obligations.  

How to be compliant with immigration and employment obligations – tips for employers  

  • Be transparent: Make it clear in employment agreements who covers which costs. 
  • Train your team: Ensure your team, including managers and recruitment staff, understand the limits on providing immigration advice and know which costs cannot be passed on to migrant employees.  
  • Partner with experts: Build relationships with licensed immigration advisers or immigration lawyers who can provide advice when needed. 
  • Protect your accreditation: Stay on top of immigration and employment law obligations. 
  • Stay compliant: Regularly audit employment related practices, pay structures and visa adherence. 
  • Document carefully: Keep clear records of visa conditions, wages, hours, roles and any changes in work arrangements. 
  • If in doubt, get expert advice: Engage professionals whenever you are uncertain about your obligations or need help auditing your processes to ensure compliance with immigration and employment requirements. 

Key takeaway   

Employing migrant workers offers significant business opportunities but also carries important responsibilities. Employers must limit their role to providing factual support rather than immigration advice, accept responsibility for business-related costs, and maintain full compliance with immigration and employment obligations. 

By doing the right thing, you not only stay compliant but also build trust and loyalty with your migrant workforce.  

If you need help, get in touch. Our combined immigration and employment expertise brings you a significant business advantage. 

Our team of specialist immigration and employment lawyers has extensive experience supporting New Zealand employers. We deliver clear, practical advice on employer accreditation, visa processes and workplace obligations, helping you stay compliant and avoid costly mistakes that could jeopardise your business or accreditation.  

With our integrated expertise in both immigration and employment law, we can deliver tailored guidance specific to your organisation.  

Contact us today for professional legal advice that will give you peace of mind.  

Care Workforce Work to Residence Visa

Navigating the Care Workforce Pathway to Residence

Written by publik.nz on . Posted in Employment Law, Immigration & Visas - New Zealand.

Swarna Kamakshi 

6 June 2025

The Care Workforce Work to Residence Visa is an immigration pathway designed to acknowledge and support the essential contributions of care workers in New Zealand. For migrant care workers making an enormous difference in the lives of others every day, this visa offers a clear and structured route to residency while helping to address critical workforce shortages in the sector. 

This visa pathway currently allows eligible migrant workers with occupations in aged care, disability support and related services, to apply for residency after 24 months of work in New Zealand.  

So, who can apply? 

To be eligible for the Care Workforce Work to Residence Visa, applicants must meet the following requirements: 

  • Employment duration and wage: You must have worked a minimum of 24 months in an eligible care role and received no less than the care sector agreement’s prescribed wage rate (NZD $28.25 per hour).  
  • Existing visa status: You must hold an Accredited Employer Work Visa or another type of work visa at the time the residence application is made.  
  • Employment conditions: You must be employed currently or have a job offer from an Accredited Employer in a qualifying role, with a minimum of 30 hours per week guaranteed. The employment must be permanent or for a fixed term of at least 12 months. 
  • Age requirement: You must be aged 55 or younger at the time the residence application is submitted to Immigration New Zealand.  
  • English language requirement: You must provide acceptable English language test results if you are the principal applicant or meet other English language criteria as set out for this pathway. 

What roles qualify? 

Migrants working in the following roles in New Zealand may be eligible to apply for this resident visa: 

  • Kaiawhina (Hauora) (Māori Health Assistant) 
  • Disabilities Services Officer  
  • Residential Care Officer 
  • Aged or Disabled Carer 
  • Nursing Support Worker 
  • Personal Care Assistant 
  • Therapy Aide 
  • Child or Youth Residential Care Assistant 
  • Diversional Therapist 

Can I include my partner and dependent children? 

Your partner and dependent children can be included in the residence application, but they will also be required to meet the specified health, character, and English language criteria. Your partner and any children aged 16 and over must have acceptable scores in English tests, or you may need to agree to pay for English language lessons for them to learn English. 

How Pitt & Moore can help 

At Pitt & Moore, we offer trusted immigration advice and have extensive experience supporting individuals and their families applying for residence through the Care Workforce Work to Residence Visa pathway. We recognise that migrant care workers in New Zealand play a pivotal role in our community, maintaining and improving New Zealand’s public health and social care services and we’re here to help make the residence application process as smooth and efficient as possible for those wanting to settle in New Zealand.  

We offer an initial, free 15-minute consultation to discuss your unique situation. Book your consultation with us today by clicking here.  

Redundancy basics and considerations for migrant workers

Written by debbie on . Posted in Employment Law, Immigration & Visas - New Zealand.

Hannah McCarthy and Robert Brinkworth

16 May 2025

Employers sometimes need to make hard decisions to steer their business through difficult times or to operate more efficiently.  An employer may consider restructuring its business and making cuts by redundancies. A redundancy occurs when an employee’s position is disestablished as it is no longer required.  In a redundancy situation, the focus is on the employment role, not the competency of the employee who fills it.  If any of the affected roles are filled by migrant workers, additional considerations arise that any employer should be mindful of.

Redundancy generally   

The overarching consideration in determining whether a decision to make a role redundant is justified is whether there was a genuine business for the decision.  If there are mixed motives in making a role redundant, for example in making an underperforming employee’s role redundant, then an employer runs the risk that their decision could be successfully challenged.

Before making a decision to restructure an employer is obliged to engage fairly and consult with all potentially affected employees about the potential decision.  The degree that an employee is affected by any proposed restructure may differ – i.e. restructuring may involve a small change in reporting lines for some employees or redundancy for others.

In the event of a potential sale of an employer’s business, the obligation to engage fairly with potentially affected employees can be complicated.  There is a tension to not disclose commercially sensitive information whilst the Employment Relations Act creates a statutory obligation of good faith that cannot be overridden.  Advice may be needed to help guide a business owner through this process.   

In any case, when a business starts to think that there is need to restructure it should carefully review the employment agreements of the potentially affected employees and consider its contractual obligations and the contractual implications of the restructure (such as redundancy compensation payments).  

Engagement with potentially affected employees starts off with a robust consultation process during which employees are presented with all relevant information to enable them to make informed comments regarding the proposal. Generally, this involves the employer putting together a written business plan or proposal document which shows all the factors they have considered. This includes alternatives to redundancies which have been considered but discarded and the reasons why. The complexity of the business case, and the amount of commercial information provided can vary in each case and it is prudent to take proper advice when putting a business case together.

Employees must then be provided with a reasonable opportunity to provide feedback on the proposal. Employees ought to be offered the opportunity to meet with their employer to discuss the proposal and should be advised of their right to bring a support person or legal representative.   When an employer is considering reducing the number of roles which perform the same or substantially similar purpose then it can be difficult for an employer to get the redundancy process right. Employers can be tempted to pick out the employees they want to keep rather than engaging with all the potentially affected employees and risking the disruption of a selection process. An employer should consult with all the potentially affected employees and seek to establish a selection process that is transparent, objective, and relevant to the genuine needs of the business.  Ignoring this can give rise to challenges by an affected employee and advice should be taken.

Provided there is a genuine business reason for disestablishing a position, and the employer has undertaken a genuine and open-minded consultation process, an employer is entitled to end a person’s employment by reason of redundancy.  As there is no statutory entitlement to redundancy compensation, the notice and compensation available to an employee will be dictated by his or her employment agreement.

