Immigration Adviser Newsletter

Contact Marty Logan – March 2021

In our March 2021 issue, we cover the implications of lockdown on minimum wage payments, code of conduct issues, and ‘rubber stamping’ practices among other highlights from the last quarter.

A COVID-Shaped World

The rolling out of COVID-19 vaccines to frontline workers represents a step forward towards reaching freedom from border restrictions and an easing of stresses in the immigration space.
Those stresses include the uncertainty surrounding the introduction of a new work visa framework as well as delays with allocations of residence applications, particularly those related to employment in New Zealand. Add to this the lack of transparency of the Managed Isolation system, and our clients in the immigration advisory space certainly have had their fair share of battles recently. This has highlighted the importance of careful management of client expectations, and the need to provide clear and accurate advice. If you’re in any doubt, or need assistance with a client’s case, then please reach out to me or any of our Immigration team members at Pitt & Moore.
Having said this, some processes are still moving forward. At the beginning of February, INZ announced that New Zealand’s Refugee Quota Programme would resume with small groups of refugee families arriving for resettlement as part of our country’s international humanitarian commitments. The first group of 35 refugees arrived in February, and after the required 14-day stay in managed isolation will be transferred to Te Āhuru Mōwai o Aotearoa (the Māngere Refugee Resettlement Centre) and eventually transferred to planned settlement locations across the country.
Like you, we are waiting with bated breath for Immigration NZ’s announcements relating to the Skilled Migrant Category, compulsory Employer Accreditation and new work visa framework.
Going forward, if you have any suggestions as to what you’d like to see reaching your inboxes with each newsletter, then please reach out to us via this dedicated mailbox – immigration@pittandmoore.co.nz. We’d love to hear your feedback, comments, queries, and suggestions as to how we can best help Immigration Advisers.
Marty Logan

From the Tribunal: NMS v Mercado [2020] NZIACDT 51

In each newsletter we will be looking at a recent decision of the Immigration Advisers Complaints and Disciplinary Tribunal, or any associated Court decisions, to highlight any learnings or warnings for advisers.
In this issue, we review a ruling of the Tribunal which involved an adviser, who advised a client that her work visa as a PA for a company director meant she was able to also work in a managerial-stocktaking role for a café that was owned by the same company. This decision reinforces the need for advisers to be conscious of seeking appropriate specialist advice when complex issues or novel or complicated arrangements are proposed in employment settings.
If you are ever uncertain as to how to handle a particular immigration matter, or need advice to help resolve a complaint or conflict with a client, then please reach out to us.

Code of Conduct: Conflicts of interest

We take time to consider the importance of understanding the principles of good faith and the duty advisers owe to their clients – above all other interests.
It’s critical to ask yourself from the outset of any client relationship two questions: To whom am I providing immigration advice? And to whom do I owe duties of loyalty and confidentiality? Together, these questions are your litmus test.
‘Conflicts of interest’ emerge where there are competing interests and duties between the adviser and visa applicant client, and the applicant and third parties (e.g. a supporting partner, or a New Zealand employer). For example, we’ve seen the common and avoidable scenario of a conflict between advisers and applicants where the visa applicant client, is unwilling to disclose certain information to INZ as part of their responses on the applicable INZ application form. Advisers have a ethical obligation not to submit false or misleading information to INZ. Hence, in instances where you are aware that your client is not being truthful with their responses, you need to raise this with your client and explain that you may not be able to continue to act on their behalf if false or misleading information was going to be submitted to INZ.
Conflicts do occur – but that needn’t be the end of a relationship in every scenario. As Clause 6 of the Immigration Adviser Code of Conduct (2014) explains, an adviser can proceed – but only when the client has given written consent that they understand the potential or actual conflicts of interest. Even where consent is obtained, we recommend that you use caution and if in doubt get professional advice. This is an ongoing obligation – if the adviser’s situation changes, the client must be informed. This is often where advisers get tripped up.
Of course, limits to all codes exist. If the adviser’s objectivity or the relationship of confidence, trust, and confidentiality would be compromised, an adviser cannot continue to represent their client. Again, this is a common enough place for advisers to lose their footing.
Our advice? Learn to recognise the potential for conflict – and have robust safeguards and risk management processes in place, such as tailored conflict clauses in written service agreements.
We have extensive experience in this field, and can assist with reviewing and preparing written service agreements, and drafting special clauses to address specific circumstances. And if you’re ever in doubt as to how to handle a particular conflict or potential conflict scenario, seek legal advice early.

