Lessons for employers from a visa applicant’s unfair termination

By Heather Collins

9 March 2021

As immigration and visa specialists, we recently provided independent expert witness advice to the Employment Relations Authority on the case of Dilshaad Gill v Restaurant Brands Limited (RBL), where complex communications issues led to a finding of unjustified dismissal.

Applicant Mr Gill was employed by respondent RBL on a permanent basis in Johnsonville, Wellington from 2017 to 2019 as an Assistant Restaurant General Manager. RBL currently operates and owns the master franchising rights for the Carl’s Jr., KFC, Pizza Hut, and Taco Bell brands in New Zealand.

Given his work visa would expire in March 2019, Mr Gill emailed RBL in November 2018 to request documents in support of an essential skills work visa application. Mr Gill was under the belief that RBL would continue to support him in respect of his visa application and his employment: communications led Mr Gill to believe that RBL were following a process to assist him. In February, however, Mr Gill learned that he was unsuccessful in the recruitment round undertaken for his role. He was advised by RBL that his job was offered to a New Zealand citizen and therefore RBL could not support his application for a new work visa. Mr Gill took this as notice of his (unjust) dismissal on 14 February 2019.

It is clear from the wider details of this case that both parties had conflicting views about what they were discussing in regard to Mr Gill’s employment. Mr Gill saw himself as a permanent employee; applying for his visa with RBL’s support, and re-applying for his role, were a formality (as emails from RBL suggested). RBL, however, understood his need for a new visa but did not regard that as imposing any responsibility on them in terms of supporting his new work visa application. They believed they were obligated to appoint a New Zealand citizen if they could, hence the recruitment process.

The Authority determined the case in favour of Mr Gill and ordered RBL pay a sum of $18,000 for hurt and humiliation.

The lessons from the findings of this case are clear:

  • A positive duty falls on the employer to be clear with their communications and to act in good faith (as per Section 4 of the Employment Act).
  • Employers must let their staff know as early as possible that they are not intending to support visa applications (and why).
  • In these circumstances, employing a replacement pre-emptively (and unfairly) dismisses a current employee from their role.
  • Even if an employer believes an employee will be unsuccessful in a visa application, they are obligated to discuss the situation with the employee.
  • Advertising for a position should only occur when it is certain the role will be vacated appropriately.
  • It is not ethical to predetermine the outcome of a visa matter and guess the outcome. This only disadvantages employees.
  • Seek visa and employment advice early to avoid financial and emotional impact.

Get professional advice

The laws surrounding employment and immigration move quickly, and are designed to protect both employees and employers.

Get in touch with us at Pitt & Moore Lawyers for professional advice that will give you peace of mind.

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 issues.

Talk to us

We can ensure that you receive comprehensive legal advice on all aspects applicable to your particular circumstances. Feel free to contact Elly Fleming or any other member of our Employment and Immigration team.

The new Privacy Act is in force – are you compliant?

By Geoff Caradus

3 March 2021

The new Privacy Act came into force on 1 December 2020, providing a modified (and in certain respects more onerous) regime governing the collection, storage and use of information about identifiable individuals (referred to in the Act as “personal information”). In particular, the new Act requires any entity or person who holds personal information (referred to in the Act as an “agency”):

  1. To take reasonable steps to ensure that any person from whom they collect personal information is aware of various matters, such as the fact that the information is being collected, why it is being collected and who will be the recipients.
  2. To only collect private information from individuals for a lawful purpose (and only to the extent it is necessary for that lawful purpose).
  3. To notify the Office of the Privacy Commissioner and the individual affected where a privacy breach poses a risk of serious harm to that individual (which is assessed taking into account various factors prescribed in the new Act).
  4. To appoint a privacy officer who will be responsible for:

    • ensuring that the agency complies with the Act (which of course means that the privacy officer themselves must be familiar with the requirements of the Act);

    • dealing with requests made under the Act, such as access to personal information, or correction of personal information; and

    • acting as the agency’s liaison with the Office of the Privacy Commissioner in relation to investigations and the like.

Most of these new requirements should be easy enough for businesses and other agencies to get right provided they know what is required of them.  In this respect the Office of the Privacy Commissioner provides a range of free and well put together training videos and courses at the website https://www.privacy.org.nz/tools/online-privacy-training-free/ We are available to assist also, if you would like.

A good example of common, obvious and also very easy to fix non-compliance would be the use of Covid-19 register or other visitor registers at the entry point to businesses without the inclusion of an appropriate privacy statement consistent with the requirements of the Act.

Fines for non-compliance with the Act can extend to $10,000 per incident and damages payable to the victim for serious breaches have been known to exceed $100,000. Putting the pure legal and financial ramifications to one side, it doesn’t seem like many months go by without the media running a significant story on a breach of privacy – usually doing untold reputational damage to the subject of the story. Given these potential repercussions of failing to comply with the new Act, if you haven’t already done so, now is the time to get yourself familiar with the requirements and ensure that you are compliant. 

Talk to us

For more information or professional advice on this topic please contact Geoff Caradus.

Compulsory Employer Accreditation Coming Your Way in 2021

In 2018-19 the Government consulted on key proposals which will significantly impact New Zealand businesses who employ or might employ migrant workers, as well as on migrant workers.  Those proposals have now been finalised, and are likely to be implemented later this year (following a COVID related delay). Those changes are summarised below.

Work visas applications will be via a new employer-led framework which will consist of three gateways:

Gate 1: The Employer Check (Accreditation)

Gate 2: The Job Check (Labour Market Test)

Gate 3: The Migrant Check

Under this framework, the onus of providing information at the initial stage shifts from the migrant worker to the New Zealand employer. Employers will need to follow a process of submitting an application to Immigration New Zealand with a range of prescribed supporting evidence about their business and paying an applicable fee.

The following six temporary work visa categories will be scrapped and replaced with one type of visa under the new framework:

  • Essential Skills including the Essential Skills in Demand Lists
  • Work to Residence – Long term Skill Shortage List occupation
  • Approval-in-Principle
  • Talent (Accredited Employer)
  • Silver Fern (Practical Experience)
  • Silver Fern (Job Search)

The new framework would require employers to hold ‘Employer Accreditation’ status with Immigration New Zealand before a visa could be approved for a migrant worker. This requirement is likely to include employers with existing employees on a work visa that require a visa extension.