Serious consequences can arise if a proper consultation process is not followed, even where there is a genuine reason for the redundancy.  If a process is flawed, it taints the entire termination which can lead to significant claims by the employee.  When in any doubt, it is prudent to take advice.

Migrant Workers

The laws surrounding employment and immigration move quickly and are designed to protect both employees and employers.  It is important for employers to be aware of their obligations under both employment and immigration laws as the consequences can be severe and costly to the business.

New Zealand employment law applies equally to migrants.  Additionally, employers of migrant workers must comply with their obligations under the Immigration Act 2009.

To hire migrants under the Accredited Employer Work Visa Scheme (or other work visa holders with specific conditions) employers must be Accredited. Breaches of employment obligations and minimum employment standards, such as a finding of unjustified dismissal in a flawed redundancy process, can result in an Accredited Employer being subject to a stand-down period or be ineligible to renew their Accreditation. This would stop an employer from hiring migrants in their business and prevent their current employees from applying for Skilled Migrant Resident Visas.

In cases where a holder’s visa is due to expire, a fair and proper process is still required in redundancy, restructure, and termination processes. Our colleague, Heather Collins has previously explored the tightrope act of complying with immigration and employment Law obligations. 

After employment ends

It is common for employers to be worried about the future prospects of visa holders, particularly where their immigration status is tied to their employment. A visa holder who holds an Accredited Employer Work Visa (“AEWV”) will have conditions that allow them to work for the specific employer. When this employment comes to an end, an AEWV holder may have options available to them, including:

  1. Obtaining new employment with a new Accredited Employer, in which case they must vary the conditions of their visa, or obtain a new AEWV; or
  2. Obtain an alternative suitable visa; or
  3. Leave New Zealand, so as not to be in breach of their conditions

Employers are not allowed to ‘provide immigration advice’ to migrant workers – for example, by advising migrants which would be the best visa for them to apply for, or what documents they may need for the application. Best practice is for the migrant to seek their own immigration advice from a legal advisor.  

In addition to following a fair and proper process, an Accredited employer must notify Immigration New Zealand that a visa holder’s employment has come to an end.

Talk to us

It is always best to seek tailored advice in the event that a migrant worker’s visa is about to expire or has already expired. Our team of expert immigration and employment lawyers are here to help and provide advice for your specific situation.  You can contact us on 03 548 8349 or by email to employment@pittandmoore.co.nz or immigration@pittandmoore.co.nz.

grayscale photo of black and white wooden sign

Employer ordered to pay $30,000 for breaching employee’s privacy

Written by debbie on . Posted in Employment Law.

Heather Collins

12 May 2025

The recent Human Rights Review Tribunal decision of Cummings v KAM Transport Limited [2025] highlights the importance of employers understanding their obligations under the Privacy Act 2020, and having policies and procedures in place to ensure compliance.

In this case the employer, KAM Transport Limited, was found to have breached its privacy obligations to its employee Mr Cummings, because it failed to adhere to Information Privacy Principle 11 ( “IPP 11” ) of the Privacy Act 2020.  This principle states that an organisation may only disclose personal information for the purpose that it was obtained.

The Human Rights Review Tribunal ordered KAM Transport to pay Mr Cummings $30,000 in damages for humiliation, loss of dignity and injury to feelings. This is a significant sum, even for a larger employer, so what went so terribly wrong for KAM Transport,  and how could this breach have been avoided?

Background

Mr Cummings was employed by Kam Transport as a Senior Truck Driver and under his terms of employment KAM Transport could require him to submit to a random drug test. Upon being selected for a random drug test Mr Cummings refused to take it.  Unsurprisingly, KAM Transport suspended Mr Cummings from work pending the commencement of a disciplinary process.

Mr Cummings undertook a drug test one week later which returned clear. He returned to work to discover that his colleagues  (who were not part of KAM Transport’s management team) were aware of his refusal to take a drug test.  In addition, rumours that Mr Cummings was a drug dealer and had been dismissed from his employment were circulating amongst staff. Mr Cummings was anxious and distressed by the implications of the rumour on his safety and his reputation.  In particular he feared that he could be targeted by gangs when completing his long haul jobs as part of his employment.

Mr Cummings complaint about privacy breach

Mr Cummings raised the privacy breach with his employer.  He provided the names of employees who had spoken to him about the rumours and asked KAM Transport to investigate.  KAM Transport did complete an investigation but found that no privacy breach had occurred.

Mr Cummings believed that his employer’s response was inadequate, and he subsequently resigned from his employment citing a loss of trust. He reported experiencing depression, anxiety and insomnia following his resignation

The Tribunals decision

The Tribunal found that :

  1. Mr Cummings’ refusal to take a drug test was disclosed by KAM Transport to another employee who was not part of the management team. KAM Transport had no good reason for making this disclosure.
  2. The disclosure was not permitted under IPP 11
  3. The disclosure involved highly sensitive personal information, leading to significant harm. The Tribunal noted in this case that the breach doesn’t have to be the main cause of the harm, but needs to have had a “real influence on the harm suffered.”

Lessons for Employers from the Cummings v KAM Transport Limited decision

Employers need to clearly ringfence the correct people who are authorised to deal with personal information, and privacy complaints within their organisation.   They also need to be vigilant that their managers understand what personal information is under the Privacy Act, and what privacy obligations are owed to employees as a result.  Training and robust privacy policies are essential to ensure that disclosures of employees’ personal information are not made to other employees or third parties. Employers also need to be prepared to respond appropriately to complaints by employees of a privacy breach. 

It’s important to be mindful that the Human Rights Review Tribunal generally make awards at quantums in excess of those seen in the Employment Relations Authority. Privacy issues can therefore expose employers significantly, if the Tribunal finds that there has been a breach and that it has caused harm.  

At Pitt & Moore Lawyers we regularly advise on issues concerning privacy in the workplace and can assist if you have any concerns about existing policies, or potential or actual privacy breaches. If you have any questions, please contact Heather Collins (heather.collins@pittandmoore.co.nz) or Marty Logan (marty.logan@pittandmoore.co.nz).

AEWV Reforms 2025: Key Changes for NZ Employers & Migrants 

Written by publik.nz on . Posted in Employment Law, Immigration & Visas - New Zealand.

Lavinia Askin

24 January 2025

Yet another overhaul of the Accredited Employer Work Visa (AEWV) scheme was announced in late 2024, with a progression of new changes set to roll out from 27 January.  

The new changes will include the upcoming removal of the median wage threshold, a reduction in experience requirements, the introduction of new seasonal visa pathways and a redesign of the Job Check process.  

In a bid to lessen the administrative pressures on AEWV applicants and Immigration New Zealand (INZ), and address crucial labour shortages in key industries, the New Zealand government will implement these changes in five different stages over the course of the year.  

