(Overcoming) The Barrier of the Border – Bringing Critical Workers into New Zealand

21 August 2020

As a result of the pandemic, New Zealand businesses are struggling for lots of different reasons. For many organisations, one of the big struggles is the challenge of how to gain access to key talent currently “locked out” of New Zealand indefinitely – as a result of the closed border. Those locked out are a combination of people:

  • those that were existing employees and had left the country for business or personal reasons and then got stranded offshore by the border closure,
  • new hires that have been appointed either since the border closure or who had already secured a visa to enter but simply hadn’t managed to get on a flight yet, and
  • other related parties such as independent contractors or other business connections

…all of whom need to be physically present in New Zealand to conduct their business.

New Zealand citizens and permanent residents have a right to come home. However, to everyone else, the border is closed. There are a limited number of “slots” each day that can be utilised for arrivals into the country. Right now, almost all the daily arrival slots are taken up by New Zealand citizens or residents and their family members. There are also provisions to request an exception where there are humanitarian grounds of an exceptional and compelling nature. After that, there is capacity for a tiny trickle of others to secure an exception to enable them to enter, despite the closed border.

The number of daily arrivals is largely dictated by two factors: balancing the national interest of protecting public health with our actual capacity to effectively quarantine arrivals. Right now, the demand for entry grossly exceeds capacity and most likely will do so for some time to come.

So, who do these elusive arrival “slots” go to and how can a business secure one (or more) for people that are outside New Zealand but are needed here, physically, on the ground for business-critical reasons?

In mid-June, the Government announced a new category of exception, the ‘other critical worker’ exception, whereby an employer can make a request for an exception on behalf of a worker.

view article on ‘critical worker’ policy

The requirements to be met to secure an exception have been covered at length in previous articles. Since its introduction, Lane Neave has worked with a number of organisations to support them in making applications for an exception and now, two months on from the introduction of the new category, we can reflect on what we know about the category and the approach adopted by those determining who is “in” and who has to stay “out”.

The Bar is Extremely High

The bar for securing one of these few exceptions is very high and there is a high decline rate. An area of the policy where we see this come in to play, is in relation to demonstrating the requirement that the person has “unique experience and technical or specialist skills that are not obtainable in New Zealand”. INZ’s application of this policy criteria, is strict and inflexible. It needs to be demonstrated to INZ’s satisfaction that it is not possible to continue to perform the role remotely, redeploy an existing staff member or make other arrangements to account for the person not being physically present. INZ will also consider the concept of ‘interchangeability’ when determining requests made on this basis.

If INZ forms the view that there would be another way for the employer to access that skillset in New Zealand, in-house or otherwise, then they will not consider the criteria to have been met. For example, if the critical role is one that may appear to INZ to be “generic”, they will take the view that the New Zealand company should be able to outsource that role to another provider in New Zealand. We have seen them take this approach in relation to very senior corporate roles, such as financial and general management roles, where INZ considers that there is someone, somewhere, in New Zealand with those skills, or the employer could contract the work out to a specialist firm such as a consultancy or Big-4 accounting firm.

This approach is simplistic and gives no recognition to the nuances between different industry sectors and the specialist skills and experience specific to certain industry sectors that may be essential to successfully performing, what may appear to be, a “generic” role.

No Discretion to Consider Broader Factors

One thing that is abundantly clear is: the fact that a particular person being able to enter New Zealand may be “business-critical” to a particular employer, is not a factor that INZ is willing to consider.

This has been a clear trend in the decision-making we have seen to date. This approach is very disappointing, particularly in cases where the companies seeking to bring people in are some of New Zealand’s largest and most respected employers, who are best able to judge who are the critical talents that they need in New Zealand to be able to maintain their operations and continue to sustain many thousands of New Zealand jobs, and in some instances, actually create employment.

The current policy allows INZ no discretion to take these types of employer-specific factors into account. The consequences of such a rigid policy, that is disconnected from the commercial realities of successfully running a business, are likely to have a direct negative impact on those companies who have had their requests declined and, consequently, long-term knock-on effects for the economy more broadly.