The actual mechanics of Accreditation are not yet clear.  However it is reasonable to assume that to hold Accreditation employers will have to demonstrate they are compliant with immigration and employment law, are sustainable, and have appropriate policies and workplace practices.

There will have to be some sort of application process for employers to become accredited, and once the framework is introduced only accredited employers will be able to support migrants for work visas.  A significant hurdle is that at present the Government is proposing to have the new framework come into place on one day, without any kind of preparation or lead in process.  This means all 53,000 New Zealand employers who employ migrants are going to need accreditation for any future work visas from that time.  The administrative burden on Immigration New Zealand of the immediate introduction appears not to have been a consideration. 

To put themselves in a good position and at the front of the queue for accreditation it would be prudent for New Zealand businesses, who already employ migrant workers or intend to in the near future, to plan for this major change, review their processes and practices to ensure that they would be able to meet Immigration New Zealand’s requirements for accreditation.

In fact it would be prudent for all New Zealand businesses to make themselves ‘accreditation’ ready given they may need to employ migrants in the future even if that need is not there now. All New Zealand businesses should carefully consider whether they:

  • meet all immigration and employment law standards
  • have the requisite workplace policies and processes in place
  • understand the consequences of being placed on the MBIE’s stand down list 
  • want to offer a pathway to residence for prospective migrant workers.

Once the compulsory employer accreditation comes into effect we anticipate that there are likely to be processing waiting periods which could have a detrimental impact on your business. As a result, we recommend that employers don’t leave applying for accreditation to the last minute.

We will continue to monitor the developments in this area and will provide further updates as needed. We encourage employers to subscribe to our Publications page.

Talk to us

Contact our Immigration Team for professional legal advice that will give you peace of mind.

Skilled Migrant Category in the time of Covid-19

During Levels 4 and 3 of New Zealand’s lockdown earlier this year, New Zealand businesses were encouraged to work from home if possible. We saw many companies develop new strategies and improve their systems. At Pitt & Moore Lawyers, we established a virtual office that kept us together but apart, working online and via phone to successfully continue delivering the service and solutions that our clients have come to expect.

Unfortunately, the same successes can’t be claimed by Immigration New Zealand. Throughout Levels 4 and 3 during March to May this year, a significant number of INZ staff couldn’t work from home. While visa applications and expressions of interest continued to come through, there were significant difficulties in processing applications, especially when it came to hard copy applications. Work by Immigration New Zealand almost ground to a halt.

While Auckland is again in the midst of Alert Level 3, this time Immigration New Zealand’s operations don’t appear to be as badly crippled, but further delays have crept in which is not good news for visa applicants.

Unprecedented delays

The lockdown and virtual closure of Immigration New Zealand during March to May this year, exacerbated an already massive backlog of skilled migrant category (SMC) residence applications. In November 2019, there were over 10,000 migrants who had submitted their SMC residence applications and were waiting for news from Immigration New Zealand. With seriously hampered processing ability and more applications still coming in throughout the initial lockdown period, that number quickly ballooned. Today, the figure is around 13,000.

We understand that Immigration New Zealand are currently allocating SMC applications to Immigration Officers for assessment that were lodged during January 2019. As a result, it appears on average it is now taking nearly 18 months for an SMC residence application to be allocated for assessment and up to 2 years for a decision to be made. This is an all-time high delay for the SMC category in New Zealand!

Many migrants who have lost their jobs as a result of Covid-19 and who have already submitted their SMC applications, may lose their opportunity to gain residence due to the processing delays.

Sadly, we can’t see this situation improving any time soon until perhaps Immigration New Zealand dedicates additional staff resources to address the SMC backlog.

A hold on the selection of Expressions of Interest

One of Immigration New Zealand’s responses to Covid-19 was to indefinitely suspend selection of Expressions of Interest (EOIs) from the EOI pool. This decision means that no new SMC applications can be lodged at this time.

Immigration New Zealand’s decision to stop selection is problematic for a number of reasons, least of all that EOIs are normally valid for 6 month from the date of initial submission, or until there is a further draw. Immigration New Zealand has not advised that it will reimburse EOI lodgement fees, nor have they given any indication as to when the selection process will recommence.

Another ramification of suspending selection of EOIs is that the exception to the labour market test for migrants who have been invited by Immigration New Zealand to submit their SMC applications, when lodging a new Essential Skills Work Visa application is not currently available. This means skilled migrants’ employers, who otherwise might not have had to prove there are no New Zealanders who can do their job when applying for an Essential Skills Work Visa, would need satisfy that test.

Whilst it is appropriate that New Zealanders are employed ahead of migrants, the migrant protection was put in place in recognition of the need to retain skilled migrants to maximise the level of skilled employees in the national workforce and to provide individual employers with certainty and continuity around their specific workforce.

Long term ramifications for New Zealand

The recent overhaul of Essential Skills Work Visa, which we have addressed in a separate article (go to https://www.pittandmoore.co.nz/publications/overhaul-of-essential-skills-work-visa-category/) is going to create continual uncertainty for migrant workers.

Skilled migrants may be forced to leave New Zealand, particularly if they don’t see a timely pathway to residence. Where does that leave New Zealand?

Given the large number of SMC applications in the queue, I contend that this is a strong indication of the level of skill shortage in the country at the moment.

Sure, there may now be New Zealanders who have been laid off or have returned to New Zealand who could now fill some of those roles, but to think that we do not still need large numbers of skilled migrants in our workforce is short-sighted.

And what happens when the domestic economy picks up and employers start to recruit for positions that were lost? Who will fill the roles that will be created to ensure that upswing? And what about when foreign economies pick up and those Kiwis who returned prematurely to New Zealand head back overseas?

If we don’t retain skilled migrants, then that may impact recovery of our economy.

Skilled migrants are a major part of that economic recovery. If we lose skilled migrants – doctors and nurses, engineers and electricians, bakers, butchers and the like, those with recognised qualifications and years’ experience – then, when the economy picks back up, they may not be eager to come back if we have treated them poorly in the short-term.

Covid-19 and its impact on our country make for an awkward situation, one that bridges public health, the economy, our communities and the world at large. But it’s also prompted some important dialogue regarding how the knee-jerk reactions of Immigration New Zealand are going to affect us long-term.

Talk to us

If you have any questions about the Skilled Migrant Category or need immigration advice or assistance with your current circumstances, please contact Mike McMellon on 03 548 8349 or Mike.McMellon@pittandmoore.co.nz.