Key changes timeline

27 January
Eliminating the requirements for completion of Employment New Zealand online modules 
Accredited employers will no longer need to complete Employment New Zealand’s online modules or offer migrant workers paid time to do these. INZ will instead provide links to freely available Employment New Zealand or INZ webpages that set out employment rights and obligations at the most appropriate points in the immigration process. 
Reducing the domestic workforce threshold for certain construction roles 
The domestic workforce threshold for employers of certain construction roles will drop from 35% to 15%, making it easier for employers in the construction sector to hire migrant workers in these roles. 
March (exact date yet to be confirmed) 
Abolition of the median wage requirement 
Wage thresholds for all AEWV and Specific Purpose Work Visa (SPWV) roles will be abolished, although employers will still need to advertise and offer AEWV and SPWV employees the current market rate for their position. Employment agreements already signed by both parties are not impacted by this change.
Simplified labour market test – adjustment to engagement with Work and Income for lower skilled roles
The current requirement for employers to engage with the Work and Income will be adjusted to be declaration based. Going forward employers will be required to declare that they have, in good faith, advertised ANZSCO skill level 4 or 5 jobs with Work and Income and interviewed candidates who could have been suitable for the job. The mandatory 21-day timeframe to engage with Work and Income will be abolished, saving employers time.
New earning threshold for migrant workers with dependents 
AEWV visa holders will need to earn at least NZ$55,844 annually to be able to support their children’s student visa or visitor visa applications. While this threshold has not been updated since 2019, the increase is likely to pose barriers for migrant employees in lower paying sectors.   
Reducing the work experience requirement for migrant workers 
The work experience requirement for migrant workers will be reduced from three years to two.  Currently, it’s not entirely clear whether this reduction will apply only to lower skilled roles (ANSCO level 4 and 5) or across the board. We are waiting for INZ to release the policy details.  
Increasing the visa duration for ANZSCO level 4 or 5 AEWV holders to three years 
AEWV holders in ANZSCO levels 4 or 5 roles will gain visas valid for three years, up from two years (with the option of one additional year). This increased duration aligns with the total allowable stay in New Zealand for these visa holders. Those currently on a two-year visa will be able to apply for a further AEWV for one year if they meet the requirements. This change will offer more stability and certainty for employers and migrant workers.
April (exact date yet to be confirmed) 
Greater work rights for those on interim visas 
Interim work rights will be extended to AEWV applicants who are applying from any work visa type or from a student visa that allows them to work during term time, supporting migrants to maintain employment while their visa is processed. 
July (exact date yet to be confirmed) 
New Job Check process  
INZ’s re-design of the Job Check step of the AEWV process will be implemented from July. The changes will help streamline the Job Check for low-risk employers with the aim of improving processing timeframes.  
November (exact date yet to be confirmed) 
New pathways for experienced seasonal workers 
In November, two new pathways for seasonal workers will be launched: a three-year multi-entry visa for experienced workers and a seven-month single-entry visa for lower-skilled workers. The current temporary seasonal pathways will continue to be available until that time.

Overall, these changes are a significant step forward, removing some hoops for accredited employers to jump through and making it easier to fill vacancies in a range of industries.  

On the other hand, the biggest stumbling block of not being able to submit Job Check and AEWV applications at the same time remains.  We are finding that many migrant employees need to apply for alternative visas (such as Visitor Visas) or leave New Zealand while waiting for Job Check applications to be approved, causing burden and anxiety for employers and migrants alike. 

We highly recommend that migrant workers and their employers plan ahead to avoid work visas expiring before Job Check applications can be processed by INZ.  

Talk to us

Although the revised criteria has been designed by the New Zealand government to create new opportunities for migrant workers and ultimately speed up some parts of the application process, AEWV applicants and their employers are still advised to carefully assess their specific situation against the updated requirements and seek professional immigration advice prior to submitting their applications to give themselves the best possible chance of a positive outcome.  

Our team can help you navigate these changes. We offer an initial, free 15-minute consultation to discuss your unique situation.  Book your consultation with us today by clicking here.  

Revised Partners Work Rights: What You Need to Know 

Written by publik.nz on . Posted in Employment Law, Immigration & Visas - New Zealand.

Elly Fleming

1 November 2024

Starting 2 December 2024, the New Zealand government will expand open work rights to more partners of work visa holders, allowing them to work for any employer if they meet certain wage and sector conditions. Although great news for some, it is important to note that only certain partners will be eligible… 

Firstly, what do open work rights allow? 

Being granted open work rights means gaining the freedom to work for any employer, in any lawful occupation, and at any pay rate, so long as it meets the current New Zealand minimum wage of $23.15 per hour.  

Additionally, open work rights give a person the option to be self-employed or start a business of their own. These rights don’t limit a person to one job only, open work rights allow someone to hold multiple jobs. There is also no obligation to work at all.  

So, who qualifies from 2 December? 

Open work rights will become available to: 

  • all partners of Accredited Employer Work Visa (AEWV) working in an Australian and New Zealand Standard Classification of Occupations (ANZSCO) Level 1-3 role and earning at least NZD$25.29 an hour  
  • partners of AEWV holders earning at least $25.29 an hour if they were already supporting a partner for a work visa on 26 June 2024 
  • all partners of Essential Skills work visa holders earning at least $25.29 an hour 

For those with partners working in an ANZSCO Level 4-5 role, open work rights will only be granted if their partner: 

  • earns at least $47.41 an hour  
  • earns at least $31.61 an hour in a role on the Green List and meets the Green List requirements for that role 
  • earns at least $25.29 an hour and meets the requirements of a role in the Transport or Care Sector Agreements (or the wage specified in the sector agreement, whichever is higher). 

Current holders of partner work visas with specific work conditions, will be able to apply to vary their visa conditions to open work rights, when their partner meets the expanded eligibility criteria. 

The shortcomings 

While this change in immigration policy settings addresses many concerns over labour shortages and family separation, we feel all partners of AEWV holders who are in New Zealand, irrespective of their partner’s occupation, should be able to work for any employer.   

This is especially relevant for AEWV holders with roles in ANZSCO Level 4-5 occupations as people with lower-skilled occupations are far more likely to need their partner to be able to work to meet the rising cost of living in this country.  This would restore Kiwi employers’ access to a larger pool of workers and streamline hiring processes.   

Contact us

We understand that immigration policy changes can be difficult to get your head around. Our team of expert immigration and employment lawyers are here to help demystify these changes for you and provide advice for your specific situation, contact us today on 03 548 8349. 

Lights, camera, action: Securing Entertainers Work Visas for film and television crews 

Written by publik.nz on . Posted in Employment Law, Immigration & Visas - New Zealand.

Hannah McCarthy

12 September, 2024

In the world of film and entertainment, New Zealand has long been known for its stunning scenery and world-class special effects facilities, making it an ideal place to produce high-budget international film and television.  

What most people do not realise is the amount of paperwork required behind the scenes to ensure talent and crew from around the world can legally work on productions in New Zealand.  

Entertainers Work Visa 

Anyone working in New Zealand for any period must be a New Zealand or Australian citizen, an Australian permanent resident, hold a New Zealand residency permit, or a valid work visa. Immigration New Zealand is required to enforce this, even when it comes to big-budget, high-profile productions.   
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This means visiting producers, directors, musicians, cast and crew must apply for a suitable work visa before they come and work on our shores. The most common visa for this is called an Entertainers Work Visa. 

With this visa, you can come to New Zealand to work in the entertainment, music, film or television industries for a limited time but can only work for the specific employer on the specific production you’ve referenced on your application.   

Immigration NZ requires, among other things, that an entertainment industry employer shows that the talent or crew they want to bring in are ‘manifestly essential’ to the production, or that they do not put at risk engagement of New Zealand professionals and have previously looked at engaging New Zealand professionals to fill the role. All of this must be backed up with clear evidence. 

