{"id":5448,"date":"2024-01-31T17:34:45","date_gmt":"2024-01-31T04:34:45","guid":{"rendered":"https:\/\/www.pittandmoore.co.nz\/?post_type=publications&p=5448"},"modified":"2024-02-01T07:43:52","modified_gmt":"2024-01-31T18:43:52","slug":"tightrope-act-of-complying-with-immigration-and-employment-law-obligations-for-employers-of-migrant-workers","status":"publish","type":"publications","link":"https:\/\/www.pittandmoore.co.nz\/publications\/tightrope-act-of-complying-with-immigration-and-employment-law-obligations-for-employers-of-migrant-workers\/","title":{"rendered":"Tightrope Act of Complying with Immigration and Employment Law Obligations for Employers of Migrant Workers"},"content":{"rendered":"\n

by Heather Collins<\/strong><\/p>\n\n\n\n

1 February 2024<\/strong><\/p>\n\n\n\n

There has been a significant focus on migrant workers in New Zealand over the past year. As we have previously highlighted<\/a>, a number of changes have come into force to better protect migrant workers, and prevent and deter exploitation by employers.<\/p>\n\n\n\n

These legislative changes expose businesses employing migrant workers to more severe penalties for exploitation and may also result in more scrutiny of businesses who hire migrants.<\/p>\n\n\n\n

For this reason, now more than ever is an ideal time for business owners to pause and re-examine their practices, to ensure that they are meeting both their employment and immigration obligations.<\/p>\n\n\n\n

In our experience one of the biggest stumbling blocks for employers is which process to follow when a migrant worker no longer holds a visa. In this article we outline some general best-practice recommendations for employers to consider when it comes to improving practices and reducing risk of non-compliance.<\/p>\n\n\n\n

What are an employer\u2019s obligations when a migrant worker\u2019s visa expires?<\/strong><\/h3>\n\n\n\n

Once a migrant worker\u2019s visa expires, unless they have been granted an interim visa with conditions which allow them to work for their employer, they cannot perform any duties for their employer, and they are generally not permitted to remain in New Zealand.<\/p>\n\n\n\n

Employers of migrant workers must not only adhere to their obligations under the Immigration Act 2009 but also to the requirements of Employment Relations Act 2000 and other employment related legislation<\/a> relevant to employment relationships.  If a migrant worker\u2019s visa expires, employers have an obligation to ensure that the worker isn\u2019t completing any duties, as the employer could then be sanctioned for allowing someone to work without a valid visa. There are steep penalties<\/a> for hiring or allowing someone to work who is not entitled to.<\/p>\n\n\n\n

Often in this scenario, the employer\u2019s focus shifts to removing the unlawful employee from the business as quickly as possible.  However, where an employment agreement is in force, the migrant worker is still an employee. This means that while the migrant worker is not allowed to perform duties, they are still afforded all the same rights and protections as any other employee, irrespective of their visa status. <\/p>\n\n\n\n

The employer remains obligated to follow a \u2018fair and reasonable\u2019 process<\/a> and act in good faith. In practice this means that an employer cannot simply terminate the migrant worker\u2019s employment without due process simply because the migrant worker no longer holds a visa.  Doing so will likely result in the migrant having grounds to raise a personal grievance.<\/p>\n\n\n\n

What is the best practice for an employer in this situation?<\/strong><\/h3>\n\n\n\n

Unfortunately, there is no clear, established law on a particular process to be followed. But, in general, Pitt & Moore advises against <\/em>automatically terminating a migrant worker\u2019s employment or standing a migrant worker down without pay without their agreement when they would be otherwise willing and able to work, as this could be deemed an illegal suspension.<\/p>\n\n\n\n

If there is nothing specified in an existing employment agreement about how to address this issue, the best practice is to reach an agreement with the migrant worker. This could be an agreement for the migrant worker to take the remainder of their annual leave, or if there is no leave available, to take unpaid leave until they are granted a valid work visa. If the migrant worker is unwilling to take unpaid leave, the employer could consider extending special paid leave for a finite period, to ensure the migrant worker is not disadvantaged.<\/p>\n\n\n\n

Set up clear expectations in an employment agreement<\/strong><\/h3>\n\n\n\n

For employers looking to review and update their existing employment agreements, it can be helpful to have clauses that:<\/p>\n\n\n\n