Relaxation of visa conditions for all workers delivering essential services

Immigration New Zealand (INZ) has made the long-awaited announcement on temporary visa variations to assist some temporary visa holders and their employers to better respond to the needs of the country under Alert Levels 3 and 4.  These changes take effect from today (Thursday 16 April) and only apply to those employees who hold existing work or student visas and are employed in essential services.

Effective immediately, while New Zealand is at either Alert Level 3 or 4 and for six weeks afterwards, migrants holding work visas for companies delivering essential services can have their hours varied and be redeployed to other roles within their current workplaces.  In addition, they can also look to undertake their current role in different workplaces to help essential businesses continue operating.

International student visa holders who are currently undertaking employment in an essential service role are also now able to apply to work longer hours (in excess of the maximum 20 hours per week normally permitted), although they must still meet their study requirements.

All variations made must still be compliant with New Zealand employment law and the individual or collective employment agreement relevant to the employee.

On an important practical note, INZ have advised that while these changes are effective immediately they are still working on the special form that is required so hope to be able to release that soon. This was not part of the main release which if read in the absence of the FAQ section allows the reader to simply assume the employment can now be varied without INZ consent.  The existence of a new form they are working on for these variations suggests that a formal application to vary is actually still required, not just an open invitation to vary without making an application.  This would make sense as it would stop people varying conditions outside essential services and later advising that they simply misunderstood the policy as an excuse.  A form mitigates the risk of that type of behaviour. More certainty to follow upon release of that new form; hopefully tomorrow.

Limited extent of relief

Our earlier views around the short phase of the relaxed visa conditions were correct.  However, INZ have not accounted for other migrant employees currently undertaking work in non essential services who have had the terms and conditions of their employment varied. This is fairly harsh to those thousands of migrant work visa holders and their employers who have no official relaxation of the rules. These employees and their employers are required to continue to meet their current visa conditions.  If not, this could provide a valid reason for INZ to revoke that visa or decline an extension of that visa due to an identified breach of conditions.  Similarly, by continuing to employ these migrant workers in roles that do not match the roles for which the visa was granted, employers are in technical breach of NZ immigration law, by effectively employing that employee illegally.

We believe INZ will ask for an IRD Statement of Earnings and employer wage/time records for almost every visa extension application moving forward to find condition breaches, and then on a case-by-case basis determine what is to happen with those.

The absence of an overarching exemption and a the approach taken to offering a limited timeframe for only those in essential services to be able to vary their conditions should be a warning to all migrants and their employers of what is to come.  In their release statement INZ have advised that the short timeframe will enable employers in essential industries to maintain their labour pool as hiring would be very difficult while New Zealand remains at Alert Level 3 or 4.  The messaging here is that they are only allowing variations because those employers can’t hire New Zealanders for those roles instead due to the restricted environment under Alert Levels 3 and 4.

At the end of the variation period it would be expected that the migrant employee concerned would need to return to their standard visa conditions (undertaking full time employment in the occupation, location and for the legal entity/employer noted on their visa); if not, they are most likely going to lose that varied role.  While an applicant could apply for an ongoing variation of conditions once INZ open their offices again to continue, they would be considered in the “new” labour market (rising unemployment) and as such a decline is probable.

More importantly, for those who breach their visa conditions in non essential industries (such as reducing their hours of employment and/or remuneration under lockdown), be aware of what is to come.  If there is a breach of the conditions noted then unless a very good case is made to explain that and more importantly why it is absolutely necessary for that person to continue employment (including why it would be impossible to either find or train a replacement Kiwi for that role) – then those extension applications are most likely heading for decline.

The focus we believe that will be established with determining officers in an environment of unemployment of in excess of 10%, will be to move to decline unless there are exceptional reasons to excuse the breach, and that is most likely limited to an absolute certainty that there is no New Zealander that can be hired or trained for that role instead and/or the inability of that migrant to continue the role would place the employment of New Zealanders working in that business at risk.

contact

Mark 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 Kruger
Partner, Lane Neave

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