As an example, if a production company needed a specific overseas worker because finance or distribution depended on their involvement, the visa application would need to include written confirmation from a sales agent, distributor or key investor to prove that this was the case. 

Whether you’re an actor, performer, musician, production company or crew member, dealing with complex visa requirements like this can be daunting to navigate. At Pitt & Moore, we specialise in securing Entertainers Work Visas, ensuring that the focus can remain on your craft rather than on the complicated visa process associated with working overseas. 

What we offer

Our immigration team brings a wealth of expertise in handling the unique visa requirements associated with the entertainment, music, film, and television industries. We understand that each sector has its own set of requirements and nuances, and we are committed to providing a tailored approach to meet these specific needs.  

One such nuance is obtaining any necessary agreements from relevant New Zealand performers unions or professional associations.   

Our services are designed to provide personalised attention and a streamlined process. We make sure that all the necessary documentation and procedural steps are meticulously managed, so you can pursue your international opportunities with confidence. We pride ourselves on our proven success in helping clients secure Entertainers Work Visas, allowing them to perform and collaborate internationally without hassle.  

Avoiding common pitfalls

Securing an Entertainers Work Visa can be riddled with potential obstacles if not managed properly. Common issues include incomplete or incorrect documentation, missed deadlines, and misunderstandings of specific visa requirements. These pitfalls can lead to significant delays or even visa refusals. Furthermore, New Zealand’s immigration policies are currently in a state of upheaval and changes to immigration rules can affect your application if not promptly addressed. 

At Pitt & Moore, we excel in identifying and navigating these challenges. We ensure that your application is thorough, timely, and compliant with the latest immigration regulations. Our proactive approach helps mitigate risks and prevents issues that could disrupt your plans and filming schedule.  

Ready to get started?

If you’re ready to take the next step  contact us today to schedule a 15-minute free consultation.  

Immigration rule changes for seasonal workers

Written by publik.nz on . Posted in Employment Law, Immigration & Visas - New Zealand.

Elly Fleming

28 August 2024

There have been a couple of announcements this month affecting Kiwi employers who might need seasonal workers.

As outlined below, there have been improvements made to the Recognised Seasonal Employer (RSE) scheme following government review. And, for those industries with seasonal peaks, there is a new subcategory of the Specific Purpose Work Visa for when the work is directly impacted by changes in weather.

Changes to the RSE Scheme

RSE cap increase of 1,250 workers

For the upcoming 2024-2025 season, the cap on the number of RSE workers is increasing to 20,750. This is an increase of 1,250 from last season’s cap, which was 19,500.

This increase is touted to help meet industry’s expansion plans and growth projections, particularly in wine and kiwifruit exports, while also being mindful of accommodation availability for workers.

Other improvements

Most of the following changes take effect from next week, on the 2 September.

  • Employers must pay RSE workers an average of 30 hours a week over 4 weeks.
  • RSE workers will now be granted a visa that will allow them to leave and return to New Zealand during a season.
  • RSE workers will no longer have to be screened for HIV.
  • The pause on accommodation cost increases will be lifted and employers will be able to increase rents modestly.
  • RSE workers will be able to undertake training and skills development not directly related to their role.
  • There will be more flexibility for RSE workers to move between employers and regions.
  • Timor-Leste will be included in the scheme.
  • The requirement to pay RSE workers at least 10 percent above the minimum wage will only apply to experienced workers returning for their third and subsequent seasons.

Specific Purpose Work Visa

This is an interim, time-limited, streamlined pathway and is more in line with the length of seasonal work.

To be eligible, the seasonal work must be directly impacted by changes in weather, such as harvesting, ski instructing, or tree planting.

The role must also start on or before 31 May 2025, and be for no longer than 9 months.

Horticulture, viticulture, and fishing crew work covered by other visas is excluded.

Applications from migrants must be received on or before 31 March 2025.

As an employer you will need to:

  • hold employer accreditation
  • pay at least NZD$29.66 per hour for a minimum of 30 hours per week.
  • advertise the role beforehand and provide evidence of this to the migrant to include in their application.

Talk to us

Our team of expert immigration and employment lawyers have a great deal of experience helping employers and migrant workers navigate all aspects of the complex immigration process. We are here to help, contact us today on 03 5488349.

What does the upcoming visa fee increase mean for migrants and Kiwi employers?

Written by publik.nz on . Posted in Employment Law, Immigration & Visas - New Zealand.

Elly Fleming

14 August 2024

New Zealand visa applicants and employers have found themselves in a race against the clock as a substantial Immigration New Zealand fee increase looms.  

Come October 1, New Zealand will see a jump in visa fees for applications across nearly all visa categories, including employer accreditation. It is yet another hurdle in what has already been a turbulent year for changes to immigration policy, and one that is likely to have a knock-on effect on visa processing times for the remainder of 2024.  

For those who have set their sights on coming to or remaining in New Zealand, this major increase in fees will come as a significant shock. 

Visa charge increases 

In many cases, application fees are nearly doubling. Immigration New Zealand has released a full table of changes to fee and levy rates, which illustrates that as of 1 October: 

  • The application fee for a Skilled Residence Visa (this includes Skilled Migrant Category, Green List: Straight to Residence, Green List: Work to Residence, and Care Workforce: Work to Residence categories) will be raised by 50% to $6,450, up from $4,290. 
  • The application fee for a Partnership Residence visa will almost double to $5,360 from its current $2,750 setting. 
  • The application fee for a Dependent Child Resident visa will increase from $2,750 to $3,230. 
  • The fee for processing a Student visa will double from $375 to $750. 
  • For Accredited Employer Work Visas, the overall cost will increase from $750 to $1,540. 
  • Employer Accreditation applications see a gradual increase with the biggest hike for labour hire accreditation category, from $3,870 to $4,060.  

Despite the fee increases, New Zealand will continue to subsidise visa fees for applicants from Pacific countries and there will be no fee increases for Recognised Seasonal Employer status, Pacific Access Category and Samoan Quota Resident visas, or for New Zealand Electronic Travel Authority (NZeTA).    

The best approach 

We highly recommend that migrants and employers plan ahead and only submit applications that meet all applicable criteria. This fee hike is likely to cause a mass rush to get applications in ahead of 1 October. As a result, processing delays look very likely as Immigration New Zealand copes with an influx of applications.  

At Pitt & Moore, we are also anticipating that Immigration New Zealand’s online application systems will experience issues in the period leading up to this date due to a higher volume of transactions. To avoid additional costs and technical issues, our advice is to get eligible applications in as soon as possible, and well ahead of that October deadline.  

Value of expert advice  

When application fees increase significantly, the stakes for migrants and Kiwi employers are higher, making expert legal advice even more crucial.  

Visa applications often involve intricate legal requirements and documentation. An expert can help navigate these complexities, ensuring that all forms are filled out correctly and that all required documents are submitted. From our experience, missteps in this process can lead to delays or denials, which can be costly and time-consuming. 

 Expert legal guidance will help make this process more streamlined and will give you a much better chance at securing your visa. 

Talk to us

Don’t hesitate to reach out to the immigration team here at Pitt & Moore for professional advice on how best to approach your visa application.  

a wallet with a bunch of money sticking out of it

Employment Law Update for Employers

Written by Veneeta on . Posted in Employment Law.

by Hannah-Jean McCarthy

19 March 2024

The new coalition Government have implemented numerous legislative changes affecting employers. This is a good time for employers to pause, consider updating employment agreements, check payrates and (if your employees are on a visa) review your compliance with Accreditation obligations.

