2015-Jun 19: Processing applications with Employer Improvement Notices

Visa Pak 216: Guidance for staff when processing applications where the employer supporting the application has been given an Improvement Notice by the Labour Inspectorate.

Visa Paks

19 June 2015

Processing applications with Employer Improvement Notices

A main focus of MBIE’s Labour Inspectorate (LI) is to ensure that employers are complying with New Zealand employment laws and consequently protecting both New Zealand and migrant workers from exploitation. When the LI have reason to believe that an employer is not meeting these requirements they can issue an Improvement Notice (IN) or enter into an Enforceable Undertaking to ensure that the employer complies with the legislation they have breached. The LI will then refer the situation to the evaluators in CRIS who then enter the appropriate warning or alert on AMS.

An employer has 28 days in which to respond to the issues raised in an IN. In the last year the LI has issued approximately 300 INs with about 2/3 relevant also to immigration issues. An enforceable undertaking is, in essence, an agreement by the employer to comply which that can result in a compliance order if not actioned. Currently the LI are only able to provide an overview of the reasons for the compliance action but are working with Legal to develop an information sharing agreement that will allow them to give the full details to Immigration New Zealand (INZ).

Both SM7.20 Requirements for employers and WK2.15 Evidence required from employers under Essential Skills work instructions require employers to comply with all immigration and employment laws. Immigration Officers will need to take into account the information provided in an alert about an IN when making decisions for both temporary entry work visa and Skilled Migrant Category resident visa applications. According to the information received, Officers will use their discretion, as always, in deciding on the next step in processing the application.

Action

When the LI has taken compliance action against an employer, the Officer should PPI the applicant with the information provided in the alert. Example wording could be: "INZ holds the following information about the employer who has provided your job offer [information provided in the alert]. We are not prepared to make a decision on your work visa/residence application until the issue is resolved. You may wish to pass this information on to the employer. You can give any further information or comments they provide in your response to your case officer."

Following the response to the PPI and according to the severity of the breach, there will be various options open to Officers in their decision-making. The following are examples only and not exhaustive as all temporary decisions are on a case by case basis, having weighed and balanced the factors:

  1. If the employer complies following an IN, then the officer may consider approving the application, providing there is no previous history of breaches.
  2. If the employer has disputed the IN, then the officer may decide to wait until the issue has been resolved, possibly by the Employment Relations Authority [ERA].
  3. If the employer has ignored the IN then the case will go to the ERA to decide.

Decisions by ERA can be found on the NZLII website:

New Zealand Employment Relations Authority decisions

Scenarios in (2) and (3) may take weeks or months to decide but the fact that the employer has ignored or disputed the allegation puts the prospective employee at risk of being exploited. It is important that INZ is not complicit in supporting a business in breach of employment and/or immigration laws by approving visas for people to work for them.

Consequently, if there is no response to a PPI letter or the response does not allay concerns that the employer is not complying with all immigration and employment laws, then the officer may, on a case by case basis, consider declining the application. If the issue is very technical then officers may seek advice from the Labour Inspectorate.