Staff Redundancies in the Context of COVID-19

We’ll look back at 2020 as a year defined by COVID-19. Despite the challenging nature of the economic landscape we have endured (and will continue to manage during this recovery phase), the reality is that employers’ obligations to their employees remain intact. This of course extends to redundancies.

The starting point – Considering whether redundancies are necessary

For many businesses, redundancies are an unfortunate outcome of a difficult situation, and it’s important to get it right so that everyone can follow the best course moving forward.

It’s not enough for an employer to feel that their business is suffering and that cashflow is down – a factual and financial analysis of their business has to show that this is indeed the case. Any conclusion that redundancies are necessary must be correct and genuine, and the employer must be able to demonstrate that the proposed change – such as restructuring or redundancy – is needed for the business’s survival, health and resilience.

This is especially important because, if an employer wants or needs to propose a restructure, then that proposal (and the basis for it) has to be put forward to the affected employee or employees – along with any relevant information and documentation.

If an employer is putting forward a case for restructure or redundancy, then the facts have to be correct and verifiable, otherwise the consultation process will be undermined by less-than-accurate information. Again, a restructure shouldn’t be based on what an employer feels, but rather on the evidence that supports the decision.

Can employees who refused to agree to a reduction in pay be first on the list for redundancy?

Making an employee first on the list for redundancy simply because they refused a reduction in pay can’t be considered a genuine motive. Remember that redundancies are about positions, not people; the motive for redundancy must be role- and business-related, otherwise the process will be undermined and could lead to personal grievance claims.

On the other hand, removing a staff member who is more expensive than another staff member in a similar role could be an acceptable motive. That said care needs to be taken. There is a risk that an employee could claim that they are being disadvantaged because they wanted to stick to their terms of their employment, or were not in a position to agree to a reduction in pay. As a general proposition, the criteria used to select which employee may be made redundant should be a matter of consultation and must be objectively fair.

Before you take any steps, get some legal advice

The current circumstances are stressful for employers and employment issues are, unfortunately, more complex and difficult to navigate at the moment.

We’re advising our clients not to rush in to redundancies without first receiving tailored advice specific to their business. Advice now will reduce the risk of personal grievances later when employers will be working hard to regain their losses and get their businesses back on track.

Talk to us

We are employment law specialists. If you need any advice or guidance in this difficult time, please contact Heather Collins.

Overhaul of Essential Skills Work Visa Category

From Monday, 27 July 2020 Immigration New Zealand (‘INZ’) will be using different rules to assess Essential Skills Work Visa applications. The new rules will only apply to new visa application lodged on or after 27 July 2020.

Existing visa application submitted to INZ prior to 27 July 2020 will be assessed on the basis of prior immigration instructions.

What has changed?

The existing Australian and New Zealand Standard Classification of Occupations (‘ANZSCO’) skill bands have been replaced with a simple wage threshold to determine:

    • visa conditions

    • maximum visa duration

    • Labour Market Test requirements

    • ability to support partner’s and dependent children’s visas

Make no mistake, INZ will still be considering ANZSCO to determine the market rate as well as the level of qualifications and/or experience required for the role on offer. This is to ensure that the applicant who is being supported is paid at the market rate and holds appropriate qualifications and experience required for a particular role.

Appendix 7 to the INZ Operational Manual includes a list of occupations that can be treated as an exception to certain skill level assessments for Skilled Migrant Category (‘SMC’) residence policy. From 27 July 2020 this list will not be used to assess Essential Skills Work Visa applications.

The ANZSCO will still be used in assessment of SMC applications. No changes have been made to the SMC rules at this stage.

Remuneration and median wage

Applicants who are paid below the median wage, currently $25.50 per hour, will need to meet more stringent requirements to be eligible for an Essential Skills Work Visa.

Overview of the new rules

If paid below $25.50 per hour

  • Employers will need to engage with the Ministry of Social Development and obtain a Skills Match Report

  • Employers will also need to advertise the role and consider New Zealanders

  • Maximum duration for each visa will be 6 months for the next 18 months (i.e. during the period of 10 July 2020 to 10 January 2022)

  • Maximum combined duration of all work visas in jobs paying below the median wage is 3 years at which time holders of this visa will be subject to a stand down period of 12 months.

  • Support visitor visas for partners (partners can apply for a work visa in their own right)

  • Support visitor or student visas for dependent children (subject to meeting the minimum income threshold)

If paid at or above $25.50 per hour

  • Employers will need to advertise the role and consider New Zealanders

  • Skills Match Report not required

  • Maximum duration of each visa is 3 years

  • No maximum combined duration – not subject to stand down

  • Support visitor or work visas for partners

  • Support visitor or student visas for dependent children (subject to meeting minimum income threshold)

Get professional advice

We highly recommend for temporary visa holders who currently hold or want to apply for a Essential Skills Work Visa, to get in touch with us early so we can expertly guide you through your and your family’s options for remaining in New Zealand.

How Pitt & Moore can help

We offer an initial free consultation to all new clients to discuss your particular circumstances and what services we can provide.

What sets us apart is that we are experts in each step of the immigration process. This means that we can advise on all immigration and visa related issues.

Talk to us

We don’t just advise on the visa requirements, we can ensure that you receive comprehensive legal advice on to all aspects applicable to your particular circumstances, including compliance and employment

Contact our Immigration Team for professional legal advice that will give you peace of mind.

Update to Insolvency Laws

The Government has recently passed temporary legislation to help companies facing cashflow difficulties due to COVID-19. There are new protections for directors from normal solvency related duties and businesses can place certain debts into ‘hibernation’ while continuing to trade. These supplement the more traditional options available to businesses facing solvency issues.

Directors Duties

Directors are usually subject to the following duties under the Companies Act 1993:

  • Reckless Trading: A director must not agree to the business of the company being carried on in a manner likely to create a substantial risk of serious loss to the company’s creditors.

  • Duty in relation to obligations: A director must not allow the business incurring an obligation unless the director believes on reasonable grounds that the company will be able to perform the obligation when it is required to do so.

