16 Nov Immigration Act 2009: Employer obligations
Source: Immigration New Zealand
The provisions of the Immigration Act 2009 relating to employer obligations come into effect on 29 November 2010.The provision allowing the Department of Labour to share information with employers came into effect on 2 August 2010.
What is changing?
The 2009 Act narrows the ‘reasonable excuse’ defence for employing a foreign national not entitled to work in New Zealand.
Employer obligations
The new Act retains the requirement that employers must not employ foreign nationals who are not entitled to work in New Zealand or for that employer. This applies whether or not the employer knew the foreign national was not entitled to work.
From 29 November 2010, employers need to show they have taken ‘reasonable precautions’ and ‘exercised due diligence’ in checking whether foreign nationals are entitled to work for them. An Inland Revenue ‘IR 330’ form will no longer be a ‘reasonable excuse’.
The reasonable excuse change will not apply to workers who were employed before 29 November 2010, when the new Act provisions come into effect.
The Department of Labour has worked with employer organisations and unions to develop guidance on what constitutes ‘reasonable precautions’ and ‘due diligence’.
The Department has also introduced an online system called VisaView to enable registered employers to verify whether prospective employees are entitled to work for them and whether there are any conditions.
The system is designed to be quick and easy to use, and to protect individual privacy. Employers who obtain information from the Department will be required to comply with the Privacy Act 1993.
Penalties
The penalties for offences committed by employers will remain the same as under the Immigration Act 1987:
The maximum penalty for employing a foreign national who is not entitled to work in New Zealand is a fine of $10,000.
- The maximum penalty for allowing or continuing to allow a foreign national to work while knowing that person is not entitled to work is a fine of $50,000.
- The maximum penalty for exploiting a foreign national who the employer has allowed to work while knowing that person was not entitled to work is:
- imprisonment for seven years, or
- a fine of $100,000, or both.
Employer obligations – frequently asked questions
Note: The provisions of the Immigration Act 2009 are not yet in force. The provisions relating to employer obligations will come into effect on 29 November 2010, with the exception of the provision allowing the Department to share information with employers, which comes into effect on 2 August 2010.
The provisions of the Immigration Act 1987 apply until the new provisions come into effect.
How will the Immigration Act 2009 affect employers?
Under the Immigration Act 2009 (and the Immigration Act 1987), an employer must not employ a foreign national who is not entitled to work in New Zealand or entitled to work for that employer. This applies whether or not the employer knew that the foreign national was not entitled to work.
What if an employer holds an IR 330 (tax code declaration) form for the employee?
When the Immigration Act 2009 comes into effect on 29 November 2010, the provision of an IR330 tax declaration form will no longer be a reasonable excuse for employing a person who is not entitled to work in New Zealand or entitled to work for that employer. Instead, an employer will have to show that they took reasonable precautions and exercised due diligence to check whether the foreign national was entitled to work for the employer in New Zealand.
What does the change mean for employers?
The Department of Labour recognises that most employers are already very good at checking a person’s entitlement to work. Our guide to help employers check work entitlement suggests that:
Employers have secure and robust systems and processes in place for:
-
- checking a potential employee’s immigration status
- retaining copies of the documentation that was checked.
- Employers review their recruitment processes to ensure they are communicating to potential employees at the earliest opportunity the need to provide evidence of eligibility to work in New Zealand.
How will an employer be able to check a foreign national’s entitlement to work?
Employers can:
- Ask if the person is entitled to do the work (e.g. is the person entitled to work in Marlborough picking grapes?)
- Seek documentary evidence of entitlement
- Check the evidence
- Keep a record of the evidence
What documents will be acceptable as evidence of entitlement to work?
The Department will recognise (and proposes that as a matter of best practice employers only accept) the following documents as acceptable evidence of a person’s eligibility to work in New Zealand:
| Non-citizen |
| Foreign passport with a valid New Zealand work visa |
| Foreign passport with any valid New Zealand visa allowing work |
| Foreign passport with a New Zealand residence class visa |
| Australian passport |
| Foreign passport with an Australian permanent resident visa and/or a current resident return visa |
| Citizenship |
| New Zealand passport |
| Full New Zealand birth certificate issued prior to 1 January 2006 showing parents names (with photo identification) |
| Full New Zealand birth certificate issued on or after 1 January 2006 that positively indicates New Zealand citizenship |
| Certificate of grant of New Zealand citizenship (with photo identification) |
| Registration as a New Zealand citizen by descent under section 7(2) of the Citizenship Act 1977 (with photo identification) |
| An evidentiary certificate issued under section 21 of the Citizenship Act 1977 confirming the person to be a New Zealand citizen (with photo identification) |
| Foreign passport with an endorsement indicating the fact of New Zealand citizenship (with photo identification) |
| New Zealand citizens include persons from the Cook Islands, Niue and Tokelau. |
What support will the Department provide employers?
The Department has developed an online service (VisaView) that will let an employer check a prospective employee’s entitlement to work in New Zealand for that employer.
When will the online enquiry service be available for employers to use?
The VisaView online service is available from 2 August 2010.
Can any employer use the online enquiry system?
Employers will be required to register and be verified as a New Zealand employer.
What information will I be able to get about a potential employee?
Employers are able to check whether a person is able to work for that employer, any conditions attached to that particular visa and the expiry date of that visa.
What are the penalties for employers who employ foreign nationals not entitled to work in New Zealand?
Penalties for offences committed by employers remain the same as under the Immigration Act 1987:
- The maximum penalty for allowing a foreign national who is not entitled to work in the employer’s service to do that work is a fine of $10,000.
- The maximum penalty for allowing or continuing to allow a foreign national to work while knowing that person is not entitled to work is a fine of $50,000.
- The maximum penalty for exploitation of a foreign national whom the employer has allowed to work while knowing that person was not entitled to work is:
- imprisonment for seven years, or
- a fine of $100,000, or
- both.