WK2.10 Determining the availability of New Zealand citizens or residents (29/11/2010)

1. New Zealand citizens or residence class visa holder workers are considered to be 'available' if, as a result of a labour market test (see WK2.10.1), an immigration officer establishes that there are suitable New Zealand citizens or residence class visa holder workers who can:
   1. take up the work on offer; or
   2. readily be trained to do the work on offer.
2. Immigration officers will accept that no suitably qualified New Zealand citizens or residence class visa holders are available where an occupation is included on the current Long Term Skill Shortage List or Immediate Skill Shortage List.
3. It is not relevant to the determination of availability of New Zealand citizens or residence class visa holder workers whether those New Zealand citizen or residence class visa holder workers are prepared to do the work on the terms and conditions proposed by the employer.

Note: The Essential Skills in Demand Lists are published on the immigration website at www.immigration.govt.nz/essentialskills

WK2.10.1 Labour market tests

1. When conducting a labour market test an immigration officer must be satisfied that:
   1. the employer has made a genuine attempt (see WK2.10.5) to attract and recruit suitable New Zealand citizens or residence class visa holders (see WK2.10.5); and
   2. New Zealand citizens or residence class visa holders are not available (WK2.10).
2. Matters an immigration officer may take into account when determining whether or not a labour market test is satisfied include but are not limited to:
   1. the employer's case:
      • for an approval in principle; or
      • in support of an individual worker's application
   2. evidence of a genuine attempt (see WK2.10.5) on the part of the employer to recruit New Zealand workers by way of advertising and/or use of other appropriate avenues of recruitment likely to attract New Zealand workers;
   3. advice from the service delivery arm of the Ministry of Social Development, Work and Income about the availability of New Zealand citizens or residence class visa holders to do the work offered;
   4. advice from relevant stakeholders within the particular industry, including unions.
3. In any particular case an immigration officer may decide to:
   1. determine the labour market test is satisfied by one or more of the above; or
   2. determine that the labour market test is not satisfied by one or more of the above; or
   3. make other inquiries.
4. Despite (c) above, but subject to (e) below, when determining whether there are New Zealand citizen or residence class visa holder workers available to undertake work in an ANZSCO Skill Level 4 or 5 occupation, immigration officers must seek advice from Work and Income about the availability of New Zealand citizens or residence class visa holders to do the work offered.
5. The requirement in (d) above does not apply for any period of time where Work and Income has advised INZ of a regional absolute labour shortage for a specified occupation or industry, and the work offered is both for that occupation or industry, and in the region specified.

WK2.10.5 Definition of 'genuine attempts'

1. For the purpose of these instructions an employer is considered to have made genuine attempts to recruit suitable New Zealand citizens or residence class visa holders if:
   1. any specifications or requirements stipulated in a job description and/or ideal person specification are restricted to those specifications or requirements necessary to perform the work on offer; and
   2. the terms and conditions specified for the work on offer are not less than those of the New Zealand market, including payment at the New Zealand market rate; and
   3. the extent and nature of advertising or use of other appropriate means of recruitment is such that any suitable New Zealand workers would apply or be likely to apply for the position(s), for example:
      • listing the vacancy with Work and Income;
      • advertising the vacancy in a national newspaper and/or website;
      • contracting a recruitment company appropriate to the industry.
2. For the purposes of these instructions an employer is not considered to have made genuine attempts to recruit suitable New Zealand citizens or residence class visa holders if:
   1. the employer has advertised the work in such a way that no New Zealand citizen or residence class visa holder will or is likely to apply e.g. making foreign language skills a requirement when it is not necessary for the performance of the work; or
   2. an employer has advertised the work at terms and conditions that are less than terms and conditions New Zealand citizens or residence class visa holders typically receive for equivalent work.

Effective 29/11/2010