In the normal course of events, directors who are found to have breached those duties can face personal liability. To protect directors from such claims between 3 April 2020 and 30 September 2020 (this may be extended), directors may rely on “safe harbour” provisions where:

1. in the good faith opinion of the directors, the company is facing or is likely to face significant liquidity problems in the next six months as a result of the impact of COVID-19 on the company, its debtors or its creditors;

2. the company was able to pay its debts as they fell due on 31 December 2019 (or was first incorporated between 1 January 2020 and 25 March 2020); and

3. the directors consider in good faith that it is more likely than not that the company will be able to pay its debts as they fall due by 30 September 2021.

These provisions may assist directors to carry more risk than they may otherwise be comfortable with – thereby preventing them putting an otherwise viable company into liquidation. However, it is more important than ever that directors have accurate and current financial information, both for past performance and future projections. We note that there are no changes to director’s duties to act in good faith and to exercise the care, diligence and skill that a reasonable director would exercise in the same circumstances.

Business Debt Hibernation

The temporary Business Debt Hibernation (BDH) regime creates another option to help businesses keep trading, despite cashflow pressures. The BDH scheme puts a one month freeze on the enforcement of debts during the proposal process. A further six months ‘hibernation’ will be available if the proposal is passed.

A process will need to be followed to put a BDH scheme in place; it is not automatic. The business will need to meet a certain threshold, put a proposal to their creditors and obtain agreement from 50% (by number and value) of those creditors within a month.

While an entity is in BDH, it will be able to continue to trade, subject to any restrictions agreed with creditors. Certain debts cannot be hibernated, including debts to the IRD and employment related debts and (for the six months) certain secured creditors. Otherwise, BDH will apply to all creditors regardless of whether they voted for the proposal or not.

To encourage businesses to continue to transact, new payments or dispositions of property are exempt from the voidable transactions regime (unless it is to a related party) while a business is in BDH. However, transactions will still need to be entered into in good faith by both parties, on arm’s length terms and without intent to deprive existing creditors of the company.

Many businesses will be eligible for BDH, including companies, trusts and partnerships. However, sole traders, licensed insurers, registered banks and non-bank deposit takers are exempt.

For Further Advice

Due to the complexity in the legislation, and their novelty, obtaining legal advice before relying on these announcements is crucial. This is not a situation where DIY is appropriate; failure to comply can have a significant impact (e.g. there are a number of areas where a director placing a business in BDH can inadvertently commit an offence by not following the specific steps required).

Additionally, while this legislation is new, solvency issues aren’t. There are other options available, which may provide a better long term solution for you and your creditors. Tailored advice will identify the best option for your situation.

How Pitt & Moore Lawyers can help

Pitt & Moore Lawyers can provide tailored advice and assist businesses worried about solvency issues.

Talk to us

For professional legal advice that will give you peace of mind contact either Geoff Caradus or Anissa Bain.

Is Your Business Facing Solvency Issues Due to COVID-19?

The Government has announced new legislation is coming to help companies facing cashflow or administrative difficulties due to COVID-19.

These include:

  • Giving directors of companies who face cashflow issues due to COVID-19 certain “safe harbour” protections from normal solvency-related duties;

  • Enabling businesses affected by COVID-19 to place existing debts into hibernation yet continue trading;

  • Allowing greater use of electronic signatures;

  • Permitting normal legislated deadlines for companies, incorporated societies, charitable trusts and other entities to be extended temporarily by the Registrar of Companies; and

  • Granting temporary relief for entities unable to comply with requirements in their constitutions and rules because of COVID-19.

We note that the Government still needs to receive Parliament’s agreement to these changes, and for the changes to apply retrospectively to the date of the Government’s announcement (being 3 April 2020).

Directors Duties

Directors are usually subject to the following duties under sections 135 and 136 of the Companies Act 1993 (the Act):

  • s 135 (Reckless Trading) A director must not agree to the business of the company being carried on in a manner likely to create a substantial risk of serious loss to the company’s creditors.

  • s 136 (Duty in relation to obligations) A director must not allow the business incurring an obligation unless the director believes on reasonable grounds that the company will be able to perform the obligation when it is required to do so.

In the normal course of events, directors who are found to have breached those duties can face personal liability.

To protect directors from such claims over the next six months (to encourage them to continue to undertake their important role) the Government has announced its plans to introduce temporary “safe harbour” provisions to apply where:

  1. in the good faith opinion of the directors, the company is facing or is likely to face significant liquidity problems in the next six months as a result of the impact of COVID-19 on the company or its creditors;

  2. the company was able to pay its debts as they fell due on 31 December 2019; and

  3. the directors consider in good faith that it is more likely than not that the company will be able to pay its debts as they fall due within 18 months (for example, because trading conditions are likely to improve or they are likely to able to reach an accommodation with their creditors).

These provisions may assist directors to carry more risk than they may otherwise be comfortable with – thereby preventing them putting an otherwise viable company into liquidation. However, it is more important than ever that directors have accurate and current financial information, both for past performance and future projections. There are no changes to director’s duties to act in good faith and to exercise the care, diligence and skill that a reasonable director would exercise in the same circumstances.

Business Debt Hibernation

Similarly, the proposed Business Debt Hibernation (BDH) regime intends to make it easier for businesses to keep trading during COVID-19, despite significant cashflow pressures resulting from the pandemic. It intends to:

  • encourage directors to talk to their creditors with a view to putting together a simple proposal for putting the business into hibernation;

  • allow for the directors to retain control of the company, rather than passing control to an insolvency practitioner;

  • provide certainty to new creditors that they won’t have to repay any money they receive, so as to encourage businesses to continue transacting with businesses in BDH; and

  • be simple and flexible so that it can be enacted quickly, and businesses can readily apply it to their circumstances without having to obtain legal advice.

A process will need to be followed to put a BDH scheme in place as it won’t be automatic. The business will need to meet a (to be determined) threshold, put a proposal to their creditors and obtain agreement from 50% (by number and value) of those creditors within a month. However, during the proposal process, there will be a one month freeze on the enforcement of debts. A further six months moratorium will be available if the proposal is passed.

While an entity is in BDH, it will be able to continue to trade, subject to any restrictions agreed with creditors. Once passed, it will be binding on all creditors (but not employees), not just those that voted for it.

To encourage businesses to continue to transact with a company in BDH, the Government plans to make new payments or dispositions of property exempt from the voidable transactions regime (unless it is to a related party). However, transactions will still need to be entered into in good faith by both parties, on arm’s length terms and without intent to deprive existing creditors of the company.

