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.

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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.

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.

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 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.

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.

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.

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.

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.