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.

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.

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.

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.

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 hope you have a relaxing break during the upcoming Easter long weekend.