Most businesses will be eligible for BDH, including companies, trusts and partnerships. However, sole traders, licensed insurers, registered banks and non-bank deposit takers are exempt.

How Pitt & Moore Lawyers can help

Pitt & Moore Lawyers can provide tailored advice on how your business may rely on the announcements made by the Government.

Talk to us

For professional legal advice that will give you peace of mind contact either Geoff Caradus or Anissa Bain.

Epidemic Management Notice and Temporary Visa Holders

Further to our article announcing the NZ Government’s issuing of the Epidemic Management Notice, Immigration NZ have now clarified that:

  • Temporary visa holders (those holding for example work, student and visitor visas) who have a visa expiring before and on 1 April 2020 and are unable to leave New Zealand must apply online for a new visa before their current visa expires.

  • If temporary visa holders can’t provide certain information required by the online form, such as a new medical certificate, they can upload an explanation instead in order to complete the online application.

  • Normally, following a submission of an online application, visa applicants are grated an interim visa automatically when their current visa expires.

  • An interim visa allows people to remain lawfully in New Zealand for up to a maximum period of 6 months.

We have been advised that all of Immigration NZ’s overseas offices are closed for the foreseeable future as a result of COVID-19. A small number of staff are currently operating from Immigration NZ’s Head Office in Wellington, their priority is dealing with any COVID-19 requests. No other visa applications are being processed at this time.

We will update you as further information comes to light.

Talk to us

If you hold a temporary visa please contact us if you require immigration advice or assistance with your current circumstances.

Epidemic Management Notice Issued

The New Zealand government has issued an epidemic management notice enabling the use of special powers to help control Covid-19. The parts of that notice which relate to immigration matters will come into force on Thursday, 2 April 2020. Immigration NZ have advised that the effect of the notice will be:

  • Temporary visa holders (those holding for example work, student, and visitor visas) who have a visa expiring before and on 1 April 2020 and are unable to leave New Zealand must apply online for a new visa. Subsequently an interim visa will be issued.

  • Temporary visa holders who have a visa due to expire between 2 April and 9 July 2020 inclusive will have their visas automatically extended to 25 September 2020. Immigration NZ says that an email confirming visa extensions will be sent to these visa holders. A visa holder must be in New Zealand in order to have their visa extended. The extensions don’t apply to resident visas.

We recommend for temporary visa holders whose visas expire on or before 1 April 2020 to take particular care to ensure that they apply for a further visa before the expiry of their current visa.

The Epidemic Management Notice also gives additional powers to Immigration Compliance Officers and Judges when detaining people who are liable for deportation. The notice expires on 25 June 2020, but can be extended by the Government if required.

We will update you as further information comes to light.

Talk to us

If you hold a temporary visa please contact us if you require immigration advice or assistance with your current circumstances.

COVID-19 Frequently Asked Questions What Employers Need to Know

Covid-19 is having an effect on all parts of all of our lives, not least in the way that we work. We are fielding a number of enquiries from our clients, and the frequently asked questions are set out below.

The important thing to bear in mind is to keep communication between all parties to an employment relationship open, frequent, and sensitive to each other’s circumstances. This is reinforced by the Employment Relations Act which requires employers and employees to be open and constructive with each other.

Please bear in mind that the below are general principles only, and specific circumstances may differ depending on employment agreements and other factors. For advice on your situation, please get in touch.

What happens with pay?

If an employee is “ready, willing and able” to work, then they must be paid their normal wage. If they are required by the government to self-isolate, then they are not ready willing and able to work and therefore not entitled to be paid.

If however an employer requires an employee to stay away from the workplace then the employee is entitled to be paid. The employee’s absence in this case is due to a decision of the employer, not the government or the employee themselves, and therefore are entitled to pay.

In the event of a Level 4 (or Level 3 in some circumstances) alert where people are required to stay home by the government and travel is severely limited, employees who cannot work from home will not be able to work, therefore not entitled to pay. If a business is required to shut by the government, the same will apply.

Many employers are likely to experience a significant downturn in their businesses. In this event a wage subsidy is available from the government. If there is no work for an employee, then technically employers should consult with respect to the prospect of redundancy. However, employers may look to agree with their employees reduced hours, periods of unpaid leave or other alternatives to redundancy. Specific advice should be sought on this point, as force majeure or frustration considerations may come into play.

Sick leave

Employees can use sick leave if they or a dependent family member is actually sick. Self-isolation is not in itself sickness, so sick leave is not strictly available to employees in this case. Employers are recognising the circumstances however and are being reasonably flexible.

Annual leave

If an employee wants to use annual leave then this should not be unreasonably refused. If an employer wants an employee to use their annual leave, and the employee does not agree to this, then the employer can require them to take annual leave with 14 days notice.

Returning to work

As a general principle employers will be able to request employees produce a negative test before returning to work – but only where the employer has reasonable grounds to suspect an infection.

Refusal to work

Employees are entitled to refuse to work under the Health and Safety at Work Act, if they have a reasonable fear that they may contract Covid 19. They do have to discuss this with their employers before doing so though.

Talk to us

We are employment law specialists. If you need any advice or guidance in this difficult time, please contact Heather Collins.

New Zealand Border Restrictions – Who is allowed to come to New Zealand?

The New Zealand Government has taken further steps to stop the spread of the COVID-19. Our Prime Minister announced yesterday additional entry restrictions that will mean many foreign nationals will not be allowed entry to New Zealand. However, it is not a complete ban.

The Government will review the restrictions in 14 days.

What is the position right now?

The new restrictions come into effect for passengers boarding a plane to New Zealand from 11:59pm 19 March 2020 to 11:59pm 31 March 2020.

Currently, the following people will be allowed entry:

  • New Zealand citizens;

  • New Zealand resident and permanent resident visa holders (BUT entry permission will be refused to residence class visa holders where the visa was granted offshore and the person is arriving in NZ for the first time);

  • The partner, dependent children or legal guardian travelling with a New Zealand citizen, resident or permanent resident visa holder;

  • Australian citizens and permanent resident visa holders whose primary place of residence is New Zealand;

  • Aircraft crew and marine crew;

  • Members of Armed Forces travelling on a military craft.

The New Zealand Government is not restricting freight and goods which are still coming in. Sea freight routes remain open for imports and exports, including essential supplies.