Minimum Wage Increase

As of 1 April 2024, the minimum wage will increase to $23.15. The starting out and training wage will increase to $18.52.

If an employee already earns $23.15 per hour, there is no legal requirement for employers to provide a pay rise.

90-Day Trial Period

The Employment Relations (Trial Periods) Amendment Act 2023 extends the right to businesses with 20 or more employees to include a 90-day trial period clause in employment agreements for new employees.

All 90-day trial clauses must be drafted and implemented correctly to be effectively relied upon.  A valid trial period clause must:

  • be included in the written employment agreement;
  • specify that the employee is bound to the 90-day trial clause;
  • set out the commencement and duration of the trial period;
  • specify the notice period for termination under the 90-day trial (for example one week notice period);
  • specify that the employee is unable to raise a personal grievance or proceedings relating to the dismissal;
  • be applicable to new employees only (i.e. not someone who has worked for the employer in the past); and
  • be entered into willingly by the employee before they commence employment. For example, an employee should not sign the agreement and start work on the same day.

A valid 90-day trial clause allows an employer to give notice of dismissal to an employee during the trial period, without the employee being able to raise a personal grievance for unjustified dismissal or raising claims related to the dismissal process. However, it does not prevent an employee from raising a grievance for unjustified disadvantage, discrimination or harassment.

If an employer decides to dismiss a trial employee, it is crucial that the notice is given during the 90-day period, and that the correct notice period is provided. In some cases, this may mean that employment does not formally end until after the 90-day period, but this does not invalidate the 90-day trial protection for the employer.

Despite the above, employers employing migrants on an Accredited Employer Work Visa cannot include a 90-day trial clause in the employment agreement. This is because a job check application will be declined if an employment agreement includes the clause.

Worker Protection (Migrant and other Employees) Act 2023

The new Worker Protection (Migrant and Other Employees) Act 2023 modifies the Employment Relations Act, the Immigration Act and the Companies Act.

An in-depth analysis of the legislation can be found here.  

However, key takeaways employers should be aware of include:

  1. Immigration Officers and Labour Inspectors can now:
  • request documents to verify that employers of migrant workers are complying with obligations; and
  • issue an infringement notice when employers fail to provide requested information. 
  1. There are three new infringement notices aimed at employers under the Immigration Act:
  • allowing unauthorized individuals to work, 
  • employing someone in violation of visa-related conditions, and 
  • failing to comply with document provision requirements within the stipulated timeframe.   
  1. The Chief Executive of MBIE can now publish the names of employers convicted of immigration offences or issued with infringement notices. 
  2. A conviction for migrant exploitation or people trafficking has been added to the grounds on which the Court can disqualify an individual from being a company director or taking part in company management.

Pitt & Moore’s expert employment team can assist you with reviewing and drafting employment documents to ensure they comply with the new changes.

If you would like more in-depth advice or further information about the content of this article, please get in touch with the team at Pitt & Moore on 03 5488349.

Tightrope Act of Complying with Immigration and Employment Law Obligations for Employers of Migrant Workers

Written by Veneeta on . Posted in Employment Law, Immigration & Visas - New Zealand.

by Heather Collins

1 February 2024

There has been a significant focus on migrant workers in New Zealand over the past year. As we have previously highlighted, a number of changes have come into force to better protect migrant workers, and prevent and deter exploitation by employers.

These legislative changes expose businesses employing migrant workers to more severe penalties for exploitation and may also result in more scrutiny of businesses that hire migrants.

For this reason, now more than ever is an ideal time for business owners to pause and re-examine their practices, to ensure that they are meeting both their employment and immigration obligations.

In our experience, one of the biggest stumbling blocks for employers is the process to follow when a migrant worker no longer holds a visa. In this article, we outline some general best-practice recommendations for employers to consider when it comes to improving practices and reducing the risk of non-compliance.

What are an employer’s obligations when a migrant worker’s visa expires?

Once a migrant worker’s visa expires, unless they have been granted an interim visa with conditions that allow them to work for their employer, they cannot perform any duties for their employer, and they are generally not permitted to remain in New Zealand.

Employers of migrant workers must not only adhere to their obligations under the Immigration Act 2009 but also to the requirements of the Employment Relations Act 2000 and other employment related legislation relevant to employment relationships.  If a migrant worker’s visa expires, employers have an obligation to ensure that the worker isn’t completing any duties, as the employer could then be sanctioned for allowing someone to work without a valid visa. There are steep penalties for hiring or allowing someone to work who is not entitled to.

Often in this scenario, the employer’s focus shifts to removing the unlawful employee from the business as quickly as possible.  However, where an employment agreement is in force, the migrant worker is still an employee. This means that while the migrant worker is not allowed to perform duties, they are still afforded all the same rights and protections as any other employee, irrespective of their visa status. 

The employer remains obligated to follow a ‘fair and reasonable’ process and act in good faith. In practice, this means that an employer cannot simply terminate the migrant worker’s employment without due process simply because the migrant worker no longer holds a visa.  Doing so will likely result in the migrant having grounds to raise a personal grievance.

What is the best practice for an employer in this situation?

Unfortunately, there is no clear, established law on a particular process to be followed. But, in general, Pitt & Moore advises against automatically terminating a migrant worker’s employment or standing a migrant worker down without pay without their agreement when they would be otherwise willing and able to work, as this could be deemed an illegal suspension.

If there is nothing specified in an existing employment agreement about how to address this issue, the best practice is to reach an agreement with the migrant worker. This could be an agreement for the migrant worker to take the remainder of their annual leave, or if there is no leave available, to take unpaid leave until they are granted a valid work visa. If the migrant worker is unwilling to take unpaid leave, the employer could consider extending special paid leave for a finite period, to ensure the migrant worker is not disadvantaged.

Set up clear expectations in an employment agreement

For employers looking to review and update their existing employment agreements, it can be helpful to have clauses that:

  • Allow for unpaid or paid leave where a worker’s visa expires;
  • Clarify the worker’s obligation not to cause unnecessary delays when applying for a new work visa; and
  • Make it clear that employment cannot be held open and identify a point at which an employer can validly end the employment.

These clauses should be tailored specifically to you as the employer and your worker. Specific legal advice should be sought when refreshing these documents.

Who is obligated to ensure migrant workers’ visas remain current?

A visa holder (migrant worker) is required to hold a valid visa at all times in New Zealand. They may only work under the conditions specified in their visa. Immigration New Zealand (INZ) recommends visa holders apply for another visa at least one month before their current visa’s expiry date.

Employers are not allowed to ‘provide immigration advice’ to migrant workers – for example, by advising migrants which would be the best visa for them to apply for, or what documents they may need for the application. But employers do have an obligation to try and ensure a worker’s visa is processed prior to its expiry and to support an expedient process by providing any documents or paperwork promptly. In the 2021 decision of Restaurant Brands Ltd (RBL) and Dilshaad Gill, RBL was ordered to pay Mr Gill $25,000 on top of lost wages of $19,950 for unjustifiably dismissing him on the expiry of his work visa, and their failure to advise Mr Gill that they didn’t intend on supporting his visa application.  

