Companies need to know obligations

Last updated 05:00 03/01/2013

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Employers who overlook visa requirements for immigrant workers can expect to fall foul of Immigration New Zealand. Duncan Cotterill lawyers OLIVER ROBERTS and JENNIFER DAWSON, a former immigration officer, look at the issues.

With the recent increases in application fees, and a strict approach from Immigration NZ, it is more important than ever that employers know their obligations and how to support their employees in applying for work or resident visas.

What is apparent is that employers are failing to appreciate or meet requirements in the following key areas:

A new work visa or a variation of the conditions?

INZ is alert to the fact that workers often aren't complying with the conditions of their visa, and commonly their employer is not even aware of this.

So when is a new visa needed? In essence, if the nature and skills of the role change, a new work visa is required. For instance, an employee promoted to a new position must apply for a new visa.

This is because a work visa is granted on the basis that New Zealand citizens or residents aren't available to fill that specific role. If the role changes, INZ needs to ensure that there are no New Zealanders available to fill the new position.

In some situations, a variation of conditions will suffice.

The three conditions found on a work visa are the occupation, employer and region of employment. A visa holder can apply for a variation of conditions when the employer or region changes.

For example, if you move an employee from Christchurch to Auckland, but the employee holds the same position and works for the same business, a variation of conditions can be applied for.

When to advertise a position?

Many employers incorrectly believe that once recruited, an employee simply needs to get their visa renewed whenever it expires. But this is not true.

While repetitive advertising can seem to be costly and pointless, INZ seeks to ensure that a position is not given to a temporary visa holder where there is a New Zealander available to fulfil the role. So, whenever an employee has to renew their visa, the employer has to re-advertise the position, to ensure there are still no New Zealanders available.

The exception is if the position is on the Long Term Skills Shortage List or the Immediate Skills Shortage List and the employee holds the listed qualifications or work experience stipulated on the lists for that position.

What level of advertising is required, and what needs to be included?

INZ frequently sees, and is quick to pick up on, advertisements discouraging applications so as to retain the staff member already on the books.

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Employers should be careful to avoid doing the following when listing a vacancy:

Inflating the qualifications or work experience required.

Stating requirements for skills which are not truly material to the role, such as an ability to speak a certain language.

Having conditions which deter applicants, such as very low wages or long hours; the conditions should be comparable to those held by the existing employee.

Restricting the accessibility of the listing. Advertising should be both local and national; typically in major newspapers or on major job websites where it is likely to be seen. Employers should also consider listing the position with Work and Income.

Wages, deductions and allowances

Employers are required to comply with all labour laws when employing a temporary visa holder. They must also provide the same conditions that would typically be acceptable for a New Zealand citizen or resident.

Wages or salaries need to meet market rates, deductions must be agreed and recorded, and employers should note that allowances will not generally form part of INZ's assessment of the employee's salary, which will always be based on their base salary and a 40-hour week.

Job descriptions

INZ assesses whether an applicant is fulfilling a particular role by comparing duties to prescribed job descriptions found on the Australian New Zealand Standard Classification of Occupations (ANZSCO) website. Applicants must "substantially match" the job description listed on the ANZSCO.

This has created a tendency for employers to copy the job description listed on the ANZSCO and claim that as the job description of their employee, which creates concerns that it isn't a true reflection of what the employee is doing.

It is better to compare your employee's daily duties to the job descriptions on the ANZSCO, find the most appropriate occupation, and justify how the employee matches said occupation.

Understanding these factors will speed up the application process and give INZ the information they need to make an informed, and hopefully favourable, decision.

Oliver Roberts is a partner, and Jennifer Dawson a solicitor, in the Christchurch office of Duncan Cotterill Lawyers. O.roberts@DuncanCotterill.com.

Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.

- BusinessDay.co.nz

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