An exception to the travel restrictions can be requested on a case-by-case basis for:

  • Humanitarian reasons

  • Essential health workers, as confirmed by the Ministry of Health

  • Other essential workers, as defined by the New Zealand Government

  • Citizens of Samoa and Tonga, for essential travel to New Zealand

  • Partners and dependents of temporary work or student visa holders who normally live in New Zealand where the temporary work or student visa holder is currently in New Zealand.

All travellers to New Zealand must now isolate themselves for 14 days upon arrival.

Get professional advice

If you are currently overseas and you hold a visitor/work/student visa and you were planning to travel to New Zealand, please contact us if you require immigration advice or assistance with your current predicament.

Likewise, if you have already submitted your visa application and it’s still under assessment or you were planning to apply for a visa, please get in touch and we can provide you with tailored advice concerning your particular circumstances.

We know that these restrictions will have a big impact on New Zealand employers as well as on migrants. At times like these, practical and reliable advice is essential as mistakes can be costly.

We also understand that Immigration New Zealand’s Manila office was closed on 18 March 2020 because the COVID-19 situation in the Philippines has changed. This office usually processes applications including Essential Skills, Specific Purpose and Partnership work visa applications. These applications will be reallocated to other Immigration New Zealand branches for processing.

Talk to us

We don’t just advise on the visa requirements, we can ensure that you receive comprehensive legal advice on to all aspects applicable to your particular circumstances, including compliance and employment.

Contact our Immigration Team for professional legal advice that will give you peace of mind.

Employer Assisted Work Visas

All businesses who employ migrant workers will have read about upcoming changes in the immigration space. Communication from Immigration New Zealand hasn’t been entirely clear however, so this article will try to shed some light on what employers and migrant workers can expect over the next year.

Currently the skill level of a position is assessed by skill bands using the Australia New Zealand Standard Classification of Occupations (ANZSCO) along with remuneration. Immigration New Zealand have finally recognised that the ANZSCO is not fit for purpose, and so from mid 2020 that assessment will be removed for Essential Skills Work Visas. Instead there will be a simple income threshold based on median incomes at the time. Essentially if an employee is paid above the median income (currently $25.50 per hour) their employment will be assessed as skilled no matter what position they hold, and they will be eligible for a renewable three year visa.

Nelson has been designated as a “Higher Supply” region. That means that for applications for employees being paid above the median wage from early 2021 there will no longer be a labour market test – so there would be no need to advertise the position or work with Work & Income. This will be coupled with a requirement for employers have some sort of accreditation before they can sponsor a migrant worker (for detail on this please see our article on our Employer Accreditation). Please note that this is subject to the current Government being re-elected – election year has a way of throwing up surprises in the Immigration field.

Conversely however for employees paid below the median wage the labour market test will be much more stringent than the one presently in place. These employees will also only be granted 12 month visas, and can stay for a maximum of 36 months before they have to leave New Zealand for a minimum of 12 months (assuming they do not get a position which might mean they are eligible for a three year visa).

The ability to sponsor partners and dependent children has also been reinstated for this category of employee, but the rather perverse condition has been put in place that they can only receive visitor or student visas, and they will not be able to work. It was put to Immigration New Zealand that this approach will lead to migrants living in poverty – as only one person in the family can work, by Immigration New Zealand’s own definition they are relatively lowly paid, and the families will not have access to any government support including healthcare – but they appear to be determined to push ahead with it.

Regional Skill Shortage Lists will also be introduced – this is a welcome change provided it is done in consultation with local employers. It means that the different labour requirements of different regions will be recognised and catered for.

From early 2021 a new pathway to Residency will be opened for employees paid 200% of the median income, no matter what position they hold.

Finally, “Sector Agreements” are being negotiated in certain industries. These are designed to allow access to migrant workers for employers in a sector, with the trade-off being progress towards improvements in terms and conditions over time.

So, for some employers employing migrants will become significantly easier, while others may struggle in the new regime.

Talk to us

If you have any queries in respect of employer assisted work visas or the upcoming changes, or any other immigration related issues, please contact our Immigration Team.

Compulsory Employer Accreditation Coming Your Way

The Government has recently consulted on key proposals which will significantly impact New Zealand businesses who employ or might employ migrant workers, as well as on migrant workers.

The Government intends to scrap the following six temporary work visa categories and replace them with a new framework:

  • Essential Skills including the Essential Skills in Demand Lists
  • Work to Residence – Long term Skill Shortage List occupation
  • Approval-in-Principle
  • Talent (Accredited Employer)
  • Silver Fern (Practical Experience)
  • Silver Fern (Job Search)

The new framework would require employers to hold ‘Employer Accreditation’ status with Immigration New Zealand before a visa could be approved for a migrant worker. This requirement is likely to include employers with existing employees on a work visa that require a visa extension.

This means that employers would need to follow a process of submitting an application to Immigration New Zealand (INZ) with a range of prescribed supporting evidence about their business and paying an applicable fee. Currently, the INZ fee for an initial Employer Accreditation application is $2,130.

From the documents released for consultation and information provided during community information sessions conducted by The Ministry of Business, Innovation and Employment (‘MBIE’), the message is clear – the government is very much set on introducing compulsory employer accreditation, what is open to negotiation are the mechanics of the accreditation process.

Impact on your business

The Government has indicated that in preparation for the move to the new framework, in August 2019, they would implement changes to:

  • the remuneration threshold for the Talent (Accredited Employer) Work Visa, increasing it from $55,000 per annum (or $26.50 per hour) based on a 40 hour working week to $78,000 per annum (or $37.50 per hour) based on a 40 hour working week. The Government has indicated that migrant workers who are already on the pathway to residence under the current Talent (Accredited Employers) visa policy would not be affected by this change and will still be able to qualify for residence if they meet the requirements of their existing visas.
  • the highly-paid threshold for Essential Skills Work Visa Category by increasing the hourly rate from $37.50 to $50.00, for employment with non-accredited employers, but dropping the labour market test requirement; and
  • the arrangements impacting mid-skilled workers under the Essential Skills Work Visa Category, whereby the remuneration threshold for mid-skilled workers will increase from $21.25 per hour to $25.00 per hour (bringing it in line with the Skilled Migrant Category remuneration threshold for ANZSCO levels 1-3 occupations). With the result that those migrant workers who hold Essential Skills Work Visas but are paid less than $25.00 per hour being re-classified as lower-skilled at their next visa application.

