2016-Aug 15: Recruitment Companies – Employment agreements and the requirements to be a direct employer

Visa Pak 272: Clarification for staff about recruitment agencies and the need for employment agreements to be clear, and state who the direct employer is.

Visa Paks

15 August 2016

Recruitment Companies – Employment agreements and the requirements to be a direct employer

Immigration New Zealand is increasingly seeing applications for visas based on an offer of employment from a recruitment company. Recruitment companies rely on being contracted by other companies or individuals for their services. If they are not contracted, recruitment companies may be unable to provide work for their employees. This is generally reflected in their employment agreements.

The information below provides advice on what to look out for when assessing an application for a work visa where employment is based on an offer from a recruitment company.

Employment Agreements

  • Employment agreements must be clear and not ambiguous. Often, employment agreements offering work through a recruitment company will be accompanied by an assignment agreement. This provides details of an applicant’s work assignment with a specific company who is a client of the recruitment company offering employment. If the two are in conflict, these cannot be accepted. The conflict will generally be in relation to length of assignment and hours of work.
  • Immigration instructions W2.10.10 state that offers of employment must be sustainable. If work assignments cannot be guaranteed, then this cannot be considered sustainable employment.
  • There must be a guarantee of 30 hours paid work per week. Clauses that allow for hours to be varied can only be accepted when there is a guarantee that the varied hours will not be less than 30 hours per week.
    Direct Employer
  • Under Essential Skills work instructions, the employer offering employment to an applicant must be the proposed direct employer. A direct employer is usually responsible for such things as payment of salaries, PAYE tax instalments, conditions of employment and the day-to-day supervision of the workplace and the employee.
  • In particular, immigration officers should consider an employer’s commitment and assurances to the day-to-day supervision of the workplace and employee when determining whether the employer is the direct employer.
  • It is important to note that immigration instructions do allow for labour hire companies to be recognised as the direct employer. This is referenced by WK2.15 and WK2.25 in relation to accreditation for labour hire companies where the job offer is in the construction sector in the Canterbury region.