Taking Restaurant Brands as an example and precedent, there is a risk of non-compliance if an employer fails to follow the proper process, creates a delay for a migrant worker’s visa application, or disadvantaged them financially.  In these situations, it becomes important the employer ensures their migrant worker’s employment is preserved where possible and employment processes meet the required standard

Get professional advice

The laws surrounding employment and immigration move quickly and are designed to protect both employees and employers. We suggest that tailored advice is sought for your business in the event that a migrant worker’s visa is about to expire or has already expired.

Pitt & Moore provides expert advice on immigration, employment, and visa rules and processes so please contact us for some expert guidance.

How Pitt & Moore can help

What sets us apart is that we are experts not only in employment law but also in each step of the immigration process. This means that we can advise on all immigration/visa-related issues as well as employment related issues.

We offer an initial, free 15-minute consultation for immigration matters.

white brick wall with black and white graffiti

The end of the 90-day trial for AEWV is coming

Written by Veneeta on . Posted in Employment Law.

By Lavinia Askin

17 October 2023

Immigration New Zealand (INZ) is now placing Accredited Employers under extra scrutiny, as explained in an earlier article.

Radio NZ reports that as of 4 October 2023, 22 employers have had their accreditation suspended and a further 61 have had it revoked. Over 50 employers’ accreditations were still being assessed for potential immigration or employment breaches at that time.

There have also been negative implications for offshore Accredited Employer Work Visa (AEWV) holders. More than 500 individuals have had border alerts placed on them as a result of investigations. They cannot leave their home country for a job in New Zealand they feel they have already ‘paid for’ through the process of obtaining a visa and have no certainty about their future employment in New Zealand.  

This compounding situation has triggered the need for further measures to increase protection and support for migrant workers. Most recently, the government has announced it will prohibit use of 90-day trial periods for migrant workers on AEWVs.

This change will come into effect on 29 October 2023.

What will the end of the 90-day trial mean for Accredited Employers?

The intentions of the rule change are good – to encourage employers to only recruit migrants when they have a genuine labour need or skills gap, and to improve the fair treatment of migrant workers.

Not being able to use 90-day trial periods is likely to discourage small to medium size businesses from hiring migrants on AEWVs, as there may be additional risk perceived with the recruitment of migrant workers. However, it is important to note that problematic employees may be dismissed from their roles via other processes which are compliant with employment law. In this regard, employers are encouraged to seek expert advice.

The removal of the 90-day trial period creates yet another disparity between how AEWV holders are treated and how New Zealand citizens or residents and other types of temporary visa holders are treated.

There is no getting around the rule change:

  • A Job Check application will be declined, if the employment agreement includes a 90-day trial period clause.
  • Adding in a 90-day trial following approval of the Job Check may lead to an employer losing their accreditation.

The policy change does not apply to currently approved Job Checks, or to migrants who already hold, or who have applied for an AEWV.

We are also expecting updates from INZ before the end of the year clarifying that:

  • INZ can suspend accreditation when there are indications that an employer may be in breach of specific immigration and employment standards. There does not need to be a formal investigation.
  • The requirement for accredited employers to not pass on recruitment and employment costs to migrant workers covers both visa applicants and visa holders.

Pitt & Moore provide expert advice on immigration, employment and visa rules and processes so please contact us for some expert guidance.

Change is on the way for ‘triangular employers’

Triangular employment arrangements (such as labour-for-hire) with employers who employ migrants to work at other businesses’ premises have also been identified as requiring tighter controls.

All triangular employers will need to provide evidence of financial viability upfront when applying for or renewing accreditation.

Later this year, triangular employers of construction workers will be required to increase their proportion of New Zealand workers from 15% to 35%. This new requirement for the New Zealand workforce threshold must be met at both the Job Check and accreditation stages.

A date for when these changes will come into effect has not yet been announced, but we are expecting an update soon.

Are your governance and compliance risk standards up to scratch?

INZ has announced a raft of changes to both make the AEWV more appealing to skilled migrants (which we previously summarised in an article here) and to better protect them from potentially unscrupulous employers.

With the additional scrutiny INZ is placing on employers, directors and senior managers, now is the time to consider implementing better standards of governance and compliance risk oversight at the workplace, as well as systems for management of operational risks related to immigration and employment.

Pitt & Moore has expertise in both immigration and employment law and is well placed to assist your business. 

Have questions or concerns? Pitt & Moore is here to assist

If you have any questions or would like assistance with your company’s accreditation or Job Check applications, please get in touch with Pitt & Moore’s specialist employment and immigration team: 03 548 8349.

Domestic Violence Leave – Key Points for Employers

Written by Pitt & Moore Admin on . Posted in Employment Law.

By Heather Collins

6 June 2023

On 1 April 2019 the Domestic Violence – Victims’ Protection Act came into force adding legal protections into the Employment Relations Act for employees affected by domestic violence.

The Act allows employees affected by domestic violence to request paid Domestic Violence Leave and short-term flexible working arrangements. In addition Employees can now raise a personal grievance on the grounds that they have been adversely treated by their Employer because of their Employer’s belief that they are affected by domestic violence. Adverse treatment in the workplace of people affected by domestic violence is also a new form of discrimination under the Human Rights Act 1993.

So what does this mean for Employers? The key things to note about this recent law change are set out below.

What is Domestic Violence?

Domestic Violence means violence against a person by any other person with whom that person is, or has been, in a domestic relationship. It includes:

  1. physical abuse;
  2. sexual abuse;
  3. psychological abuse, including, but not limited to:

    • intimidation;

    • harassment;

    • damage to property;

    • threats of physical abuse, sexual abuse, or psychological abuse;

    • financial or economic abuse (for example, denying or limiting access to financial resources, or preventing or restricting employment opportunities or access to education):

A single act may amount to abuse and a number of acts that form part of a pattern of behaviour may amount to abuse, even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial.

What is a domestic relationship?

A person is in a domestic relationship with another person if the person—

  1. is a spouse or partner of the other person; or
  2. is a family member of the other person; or
  3. ordinarily shares a household with the other person (excluding people who share a dwelling and are in a landlord-tenant relationship, employer-employee relationship or employee-employee relationship); or
  4. has a close personal relationship with the other person (excluding employer-employee and employee-employee relationships).

Who is a person affected by Domestic Violence?

A person affected by domestic violence means a person who is 1 or both of the following:

  1. a person against whom any other person inflicts, or has inflicted, domestic violence;
  2. a person with whom there ordinarily or periodically resides a child against whom any other person inflicts, or has inflicted, domestic violence.

Who is eligible for Domestic Violence Leave and short term flexible working arrangements?

Employees become eligible for Domestic Violence Leave if they have worked for their Employer for at least six months and for at least an average of 10 hours a week (and must have worked either at least 1 hour each week or at least 40 hours each month over the six month period).

If an Employee isn’t eligible for Domestic Violence Leave it would be prudent for the Employer to consider what other support could be provided to ensure that the Employee is safe in the workplace (discussed in more detail below).

What entitlements does an eligible Employee have?

Eligible Employees are entitled to at least 10 days paid Domestic Violence leave each year and can ask for up to 2 months of flexible working arrangements.

Does a Domestic Violence Leave clause need to be added to Employment Agreements?

It isn’t mandatory for a Domestic Violence Leave provision to be included in an employment agreement. However it can be a helpful way of letting Employees know about their entitlement, and to have consistency within the employment agreement if other leave entitlements such as sick leave and bereavement leave are already set out.

