The interplay between immigration and employment law
description
Transcript of The interplay between immigration and employment law
The interplay between immigration and employment law
Marcus Beveridge & Rita WornerQueen City Law
May 7 2014
Overview
• Recruitment - Definition of "business purposes" for visitor visas - Main categories of work visas - Residency (Skilled Migrant Category) • Compliance - Employer obligations and best practice - Consequences/penalties for employers • Termination of employment - Personal grievance claims by migrants
Temporary Visas
Temporary Entry
VisitorWork Student Transit
Essential Skills
PartnershipTalentSpecific Purpose
Working Holiday
NZ Residency
Residency
Business /Entrepreneur
Skilled Migrant / Talent
FamilyInvestment
• Visitor visa ("business purposes“) • Essential Skills visa• Specific Purpose visa• Employer Accreditation • Residency
Recruitment
Business Purposes
• Less than 3 months in NZ• Not undertaking employment as per INZ
definition– Representatives on official trade missions– Sales representatives of overseas companies– Overseas buyers of NZ goods and services– Business consultations/negotiations involving
authorised representatives of overseas company
Essential Skills
• Job offer• Labour Market test– Advertising– Essential Skills in Demand List
• Consistency with ANZSCO
Specific Purpose
• Job offer or invitation• Evidence of relevant qualifications or
experience• Information relating to specific purpose
and length of time needed in NZ
Employer Accreditation
• Sound financial position• Human resources policies of a high
standard• Commitment to training and employing
New Zealanders• Good workplace practices
Residency
• Job or job offer• Job description consistent with ANZSCO• Claim minimum of 100 points– Age– Qualifications– Experience– Job offer
- Employer obligations and best practice - Consequences/penalties for employers
Compliance
Employer Obligations
• Always check potential employee’s immigration status
• Visaview service• Keep record of visa • Make note to check again prior to visa
expiry date
Worker Exploitation
• Bill includes the exploitation of lawful temporary migrant workers as an offence
• Why the current law insufficient: There is currently a gap in legislation whereby employers who exploit unlawful workers can face heavy sanctions, yet those who exploit lawful migrant workers face a low risk of being held to account.
• This will mean that migrants in this group are protected in the same way as unlawful migrants.
• According to anecdotal evidence from the Labour Inspectorate and Immigration New Zealand (INZ), in many cases, those who exploit migrant workers are themselves former migrants.
• Under the 2009 Act, temporary visa class holders may be deportable if they exploit migrant workers but residence class visa holders are not.
• Residence class visa holders who knowingly employ unlawful workers or exploit migrant workers within the first ten years of being granted a residence class visa are liable for deportation.
Liability for deportation
Penalties
• Section 357 Penalties: employers(1) A person convicted of an offence against section
350(1)(a) is liable to a fine not exceeding $50,000.(2) A person convicted of an offence against section
350(1)(b) is liable to a fine not exceeding $10,000.
(3) A person convicted of an offence against section 351(1) is liable to imprisonment for a term not exceeding 7 years, a fine not exceeding $100,000, or both.
Personal Grievance
Nicholas Ten Hoorn Boer v Reid Research Services Limited
[2012] NZERA Auckland 142Hulin Chen v Aaron & Coma Limited[2011] NZERA Auckland 373