    The Government has indicated that this change is likely to have an impact on almost 10,000 migrant workers who are currently mid-skilled visa holders earning less than $25.00 per hour.

    The Government has also stated that the occupations most impacted by this change would be construction trade workers, food trades workers, hospitality and retail managers and automotive engineers

To be clear, however, at this time these changes have only been flagged by MBIE. They are not set in stone. The Minister of Immigration will announce final immigration policy changes in June 2019.

The Government has further indicated that between April and June 2020 they will introduce the new framework with compulsory employer accreditation.

It would be prudent for New Zealand businesses, who already employ migrant workers or intend to in the near future, to plan for this major change, review their processes and practices to ensure that they would be able to meet Immigration New Zealand’s requirements for accreditation.

In fact it would be prudent for all New Zealand businesses to make themselves ‘accreditation’ ready given they may need to employ migrants in the future even if that need is not there now. All New Zealand businesses should carefully consider whether they:

  • meet all immigration and employment law standards
  • have the requisite workplace policies and processes in place
  • understand the consequences of being placed on the MBIE’s stand down list
  • want to offer a pathway to residence for prospective migrant workers.

How Pitt & Moore Lawyers can assist

We are experts in this field and can review your workforce composition, policies and processes as part of our business health check audit. We can explain to you how the new framework may impact your business.

We can also provide support with designing, implementing and monitoring your systems and processes to ensure compliance with your obligations as employers.

Likewise, we can assist with the preparation of applications for Employer Accreditation.

Don’t leave Employer Accreditation to the last minute

If in the next few months you are intending to employ more migrant workers, we recommend that you consider applying for Employer Accreditation ahead of time, particularly if you want to offer a pathway to residence to your migrant workers.

Once the compulsory employer accreditation comes into effect there are likely to be processing waiting periods which could have a detrimental impact on your business.

Talk to us

Contact Mike McMellon today to get advice on the best way forward for your business.

The Real Cost to Businesses of Breaching Minimum Employment Requirements

Three recent decisions of the Employment Relations Authority have emphasised the importance of employers complying with minimum employment requirements – and the significant penalties employers can face by failing to do so.

Silviculture Solutions Limited decision – failure to pay minimum wage

Silviculture Solutions Limited, a large forestry company which employs up to 250 staff has been ordered to pay $35,000 after failing to pay its workers minimum wage. As a result of this penalty the company has been placed on the Immigration Employer Stand-down List preventing it from employing migrant workers for 18 months. It is noteworthy that approximately half the company’s workforce normally comprises of migrant workers.

The Employment Relations Authority held that the company used an “illegal system of calculating pay” because it only paid employees for their “productive hours” – being the time that the company expected the work to take – not the actual hours worked by the employees. In addition the company failed to pay workers for their attendance at safety meetings, or time spent preparing equipment and travelling to various work sites in the forest.

Golden Spring Takeaway decision and Modern Floor and Wall Limited decision – various breaches

Napier based restaurant Golden Spring Takeaway has been ordered to pay $30,000 for breaching a number of minimum requirements including failing to keep wage, time, holiday and leave records and failing to keep copies of employment agreements for its staff. Likewise the Auckland based flooring company Modern Floor and Wall Limited and its director have been fined a total of $25,000 for failing to pay the minimum wage and holiday pay and failing to keep holiday and leave records.

What you can do to protect your business?

The Employment Relations Authority is sending a firm message that breaches of minimum employment standards will not be tolerated. It is vital that employers understand their minimum employment requirements and apply them correctly to avoid penalties and being placed on the Immigration Employer Stand-down List. Both actions can have a significant impact on the bottom line and reputation of a business.

If you are unsure whether you are complying fully with minimum employment requirements Pitt & Moore Lawyers can help by completing an employment compliance health check for your business.

Talk to us

If you have any queries in respect of minimum employment standards, or any other employment law issues, please contact our Employment Team.

Roundup of Changes in Employment Law

Numerous employment related Bills have made their way through Parliament, with significant changes on the horizon for employers set to come into force during 2019. The employment landscape is set to shift towards greater employee and union rights.

With this in mind, it is crucial for employers to start preparing for the impacts of the legislative changes on their businesses.

Employment Relations Amendment Bill 2018

Caught amongst the rush as we head into the 2018 holiday season is the passing of the Employment Relations Amendment Bill 2018 (“the Bill”). The Bill has certainly has its fair share of ups and downs since it was first introduced to Parliament in January 2018.  

The Bill received Royal assent on 11 December 2018, with some changes taking immediate effect. Other changes are set to be implemented on 6 May 2019.

Changes that take immediate effect from 11 December 2018:

  • Union representatives will be able to enter workplaces without consent if the employees are covered under or bargaining towards, a collective agreement.
  • No more pay deductions for partial strikes but, an employer can respond to a partial strike the same way as any other strikes, such as suspending employees without pay or a lockout.
  • Businesses will be obliged to enter into bargaining for multi-employer collective agreement (MECA) if asked to join by a union, unless there are reasonable grounds for them not wanting to do so.
  • Protections against discrimination of employees based on the union membership status will be extended to 18 months, of employees undertaking union activities. This was previously 12 months and is not retrospective.
  • A union will be able to initiate bargaining 20 days ahead of the employer.
  • If an employee requests reinstatement in the course of bringing a claim for unfair dismissal, the Employment Relations Authority (ERA) will need to consider reinstatement as the first course of action, if it is reasonable and practicable for both parties.
  • New categories of ‘vulnerable employees’ may apply to receive protections afforded via an application process set out in the Act. Vulnerable employees include those who work in caretaking and cleaning services.
  • Categories of “vulnerable employees”  may be added to, varied or removed in response to changing work conditions by the Minister.
  • The ability of the Employment Relations Authority to make a determination that bargaining is over has been removed. 

