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On Sunday 7 April 2024, Immigration New Zealand (INZ) made a range of significant changes to the Accredited Employer Work Visa (AEWV) scheme that are effective immediately and are a must read. The changes are possibly the biggest changes in the immigration compliance space since the opening of the AEWV scheme.

Employers

We have summarized our understanding of the key changes that employers should be aware of below:

Activation of INZ’s ability to raise infringement offences

Initially INZ had indicated that infringement offences would only be raised after regulations to support the Migrant Worker Protection (Migrant and Other Employees) Act 2023 are online. These regulations are now scheduled to come online from 11 April 2024.

In summary the new regulation:

• Activates the ability of MBIE and INZ to raise infringement offences from 11 April 2024 for all employers (including those that are not accredited) that:
  • Allow a person who is not entitled under the Immigration Act to work in the employer’s service to do that work.
  • Employ a person in a manner that is inconsistent with a work-related condition of that person’s visa.
  • Fail to comply with a requirement to supply documents within 10 working days.
• Provides a complete defense against proceedings for an alleged infringement offence is if the infringement fee has been paid in full to MBIE in the manner specified. Late payment or payment made in any other manner is not a defence. It is not clear if this defence will nullify a 6 month stand down period (for each notice), however it appears that the defence does not nullify stand down policy.
• Provides mechanisms for denying liability, late payment, the serving of a notice of hearing and dispute of penalty quantum.

Expanded ability to suspend accreditation

INZ have expanded ability to suspend accreditation where there is evidence of potential non-compliance with any of the accreditation requirements including any of the new requirements introduced.

Employer requirement: Ensure that workers meet the minimum skills threshold and are suitably qualified

Accredited employers will need to keep accurate and complete records confirming that when assigning a job token for a worker to work in a:

• Role that meets Green List requirements, the employer should make sure that there is a record confirming that Green List requirements are met.
• Role that pays twice the median wage or higher, the employer will need to take reasonable steps to ensure that a person is suitably qualified to do the job offered. This should ideally include satisfaction of one of the following:
  • Requiring a practical test; or
  • Requiring the person to demonstrate their knowledge through a job interview; or
  •  sighting evidence that the person holds required occupational registration for the job offered.
• Role that does not meet Green List requirements or pay twice median wage, that reasonable steps have been taken to ensure the person meets the minimum skills threshold. This can be satisfied by completion of one of the following:
  • Sighting evidence of relevant work experience from a third party e.g. a work reference letter; or
  • Sighting a bachelor’s or higher qualification certificate, noting qualification type and awarding institution; or
  • Sighting a relevant qualification certificate that they reasonably believe to be at least NZQCF Level 4.
• It is also helpful if reasonable steps are taken by the employer to ensure that a person is suitably qualified to do the job offered.

Employers should complete a review and update their records if an appointment requires a worker to be assigned a job check token. Failure to provide accurate and complete records when assigning a job token when requested by INZ or failing to meet any accreditation requirements will negatively detriment’s an employer’s ability to maintain accreditation status.

Higher labour market threshold and additional requirements

If a Job Check application has not yet been submitted, employers will need to abide by additional labour market test requirements if INZ assesses that a role substantially matches a ANZSCO skill level 4 or 5 role. The additional labour market test requirements include:

• Advertising or listing a role with Work and Income; and
• An increased advertising period of 21 days; and
• A requirement to provide reasons to explain why New Zealand candidate(s) who applied for the role were not suitable or available.

If a Job Check application has been approved or submitted before 6 June 2024, additional labour market test requirements are unlikely to apply however workers will need to  meet additional requirements.

New requirement to communicate AEWV exits to INZ within 10 working days

In addition to requirements to communicate any changes to their key persons, compliance with these instructions or business structure, employers will need to notify INZ within 10 working days where an AEWV holder’s employment ends and there is more than one month between the date the AEWV holder’s employment ended and the expiry of their AEWV.

New condition added to AEWVs granted on applications submitted after 7 April 2024

AEWVs granted on applications submitted after 7 April 2024 will have a new requirement for employers to provide at least 30 hours per week. This opens the pathway for infringement offences to be raised against employers where a AEWV holder is found to be working less than 30 hours per week and for employer accreditation to be revoked or suspended.

Franchisee accreditation scheduled to close late 2024

INZ have announced that the franchisee accreditation category will close in late 2024. Franchisee employers will have a option to apply for standard, high-volume, or triangular employment accreditation based on the policy in effect at the time. It is likely that there will be changes to accommodate for this change.

Migrant workers

We have summarised our understanding of the key changes that migrant workers should be aware of below:

Minimum skills threshold and English requirement

Migrant workers should check if they can meet the new minimum skills threshold and new English language requirement before a AEWV application is submitted.

All migrant workers that submit an AEWV application after 6 April 2024 to work in a non-Green List role, or a role that does not pay twice the median rate, will need to meet new requirements (even if a Job Check application does not set these requirements):

• Minimum skills threshold: The minimum skills threshold requirement can be satisfied by providing evidence that confirms that:
  •  A worker has at least 3 years of relevant work experience in the same field or industry as the offered role. Documented by third party evidence; or
  • A relevant NZQF level 4 qualification; or
  • Any bachelor’s or higher level qualification.
• English language requirement: If the role offered is assessed as being substantially similar to a ANZSCO Skill level 4 or 5 role, a AEWV applicant will need to provide evidence that confirms that:
  • The applicant has obtained an overall IELTS score of 4 or more, or an equivalent minimum score from another acceptable test; or
  • The applicant holds:
    • citizenship with Canada, Ireland, UK or USA and has spent at least five years in work or education in one of these countries or New Zealand or Australia; or
    • a qualification comparable to a New Zealand level 7 bachelors qualification gained or qualification comparable to a level 8 or higher New Zealand qualification gained from, Canada, Ireland, the United Kingdom, Australia or New Zealand.

Shorter AEWVs for employees in ANZSCO skill level 4 and 5 roles

Migrant workers that submit their first AEWV application after 7 April 2024 to work in a role that is ANZSCO Skill Level 4 or 5, and the role is not part of a sector agreement or does not pay at least 1.5x median rate will be subject to a maximum continuous stay period of 3 years (instead of 5 years) and will only be granted AEWVs valid for up to 2 years at a time (until the maximum continuous stay policy triggers) .

Green List

INZ have added nine ANZSCO occupations to the Green List, replaced the occupation Operating Theatre Technician with Sterilisation Technician, and added Certificate of Fitness (CoF) vehicle inspector as an optional skill requirement for Motor Mechanic, Motorcycle Mechanic, and Diesel Motor Mechanic.

Our immigration team can step in at all stages and assist with all types of immigration matters including accreditation applications and issues, compliance issues including where an infringement notice is raised, and also temporary and resident visa applications.

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.