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Work visa applications for overseas employees and employment law requirements

3 September 2018

Employers should be aware of the interplay between immigration requirements and employment law requirements when recruiting from overseas. This is important given the current shortfalls in certain sectors of skilled labour in New Zealand, especially in the construction sector.

Often, there will be immigration requirements for an acceptable employee to obtain a work visa so they can work lawfully in New Zealand. For example, there are requirements that an offer of employment is sustainable, full-time, and for a certain level of remuneration.

It is important, therefore, to ensure that when recruiting staff from overseas, the immigration requirements as well as the employment law requirements are met to ensure a work visa can be obtained. When drawing up any employment agreements, an employer should keep in mind the downstream affects certain clauses may have on the eventual work visa application. Being careful can help avoid complications with Immigration New Zealand (INZ), which may mean having to provide further information and clarifications.

In our experience, the following issues may arise:
(a) Whether the proposed employee is indeed an employee: Prospective employers should try to ensure that an employment agreement can’t be construed as an agreement for an independent contractor. An independent contractor will not be granted a work visa under certain work visa categories.

(b) Whether an employment agreement complies with New Zealand employment law: Sometimes when employment agreements are drafted by the overseas employment/placement agent, the agreements will need to be re-drafted to comply with New Zealand employment law. As New Zealand employment law requirements often differ to the requirements of overseas jurisdictions from which prospective employees are applying from, the inclusion of a clause in the employment agreement stating that the laws of New Zealand apply can reduce uncertainty and potential disputes over the applicable jurisdiction.

(c) Whether the required wage or salary requirements are met under the INZ instructions for the purposes of a work visa application: There are various levels of remuneration under the Essential Skill category depending on how skilled the employment is. But under the Talent (Accredited Employer) category, there is a requirement for a minimum base salary of NZ$55,000 per annum for offers of employment. This is a base salary; so, it does not include additional benefits that an employer may offer the employee.

(d) What the duration of the employment agreement being offered is: Often, employers will try and offer an employment agreement for a fixed term to map the duration of the employment with the length of the work visa. However, fixed term employment must have genuine reasons for a fixed duration, and these should be specified in the employment agreement. For example, a genuine reason for a fixed term may be the completion of a specific construction project. Always include the genuine reason; otherwise, you leaving it out may be a contravention of section 66 of the Employment Relations Act 2000.

The above are only some of the issues that may arise. To avoid pitfalls, we advise that when you offer employment agreements to an overseas employee, it is reviewed it in conjunction with the relevant Immigration New Zealand requirements for that particular work visa.

If you would like to discuss any issues in relation to the above, please do not hesitate to contact either Kishen Kommu (09 914 3502, k...........@glaister.co.nz) or Brett Vautier (09 356 8231, b............@glaister.co.nz).