What potential privacy issues need to be considered?

It will be important for Employers to keep in mind the sensitivity of domestic violence and the need for privacy when dealing with a request for Domestic Violence Leave. In particular Employers should consider carefully how they approach a request, what information is provided to other staff, and how leave and flexible working arrangements are managed. A Domestic Violence Leave policy may be helpful here.

What health and safety issues need to be considered?

Health and safety obligations should be considered when a request for Domestic Violence Leave is made, given that the staff member’s safety in the workplace may be impacted if they are suffering from trauma or other effects of domestic violence. Employers should turn their mind to what support can be provided to the affected Employee to ensure that they are kept safe at work. In addition to Domestic Violence Leave and flexible working arrangements such support could include, for example, sick leave, unpaid leave, and employee assistance services.

What proof can be requested from the employee?

In many cases an Employer will be comfortable that domestic violence has occurred based on the Employee telling them so. However the Act does allow the Employer to ask for proof of the domestic violence when a request for Domestic Violence Leave is made. The Employer will need to take care when deciding whether requesting proof is reasonable in the circumstances.

Where a request for proof is made by the Employer both the Employer and the Employee need to act in good faith. There is no guidance on what proof can be asked for. However proof could include things like a letter from a support worker, reports from medical professionals or Police, and orders made by the Court. Once again the Employer will need to ensure any proof received is treated as confidential and that the Employee’s privacy is not breached in any way.

How should a request for Domestic Violence Leave be responded to?

An Employer must respond to the request for Domestic Violence Leave as soon as possible but not later than 10 working days after receiving it, and must notify the Employee in writing of whether his or her request has been approved or refused

In or before giving the notification the Employer must provide the Employee with information about appropriate specialist domestic violence support services.

If the Employer refuses an Employee’s request, the notification given must:

  • state that the request is refused because proof required to be produced was not produced within 10 working days after the Employer receives the request and/or that the request cannot be accommodated reasonably on 1 or more of the non-accommodation grounds specified in section 69ABF(2) of the Act;

  • state the ground or grounds for the refusal; and

  • explain the reasons for that ground or those grounds.

What can employers do to prepare for a Domestic Violence Leave request?

Now is a good time for Employers to consider whether they have the right procedures in place to ensure that Employees affected by domestic violence are not treated adversely in the workplace.

It is worthwhile reviewing current employment agreements and policies with the new entitlement for Domestic Violence Leave in mind. As noted above a domestic violence policy which explains how requests for Domestic Violence Leave are handled and how the Employer will provide support can help, as well as updating flexible work policies.

How Pitt & Moore can help

At Pitt & Moore Lawyers our employment team can prepare and review Employment Agreements and Employment Policies, as well as review your current employment practices as part of an employment health check-up for your business.

Talk to us

If you would like advice on this topic or any other employment related issue please contact our Employment Team today.

Asking Employees to Work Extra Hours – a Common Fishhook for Employers

Written by Pitt & Moore Admin on . Posted in Employment Law, Immigration & Visas - New Zealand.

By Heather Collins

6 June 2023

It’s not uncommon for employers to need their staff to work extra hours from time to time. However care should be taken so that directions to work additional hours are compliant with the Employment Relations Act (the “Act”), and recorded correctly in the employment agreement. In short employers need to make sure that a correct “availability provision” is included in the employment agreement if the Act requires it in the circumstances.

You will recall that “zero hours contracts” were made illegal some time ago. These were agreements which required employees to be available for all work offered, without compensation for being available, and without any guaranteed hours of work. As an alternative to zero hours contracts availability provisions were introduced to allow some flexibility to request employees work additional hours, while also providing employees with increased protection.

Deciding on when an availability provision needs to be included in an employment agreement still manages to trip up employers. It’s important to understand when an availability provision is required, and if so what the clause should contain.

The key things to note are:

  • An availability provision needs to be included in an employment agreement if an employer can offer work at their discretion and the employee is required to perform that work if requested.

  • The employer must have genuine reasons based on reasonable grounds for including the availability provision.

  • An availability provision must set out:

a) what specific hours the employee is required to be available for work (in addition to the specified guaranteed hours of work); and

b) reasonable compensation for the hours that the employee must be available to accept work. Where the employee is on a salary it can be agreed in the employment agreement that the salary includes compensation (provided that this is reasonable in the circumstances).

  • When considering reasonable compensation the employer should take into account the number of hours the employee needs to be available, the proportion of those hours in relation to the employees guaranteed hours of work, any restrictions on the employee during the hours they need to be available and the employees pay under the employment agreement.

  • A deficient availability provision will not be enforceable, meaning that the employee will not be required to perform the additional hours of work.

  • If an employment agreement allows the employee to turn down an offer of work in addition to their guaranteed hours of work, an availability provision is not required.

How Pitt & Moore can help

At Pitt & Moore Lawyers our employment team can prepare and review Employment Agreements and Employment Policies, as well as review your current employment practices as part of an employment health check-up for your business.

What sets us apart is that each of our Employment Lawyers are also immigration experts. This means that we can advise on all employment issues affecting your business, including issues connected to hiring migrant workers.

Talk to us

If you would like advice on this topic or any other employment related issue please contact our Employment Team today.

The Importance of Workplace Policies

Written by Pitt & Moore Admin on . Posted in Employment Law.

By Heather Collins

6 June 2023

Polices play a vital role in ensuring that Employers and Employees meet their obligations to each other. Policies also provide useful guidance on what is and is not acceptable in the workplace, and how breaches are dealt with.

It is worthwhile taking the time to consider whether the current policies in place for your business are adequate, and whether any additional policies are required.

We have outlined below some of the key employment policies which can be useful tools when running a business.

Health and Safety Policy

Health and Safety obligations of Employers have become increasingly onerous over the years. Having a well drafted Health and Safety policy tailored to your business can be an important part of meeting health and safety obligations.

A Health and Safety Policy often dovetails with other policies such as Drug and Alcohol Policies or Safe Driving Policies (discussed below).

Drug and Alcohol Policy

If Drug and Alcohol testing takes place at your business we recommend having a detailed Drug and Alcohol policy in place.

Ideally a Drug and Alcohol Policy should set out:

  • when an Employee is required to take a test (such as where there is reasonable cause, post-incident, and random testing)

  • what positions or areas at the worksite are safety sensitive (for the purposes of random drug testing)

  • how tests are performed

  • what is being tested for

  • what happens if an Employee refuses to take a test or tries to cheat on a test

  • What happens if an Employee receives a failed result (tests positive for drugs or alcohol).

Safe Driving Policy

If your Employees drive work vehicles as part of their employment then a Safe Driving Policy can ensure that they understand what their obligations are when using the vehicles and what to do if they are involved in an accident.

Harassment and Bullying Policy

Preventing harassment and bullying in the workplace, and dealing with this issue correctly if it arises, is an important obligation for all Employers. A Harassment and bullying policy can set out clearly to staff:

  • what constitutes harassment and bullying

  • what Employees are to do if they are subject to harassment or bullying at work

  • the procedure the Employer will follow if a complaint about bullying or harassment is raised.

Electronic Devices/Social Media Policies

It can be useful to have a policy setting out how Employees are to use internet, voicemail and email while at work (both for business purposes or personal use). If an employer is monitoring business emails and internet use then it’s important the Employees know about this.