“Technical” Skills and World-Leading Research

On the flip side, we have seen instances where seemingly much lower-ranked roles have been successful in securing exceptions. One scenario, indicated as an example in the policy, is that of vendor-appointed installers required to install or commission a piece of equipment.

Other cases that have successfully secured exceptions include examples of academics and research scientists engaged in research and development projects that are world-leading in their field.

If it can be established that there are only a handful of individuals world-wide with a particular skillset, even at lower levels of seniority within an organisation, an exception may be granted. It seems to us, demonstrating technical skill is far “safer” for approval than more soft business/investment-focused skills, even in some instances where it is clear to us there would be a far greater positive net impact for New Zealand to allow entry for some of those people.

Policy Clarification on ‘other critical workers’

Just last week INZ released a policy update which included further explanatory notes and clarification of matters in the policy, including details of the factors that will be considered when determining whether a person is an ‘other critical worker’.

‘Time critical’ has been defined to include the situation where, if the person does not come to New Zealand the project, work or event will cease or be severely compromised, or significant costs will be incurred. Although this is helpful, it will not always be possible for an employer to specifically point to how a project may be compromised or to quantify costs that will be incurred, as INZ seems to require.

Skills that are ‘unobtainable’ in New Zealand has also been further clarified. Skills will not be considered unobtainable if they are available in New Zealand but not to the employer or supporting agency, or are available but are developed to a particularly high standard in the worker.

Again, this definition appears out of touch with commercial reality and encourages a “rob Peter to pay Paul” approach that is counter-productive and does not resolve the broader issue of a key talent gap. We have already seen poaching of this nature starting to happen in the market and INZ’s approach in this regard, together with the prolonged inability to bring in talent from offshore, will mean that more companies will look to poach senior and specialist staff from other companies as a way of resolving this issue. This type of forced behaviour will not serve the particular sectors well and will do nothing to assist the greater economic recovery that really should be the focus of attention.

A Loosening of the Policy

Two weeks ago, the Prime Minister confirmed that the Government is looking at loosening the rules in this area and perhaps looking at reshuffling the priorities slightly between New Zealand citizens/residents and their families and those coming on economic grounds. We have been advocating this (economic support and recovery) approach for months. This would not prevent New Zealand citizens/residents from returning, but would perhaps alter the ratio of arrivals to allow these much-needed lifelines of talent to enter New Zealand, particularly in situations where, although they may not have a world-leading skill, their presence here will actually create or sustain Kiwi jobs.

From speaking to numerous New Zealand businesses that are doing the best they can to ‘make do’, it is clear that this loosening is desperately needed and, if it doesn’t come soon, will result in more businesses failing, adding to the already long tail of economic recovery we now face. The high decline rate for these exception requests means that some requests, that may fall just short of the policy criteria, but are nonetheless very credible and genuine, have been and will continue to be declined.

The health of New Zealanders and those who harbour on our shores, must be paramount. However, it is our view that it is possible to maintain public safety whilst also easing the current policy to allow more key talent to secure an exception and make use of some of the limited number of daily arrival slots at the border – which will be an absolute lifeline to New Zealand businesses.

Next Steps

Our team has successfully worked with a number of companies supporting other critical worker exception requests across a range of the different policy grounds and have a thorough understanding of this new and developing policy. These approaches require strategic thinking and simply filling out the new basic online form, is not going to cut it.

We are keeping a close eye on developments in this space and will continue to share articles and updates as soon as any major policy announcements are made.

Contact us today to speak to one of our experts about how to go about making an exception request and to get an opinion on whether you are likely to be able to secure one.

contact us

contact

Mark WilliamsMark Williams
Partner, Lane Neave

t +64 3 353 1063
m +64 21 222 2363
e mark.williams@laneneave.co.nz

Rachael MasonRachael Mason
Partner, Lane Neave

t +64 3 372 6323
m +64 21 1306 540
e rachael.mason@laneneave.co.nz

Daniel KrugerDaniel Kruger
Partner, Lane Neave

t +64 9 300 6262
m +64 27 517 4828
e daniel.kruger@laneneave.co.nz

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