WA2.60 Definitions

WA2.60.1 Definition of ‘accredited employer’

1. An accredited employer is a New Zealand employer who has had an employer accreditation application or interim accreditation approved by INZ under these instructions, and that accreditation has not expired and has not been revoked.

WA2.60.5 Definition of ‘direct employer’

A direct employer is the employer who is named on the employment agreement and is:

1. a legal entity including, but not limited to, an incorporated company or society; or
2. legal persons that comprise the employer organisation accredited under these instructions including, but not limited to, partners in a partnership, a sole trader in a sole trader organisation and trustees in a trust.

Note: The direct employer that is named on the employment agreement is responsible for, but does not necessarily carry out, such things as payment of salaries, PAYE tax instalments, determining the hours the employee will work and determining conditions of employment.

WA2.60.10 Definition of ‘key person’

1. A key person is:
   1. in a company, any person occupying the position of a director of the company regardless whether they hold the title Director; or
   2. in a partnership, any partner; or
   3. in a sole trader, the sole trader; or
   4. in a trust, any trustee; or
   5. in a crown entity (including schools), a chief executive officer or school principal; or
   6. in a tertiary education facility, a vice-chancellor or chief executive; or
   7. in a body corporate or an unincorporated body, other than a company, partnership, or limited partnership, any person occupying a position in the body that is comparable with that of a director of a company; or
   8. any other person that occupies a position (including an unofficial, undocumented or undeclared position) in relation to the organisation that allows the person to exercise influence over the organisation or undertaking (for example a chief executive officer or other head person of the organisation, or a ‘shadow director’ who acts as a director or gives instructions to the appointed director(s) on how they should act), where such influence could result in non-compliance with employment or immigration regulatory standards.
2. In determining whether a person occupies a position in relation to the organisation that allows them to exercise influence over the organisation, as set out at (viii) above, INZ will take into account a range of factors including, but not limited to, whether that person:
   1. provides the overall direction and management of an organisation;
   2. assesses and manages business operations and financial performance (including handling of budgets and engaging accountant);
   3. prepares and files statutory documents with the Companies Office or other government agencies;
   4. ensures the organisation complies with company law and other relevant legislation;
   5. binds the company to contracts with suppliers, lenders and others dealing with the company, (including securing funding and assets);
   6. ensures the organisation's policies and procedures are followed by staff;
   7. decides what roles are needed in the business (this may include making hiring and employee management decisions);
   8. purchases inventory & resources;
   9. materially (for example earns a salary, takes drawings or receives dividends), or otherwise, profits from the organisation or undertaking.

WA2.60.15 Definition of ‘triangular employment arrangement’

1. A triangular employment arrangement is when a direct employer places an employee with a controlling third party. The employee is employed by the direct employer but works under another business or organisation that directs or controls the employee’s day-to-day work (the controlling third party).
2. For the purpose of these instructions a controlling third party means an entity or person who:
   1. has a contract or other arrangement with an employer, contractor or sub-contractor, under which an employee performs work for the benefit of that entity or person; and
   2. exercises, or is entitled to exercise, control or direction over the employee that is similar to the control or direction that the employer exercises, in relation to the employee.
3. Employers using triangular employment arrangements include, but are not limited to:
   1. labour hire employers; and
   2. other employment agencies who send employees on work assignments to a controlling third party (including labour-for-hire, labour-on-hire, temping and contingent labour employers, and employers that place workers with sub-contractors); and
   3. employers who send employees on secondments to a controlling third party; and
   4. parent, group or umbrella companies who place their employees with a controlling third party, such as a subsidiary company that is a separate legal entity.

WA2.60.20 Definition of ‘franchisee employer’

For the purposes of this policy, a franchisee employer is an employer (organisation) that:

1. purchases the right to use a pre-existing business system mandated by a third party business; and
2. is substantially or materially associated with a brand, trademark, advertising, marketing channels, or a commercial symbol owned by that third party; and
3. has that third party controlling certain activities or structures within their business, set out through an agreement, operational guideline or through a terms and conditions document that covers one or all of the following features:
   1. continuing financial performance or reporting obligations to that third party;
   2. an ongoing obligation to pay that third party any fee, or percentage of profits generated by the business from the ‘rights to use’ detailed in (a) and (b) above;
   3. restrictions, expectations, or control imposed by that third party, over where the business can source goods and services and/or how to set up or run their business;
   4. restricted ability to refuse requests by that third party, raise concerns or complaints regarding that third party, and/or lack of ability to easily exit or terminate the agreement.

Effective 23/05/2022