 Changes from 6 May 2019:

  • The right to set rest and meal breaks will be restored based on the number and duration of hours worked. An employer and employee will have to agree as to when the breaks should be taken, if there is no agreement (written or oral) then the breaks should be taken in the middle of the work period, as long as it is reasonable and practicable to do so.
  • No more 90-day trial periods for businesses with more than 20 employees. However, employer will be able to continue to use probationary periods to assess an employee’s skills against the role’s responsibilities.   Note: Probationary periods are different to the 90-day trial. Employers will need to carry out fair process during the probationary period in assessing the employee’s skills such as by telling them if there are issues with their work, how they can fix those issues and giving the employee the opportunity to improve.
  • Unless there are genuine reasons based on reasonable grounds not to, the duty to conclude bargaining will be restored for single-employer collective bargaining.
  • For the first 30 days, new employees must be employed under terms consistent with the collective agreement. The employer and employee may agree on more favourable terms than the collective after this period.
  • Pay rates and indication of how pay may increase over the term of collective agreement, will need to be included in collective agreements.
  • Within the first ten days of employment, employers will need to provide new employees with an approved ‘active choice form’ so that the employees can have the time to consider whether they should join the union.
  • Employees who are union delegates will have to agree or at least, notify their employer in advance, if they have to undertake their union activities. These union delegate employees will need to be paid for a reasonable amount of time to exercise their union activities, however, the employer can also deny the request on reasonable grounds.
  • Unions may provide to the employers information about the role and function of unions, to provide to prospective employees. The employer will need to pass on this information unless:
  1. The information is confidential; or
  2. The information:
    1. is about the employer; and
    2. may mislead or deceive the prospective employee ; and
    3. would significantly undermine bargaining between the employer and prospective employee.
  • If restructuring takes place, employees in specified ‘vulnerable industries’ (e.g. cleaning services, food catering service etc.) will be able to transfer to the new employer, on the terms and conditions of their old job, regardless of the size of their employer, by giving a notice period of at least 10 working days.

Domestic Violence – Victims’ Protection Act 2016 

Amendments to the  Domestic Violence – Victims’ Protection Act 2016are set to take effect on 1 April 2019.

The new law aims to enhance legal protections in the workplace for people affected by domestic violence.

From April 2019, employees affected by domestic violence will be entitled to paid ‘domestic violence leave’ of up to 10 days each year. Employees will also be able to request flexible working arrangements for a short-term (up to two months or less) to which the employer will need to respond urgently (within 10 working days)

The law also explicitly prohibits an employee being treated adversely in their employment on the grounds that they are, or are suspected to be, a person affected by domestic violence.

Employees will also be able to raise a dispute if they believe that their employer unreasonably refused a request made under the new provisions, and must do so within six months.

Overall, it is clear that significant changes will be taking place. Whilst a large portion of it is in relation to Union and Collective bargaining rights, these are all changes that every employer should bear in mind. With various other bills still going through Parliament such as the Equal Pay Amendment Bill ,  Employment Relations (Triangular Employment) Amendment Bill and Holidays (Bereavement Leave for Miscarriage) Amendment Bill, the employment landscape is continuing to change.

There is an onus on employers to ensure that they remain compliant with employment law.

Talk to us

If you have any queries in respect of employment law issues, please contact our Employment Law Team. 

The Burger King Ban and the Importance of Employment Law Compliance

All employers are required by law to comply with minimum employment standards. When an employer fails to meet these standards they risk being placed on a publically available stand down list maintained by the Labour Inspectorate.

The stand down list includes employers who have been subject to penalties for breaches of the minimum standards. Once placed on the list the employer is prevented from supporting visa applications for prospective migrant employees for between 6 – 24 months (depending on the type of breach which has occurred). This can have a real impact on employers who are reliant on hiring visa holders.

Recently Burger King New Zealand was placed on the stand down list by breaching minimum wage requirements. The breach occurred when one of Burger King’s salaried employees worked so many hours that their hourly rate dropped below the minimum wage.

This is a timely reminder that no matter the size, all employers must be compliant with their employment obligations.

We suggest that employers conduct regular reviews of their employment agreements, policies, and procedures to ensure that they are up to date and compliant. In addition to reducing the risk of being placed on the stand down list, regular compliance check-ups also reduce the risk of personal grievances and other claims which can result in losses of time, money and reputation to a business.

There have been a number of changes to employment law recently such as new rules regarding availability of employees to work (“availability provisions”) and cancellation of rosters which can easily catch employers out. There are also a number of changes in the pipeline as the new Government looks to make amendments to 90 day trial periods, the liability of employees who use employment hire companies and a number of other areas.

If you would like a review of your employment agreements, policies or the employment procedures you currently have in place, we are happy to discuss these with you and help you to be fully compliant with your obligations.

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If you have any queries in respect of minimum employment standards, or any other employment law issues, please contact our Employment Law Team.

Triangular Employment Relationships

The Employment Relations (Triangular Employment) Amendment Bill is currently before the Select Committee and if implemented will have major implications for both labour hire companies and employers who hire labour.

The purpose of the Bill is to ensure that where an employee is employed by one organisation, but is controlled or under the direction of another organisation, the employee is not:

  • subject to a detriment with respect to their right to raise a personal grievance;

  • deprived of their right to have coverage of a collective agreement.

Primary Employers and Secondary Employers

The Bill refers to:

1. The “Primary Employer” who is the individual or organisation which employs the employee; and

2. The “Secondary Employer” which has a contract with the Primary Employer for the employee’s labour and has control and/or direction over the employee.

The Impact of Personal Grievances on Primary and Secondary Employers

If implemented the Bill will allow an employee to bring a personal grievance against both the Primary Employer and the Secondary Employer and apply to the Employment Relations Authority to join the Secondary Employer to the grievance.

A Secondary Employer can be joined to a Personal Grievance where their actions resulted in or contributed to the grounds of the personal grievance. Where the Secondary Employer is joined to a grievance the actions of the Secondary Employer are deemed to be the actions of the Primary Employer.

If a Secondary Employer is joined to a grievance, they will be jointly liable with the Primary Employer for any remedies awarded unless the Court or the Employment Relations Authority orders an apportionment of the remedies.

Collective Agreements

The Bill also allows for the Primary Employer to be bound by a collective agreement which the Secondary Employer is a party to, if the employee is:

1. performing work for the Secondary Employer which is covered by a collective agreement the Secondary Employer is a party to;

2. a member of the union party to that collective agreement;

3. not bound by any other collective agreement to which the Primary Employer is a party.

Unintended consequences of the Bill?

The Bill appears to be targeted to labour hire companies and organisations which regularly hire staff in order to run their businesses. However the Bill could have the potential to capture other situations. For example, where an organisation hires cleaners from a cleaning company to clean their offices, the organisation may be considered a Secondary Employer under the Bill.

We suggest that employers watch this space as if implemented this Bill will have an impact on labour hire arrangements.

Talk to us

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