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

By Lavinia Askin

17 October 2023

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

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

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

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

This change will come into effect on 29 October 2023.

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

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

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

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

There is no getting around the rule change:

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

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

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

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

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

Change is on the way for ‘triangular employers’

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

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

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

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

Are your governance and compliance risk standards up to scratch?

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

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

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

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

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

Disclaimer: The information contained in this publication is of a general nature and is not intended as legal advice. It is important that you seek legal advice that is specific to your circumstances.