Christy Hoebers - Copeland Ashcroft

Immigration New Zealand (INZ) released several updates on work and resident visas in recent months, per the below timeline:

1 July 2023
Upgrades to the NZ/UK Working Holiday Scheme took effect. See article

16 August 2023
Selections of Expression of Interest (EOI) for the “old” system of Skilled Migrant Category (SMC) Resident Visa will close.

We can do a preliminary assessment against selection points and provide guidance on the best pathway to residency. See article

29 September 2023
Worker’s occupations on Tier 2 of the Green List may be eligible for residency after working for 24 months.

The requirements on the Green List for some occupations are not straightforward, and we can provide guidance on assessment against these.

9 October 2023
New settings of SMC Resident Visa will take effect.

We can guide you through all aspects of this application.

November 2023
The maximum duration of an Accredited Employer work visa (AEWV) will be extended to five years.

If you are not sure which type of visa suits you please talk to us. We will find the best option for you.

2024
All employers hiring migrant workers must be accredited – including those on visas other than AEWV.

We can assist you and your business in any work-related applications and immigration matters, including securing accreditation.

Message for Employers

If you and your employees have any queries in relation to temporary and/or resident visa applications or have issues of medical and/or character issues, please feel free to contact us.

Disclaimer: We remind you that while this article provides commentary on employment law, health and safety and immigration topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.

In a further case exploring the expanding definition of “work”, the Employment Relations Authority has concluded in Association of Professionals and Executive Employees Inc v Secretary for Education [2023] NZERA 167 that intern psychologists who undertook 40 week practicum placements required as part of their training, in exchange for a scholarship of $25,000, were actually employees.

The Association of Professional and Executive Employees Inc (APEX) successfully argued the case, including on the basis that the work done was covered by a Collective Agreement (CA) it was party to with the Ministry of Education (Ministry). The CA listed ‘Intern psychologist’ as one of the 13 occupational groups of Ministry field staff covered by its terms.

The Ministry denied the existence of an employment relationship, arguing the practicum arrangement enabled the students to complete their course requirements to gain professional registration as psychologists.

In considering whether the arrangements for the practicum and the work the interns were required to complete met the test for employment, the Authority concluded that:

The Ministry placed constraints on interns as they were required to carry out assigned casework and report on this to their supervisor and could not do as they pleased when conducting interviews or writing reports, nor were they simply observing this work.
There was no fundamental difference between the work undertaken by interns on a scholarship and paid interns under the CA.
The economic benefit to the Ministry of the work may not be immediate; however, the “operational benefit” of developing interns’ necessary skills meant they were performing work for the Ministry and contributing to its business.
The work undertaken by the interns was for “reward”. The concept of reward extended beyond the monetary value of the scholarship and considered the supervision that enabled the interns to complete their training, and the prospect of employment by the Ministry following completion of their course amounted to a reward.

The Authority added, “Concluding that intern psychologists are employees as well as students completing their studies may disrupt assumptions that have operated about those practicum arrangements for some time. It is, however, consistent with the direction of travel apparent in many employment law cases in recent years where assumptions about what is work, what is employment and what is worth have been unpicked and overturned”.

The intern employee here was awarded salary arrears (minus scholarship payment), KiwiSaver contributions, and holiday pay.

Message for Employers

We will continue to monitor the progress of this case, including whether the Ministry challenges this decision. The case potentially has broader implications for employers in how they make arrangements for interns, including those undertaking a practicum as part of their studies.

If you use unpaid interns, we recommend reviewing your arrangements.

The Employment Court’s decision in the Uber case, holding that drivers were employees and not contractors, will proceed to the Court of Appeal after leave was granted recently, on the following questions of law:

a) Did the Employment Court err by misdirecting itself on the application of section 6 (the meaning of “employee”) of the Employment Relations Act 2000?

b) Did the Employment Court err by misapplying the test in section 6, or in the alternative, was the Court’s conclusion so insupportable as to amount to an error of law?

c) Did the Employment Court err in finding that joint employment may arise in New Zealand simply as a result of a number of entities being sufficiently connected and exercising common control over an employee?

The Court acknowledged that the declaration will related to the individual drivers that are seeking the declaration, however the decision will have broader impact for other drivers where there is an apparent uniformity in the way in which the business operate and the framework in which the drivers are engaged.

Message for Employers

We will keep you updated on the appeal progression. No date for hearing has been set yet.

In the interim, we recommend reviewing contractor arrangements to ensure these are appropriate in light of the line of cases where contractors successfully challenge the relationship and are held to be employees.

Immigration New Zealand (INZ) released several updates on work visas and announced it will carry out more reviews on Accredited Employer Work Visas (AEWV) due to recent reports on migrant exploitation and fraudulent activities.

Recognised Seasonal Employer (RSE)

INZ released an amendment that from 1 October 2023, RSE workers:

Must be paid the minimum wage plus 10%, i.e. $24.97 currently, including for visas granted prior to this date.
Will receive a new sick leave entitlement giving them paid sick leave from their first day on the job, and 10 days of paid sick leave in total.

AEWV

The maximum duration of an AEWV will be extended to five years from 27 November 2023, after which the holder must leave NZ (unless on a recognised pathway to residence) for 12 months, if they are paid at or above median wage, and for the duration provided by INZ in the relevant Sector Agreement otherwise.

We suggest AEWV holders do a preliminary assessment for eligibility for residence early, in case they are not eligible and have to leave NZ.