From the Courts: Gate Gourmet New Zealand v Sandhu, and the implications for minimum wage payments during lockdown

The Employment Court has recently released the decision of a landmark case, determining that employees who did not perform work during COVID-19 lockdowns were not entitled to minimum wage for their contractually guaranteed hours.
Gate Gourmet was classified as an essential business during Level 4 lockdown, but as an in-flight caterer, had little work to offer its employees to fulfil 40 guaranteed hours per week of work. As such, they implemented a partial closedown and offered 80% pay with assistance from the Government’s wage subsidy scheme.
The Employment Court affirmed that the Minimum Wage Act (MWA) ensures a base wage for work and/or hours performed, rather than guaranteeing a minimum income to employees (as the Union argued). Thus, even if employees are willing and able to work, the employer isn’t required to pay them unless they are actually working.
What does this mean for NZ employers?
Employers’ payment obligations are now clearer, especially in the event of further Level 3 or 4 lockdowns (such as we’ve seen recently in the Auckland region). It should be noted, however, that each employment agreement will contain different obligations and rights, so obtaining legal advice on any employment case is critical. Be sure to reach out to us at Pitt & Moore if you have any questions or concerns about your clients’ positions, especially as we anticipate additional lockdowns.

News & Articles that matter

In each newsletter we’ll mention some of the other critical news and articles that has been affecting our industry lately.

Tribunal Chair urges harsher penalties for ‘rubber stamping’ advisers

Immigration Advisers Complaints and Disciplinary Tribunal Chair David Plunkett has suggested a stiffer sanctions regime in order to deter illegal practices by advisers. In the overview to the Tribunal’s annual report to the Ministers of Justice and Immigration for the year to 30 June 2020, Mr Plunkett has condemned the “unfortunate pattern” of serious misconduct such as when advisers use unlicensed agents – often overseas – to recruit clients and prepare visa applications on their behalf.
The maximum financial penalty is currently $10,000, and prohibition of renewal of a cancelled licence for two years; Mr Plunkett has urged stronger sanctions, including more transparent holding to account of agents by listing them on the Immigration Advisers Authority website. In this way, consumers can be better informed about the advisers they are considering.
Advisers should continue to watch this space closely – and seek expert support if you need support and guidance on any immigration matter.

Lessons For Employers From A Visa Applicant’s Unfair Termination

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. In this article our employment law expert Nick Mason sets out important take away points for New Zealand employers who employ migrant workers as a result of a recent Employment Relations Authority decision in Dilshaad Gill v Restaurant Brands Limited [2021] NZERA 61. Read more here.

Compulsory Employer Accreditation 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. With those proposals finalised and due to be implemented later in 2021, work visa applications will be via a new employer-led framework which consists of three gateways, and which sees the scrapping of six temporary work visa categories. Read more here.

From our office

Having come off a restful and productive New Year’s break, January and February have set a strong pace for the rest of 2021.
We recently welcomed in the Chinese New Year and marked the transition to the Year of the Ox. A highly valued animal, the ox represents studious hard work, honesty and logic – all excellent traits to see in immigration advisors and across the legal space!
We also welcomed in new staff members to the wider Pitt & Moore team. The first is Claire Broad, an experienced Commercial and Property lawyer who joined us at the end of 2020 after working as a Senior Solicitor in Auckland. Claire is also conversationally fluent in Japanese.
The Senior Law team also celebrated three new additions in Emma Marshall, Catherine Taylor and Tracy Hyde, who have extensive experience advising on Wills, Estates and Trusts.
We hope you have a relaxing break during the upcoming Easter long weekend.