If a cell phone, laptop or other electronic device is provided to the Employee then an Electronic Device Policy can set out useful information about how that device is used and when it can be used, as well as how business confidentiality is to be maintained.

A Social Media Policy can clearly set out what an Employee can post on social media about their employment and other employees. It can also prohibit posting information sensitive to the Employer.

Privacy Policy

We suggest that at a minimum a Privacy Policy sets out what information is being collected, why and how the personal information is gathered, who will hold the information, how long it will be kept for, how it will be stored, and how an Employee can access and correct that information.

If an Employer is looking to use surveillance cameras in the workplace or work vehicles (either for general security or to monitor staff) then staff should be told about this in advance unless there are good reasons not to. As mentioned above Employees also need to be told how the information will be stored, that they can view it, how to make a request to view it etc.

How Pitt & Moore can help

If you would like us to review your current policies or draft new policies for your business we are happy to assist. We can also advise on how to introduce changes to policies and new policies to staff in a procedurally correct way.

Talk to us

If you would like advice on this topic or any other employment related issue please contact our Employment Team today.

group of people using laptop computer

New Employment Legislation on the horizon

Written by Veneeta on . Posted in Employment Law.

By Hannah-Jean McCarty

6 March 2023

There are numerous legislative changes on the horizon and employers are in for a busy year adjusting to new employment law developments.

Minimum Wage Increase

The minimum wage increase to $22.70 will come into effect from 1 April 2023. The increase is in line with recent increases in inflation and the current cost of living crisis. The starting out and training minimum wage will increase to $18.16. The effect on employees is significant, with the MBIE stating around 222,900 people are paid between $21.20 and $22.70.

There are concerns as to the effect on small businesses, with the 7% wage increase on previous increases which may introduce greater wage costs to the business.

Despite no legal requirement to provide a pay rise to those on $22.70, this minimum wage increase may give rise to pay inconsistencies for more experienced employees. If not already in the pipeline, it is a good time to create a strategy for managing pay relativity.

Holiday Act Changes

Although unclear when, changes to the Holiday Act are coming, The changes will introduce more transparency and clarity in determining aspects such as leave.

Annual Leave Payments (ALP) have previously been calculated at ordinary weekly pay or the average weekly earnings over the previous twelve months. A new calculation has been added that the ALP can also be paid at the weekly earnings over the last 13 weeks. Likely to have the most effect on commission based employment, as their earnings fluctuate and thus are more likely to be affected by this new calculation.

Timeframes on leave entitlement are soon to be changed. Employees will be entitled to sick leave on their first day of employment instead of waiting 6 months. Similarly, leave entitlement will change to pro rate basis, meaning an employee will be entitled to 2 weeks leave after 6 months of employment.

Parental leave will no longer affect ALP when an employee returns to work. Previously, an employee who returned from parental leave received a reduced ALP for 12 months following their return to work. However, under the changes the returning employee will receive their full rate for annual leave.

The Employment Relations (Extended Time for Sexual Harassment) Amendment Bill

The proposed bill will extend the time a person has to raise a personal grievance (PG) involving sexual harassment from 90 days to 12 months, to acknowledge that victims of sexual harassment may require more than 90 days to feel comfortable making a complaint. The 90-day rule does not reflect the way sexual harassment occurs in practice, this extension will allow complex and difficult sexual harassment matters to be dealt with more effectively. Employers need to be aware of situations where a PG involves allegations of sexual harassment alongside other allegations. Furthermore, some have expressed disappointment that the bill does not include workplace bullying or discrimination.

If you require any further information or clarification about upcoming legislation and how they may affect your business contact Pitt & Moore’s employment team on 03 548 8349.

Expect unions to soon impact your business

Written by Veneeta on . Posted in Employment Law.

While union membership has been declining for a few decades, the balance of power is shifting back to unions. If you are an employer, you should be interested in the proposed “Fair Pay Agreement” system which will likely soon pass into legislation.

The intent of the legislation is described by the Labour Government as a way to lift wages of those on low to medium incomes, to “level the playing field” and to make a fairer system for workers. The National Party describes it as imposing mandatory union deals on workplaces. Regardless of your position on the political spectrum, this legislation will have significant impacts across the entire New Zealand workforce.

Who will be covered?

Any occupation can be covered by a fair pay agreement – cleaners, bus drivers, accountants, personal trainers, lawyers – the list goes on. Similarly, entire industries can be covered – such as all butchers and bakers in the supermarket/grocery industry, or all pickers and packers in the horticulture industry.

Effectively, once a union (or unions) has 1000 members (or 10%) support from a particular industry/occupation, or passes a public interest test – it can commence bargaining on behalf of all workers in that sector. Employers will be represented by representatives in negotiations. No detail has yet been released about how employer representatives will be selected.

What will the terms of the agreement be?

This will be up to the union representatives and the employer representatives.

It will be mandatory to reach agreement on normal hours of work, the coverage of the agreement, base wage rates, overtime and penalty rates. Other matters are mandatory to discuss, but not agree – such as health and safety requirements, training and development arrangements, flexible working, leave entitlements or redundancy.

How will the agreement be made and what impact will it have?

The agreement will be negotiated between the parties, who will receive funding and support from the Government to assist them in the process. If the parties cannot reach agreement – the Employment Relations Authority will step in and can refer the parties to mediation or facilitated bargaining. If that is unsuccessful, a party can apply for the Authority to “fix” the agreement.  

Once the negotiating union/employer representatives have agreed, it must be approved by a simple majority of both employee and employer voters. The negotiated agreement will then be the minimum standard for all employees in that industry/occupation.  

When are these changes coming in?

At the time of writing, the Fair Pay Agreements Bill is going through Select Committee. Submissions are open until Thursday 19 May 2022. The system is expected to commence shortly after the Bill has passed, at the end of 2022. The Government has indicated that it will ultimately be expanded to include contractors, but full detail about this has not yet been released. In the meantime, there will be penalties of up to $20,000 for an employer who tries to hire an employee as a contractor to avoid having to meet the requirements of a fair pay agreement.

Costs in the Employment Relations Authority

A further strengthening of unions has quietly occurred within the Employment Relations Authority. Usually when parties are in dispute, the successful party can get a costs award from the unsuccessful party, to help pay some of the legal costs the successful party incurred. This is a general presumption that applies in all levels of our court system, although each court and tribunal keeps a discretion over whether an order is made.

However, a new Practice Note advises that parties can expect no costs award to be made in an employer/union dispute before the Authority.  This is a significant change as unions can now initiate claims without fear of having to meet a costs award if unsuccessful.

Employers will need to choose the better of two options – settlement or unrecoverable legal fees with a public Authority determination. Which would you choose?

If you would like more information about the proposed Fair Pay Agreements Bill or assistance with a union dispute, contact Heather Collins or Sarah Thompson at Pitt & Moore – (03) 548 8349 or heather.collins@pittandmoore.co.nz

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Nelson 7010
Fax: 03 546 9153
Email: mail@pittandmoore.co.nz

Postal address
PO Box 42, Nelson 7040
DX WC70013

Richmond

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Richmond 7020
Fax: 03 546 9153
Email: mail@pittandmoore.co.nz

Postal address
PO Box 42, Nelson 7040
DX WC70013

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