Media report the Public Service Commission will review the AEWV scheme’s processes after a whistleblower’s allegations.

INZ also announced their compliance team will investigate more accredited employers after several reported migrant exploitation.

Clarification on the Green List

INZ released an amendment on 18 August 2023 regarding several changes and clarifications under the Green List Straight to Residence (STR) and Work to Residence (WTR).

If your employees may be eligible for the STR or WTR please contact us to do a preliminary assessment before they submit their applications. We can check whether they meet the requirements and/or identify the potential risks in advance.

Message for Employers

If you are unsure whether your policies and agreements are compliant with relevant employment and immigration laws, please feel free to reach out to us. We can review and provide you a practical solution in advance.

Recently a Health and Safety Officer of a marine industrial engineering company was sentenced to nine months in prison follow a guilty plea to a charge of making a false statement.

The company was subject to a WorkSafe investigation relating to an incident that occurred where an employee suffered a long-term brain injury. This was sustained as a resulted of the employee being exposed to toxic fumes in the hull of the boat whilst cleaning the engine. The week prior a similar incident had been recorded, which the Health and Safety Officer had documented as an incident report. The Health and Safety Officer then advised WorkSafe during its investigation that he was not aware of any previous incidents. He later admitted this was false. The Court here commented on his dereliction of duties and set out the need to follow health and safety regulations, noting that those with obligations under health, work and safety legislation must get the message that this is serious, and such failure has consequences.

Message for Employers

Co-operation with WorkSafe during any investigation is imperative and all PCBUs and its workers should co-operate openly and honestly, with the benefit of advice and representation to provide protection and the best strategy for defence. Where faced with a WorkSafe investigation, we recommend seeking legal advice as soon as possible around how best to engage.

On 11 August 2023, the Government announced its commitment to closing the pay gap for Kiwi women by introducing mandatory gender pay gap reporting in Aotearoa.

What is the gender pay gap?

In 2021, the Ministry for Women reported that the gender pay gap was 9.2%. The gender pay gap compares the hourly earnings of men and women in full-time and part-time work.

Why is there a gender pay gap?

According to a Report released by the Ministry for Women in 2017, 20% of the gender pay gap can be explained by occupational, vertical, segregation and patterns of participation. The remaining 80% is ‘unexplained’.

What does this mean for employers?

Within four years, it is expected that the legislation will require companies with over 100 employees to report on their gender pay gap. This will form part of other Government initiatives that have been introduced to address pay equity, such as the Fair Pay Agreements, amending the Equal Pay Act in 2020 and Kia Toipoto for public services.

We wrote about the Parental Leave and Employment Protection Amendment Bill in July 2023, and this did not pass its first reading on 1 August 2023 so will not progress.

Message for Employers

Both Labour and National have rolled out new policies on parental leave ahead of the election.

From Tuesday 15 August 2023, the Government removed all remaining COVID-19 public health requirements.

This includes:

Seven day mandatory isolation for people who contract COVID-19; and
The requirement to wear a face mask for visitors to healthcare facilities.

Subsequently, the COVID-19 Leave Support Scheme ended on 15 August 2023.. Moving forward, if an employee has COVID-19, time away from work should be treated as sick leave.

Message for Employers

If you have any questions about the impact the removal of the COVID-19 requirements has on your workplace, please get in touch with a member of our team.

Join us at our next two hour workshop on Managing Leave, Incapacity and Absenteeism. If you are unable to make an in person event, join us on our webinar.

We will cover:

A case law update on absence and leave issues;
Advice on how to manage leave entitlements, absences and absenteeism in your workplace;
Your obligations as an employer in relation to incapacity issues;
Practical tips for creating and navigating return to work programmes, including where absences have been due to mental health issues; and
Workplace wellness and health and safety obligations.

You can register your attendance at the below listed Copeland Ashcroft locations by clicking on the link:

Auckland – Monday 4 September -10.00am – midday – COMPLETED
Tauranga – Thursday 14 September -10.00am – midday – COMPLETED
Rotorua – Thursday 28 September – 10.00am – midday – COMPLETED
Hastings – Thursday 14 September -10.00am – midday – COMPLETED
Dunedin – Thursday 14 September -10.00am – midday – COMPLETED
Queenstown – Friday 6 October – 12.00-2.00pm – COMPLETED
Invercargill – Monday 4 September -10.00am – midday – COMPLETED
Webinar – Thursday 21 September – 10.00am – midday – COMPLETED

Cost
$250.00 plus GST

Please feel free to pass this invitation on to others who may be interested in attending. We look forward to seeing you there.

Immigration New Zealand (INZ) has made changes in relation to providing information that is false, misleading or incomplete in visa and Expression of Interest (EOI) applications which take effect on 25 September 2023.

Strict Obligation

INZ states applicants have a strict obligation to truthfully inform INZ of all material facts, including circumstance changes. In other words, INZ can decline applications containing false, misleading and withheld information no matter whether the applicants or their agents submit it intentionally or not, and this can lead to consideration of character waivers for future applications, which is a complex process requiring advice.

Message for Employers

Employers should be aware that where they pass job tokens to proposed employees directly and do not know what is provided to INZ by them, this may increase the risk of false, incomplete or withheld information with the consequences above.

Therefore, we suggest employers contact us to review an employee’s visa application before submission. Otherwise, a piece of incorrect information may cause a delay in approval or decline directly.