D7.40 Offences by employers
See also Immigration Act s 350
- It is an offence for an employer to:
- allow or continue to allow any person to work in their service, knowing that the person is not entitled under the Immigration Act 2009 to do that work; or
- allow a person who is not entitled under the Immigration Act 2009 to do that work.
- It is a defence to a charge under subsection (a)(ii) above if the employer:
- did not know that the person was not entitled to do the work; and
- took reasonable precautions and exercised due diligence to ascertain whether the person was entitled to do the work.
- Except as provided in (b) above, it is not a defence to a charge under (a)(ii) above that the employer did not know that the person was not entitled to do that work.
- For the purposes of section 350 of the Immigration Act 2009, an employer is treated as knowing that an employee is not entitled under this Act to do any particular work if, at any time in the preceding 12 months (whether before or after the commencement of section 350 of the Immigration Act 2009), the employer has been informed of that fact in writing by an immigration officer.
- “Reasonable precautions” for the purpose of (b)(ii) above includes but is not limited to an enquiry made to VisaView.
D7.40.1 Prosecution under section 350
- For a prosecution to succeed under section 350 of the Immigration Act 2009 it is necessary to prove that the employer:
- knowing a person is not entitled to undertake employment in New Zealand, allows or continues to allow that person to undertake employment; or
- allowed a person who is not entitled to work under the Immigration Act 2009 to work.
- Consideration should be given as to whether to make the person working without authority liable for deportation under section 157 of the Immigration Act 2009. (see D3.30)
- No employer is liable for an offence under section 350 of the Immigration Act 2009 if they continue to employ a person while complying with the minimum requirements of an employment contract relating to termination of employment.
D7.40.5 Assessing eligibility to work
- Although there is no requirement for an employer to verify an employee or potential employee’s entitlement to work, unless an employer has taken reasonable precautions to ascertain that the person could legally work, it is not a defence that the employer did not know that the person was not entitled under the Immigration Act 2009 to do that work.
- To take reasonable precautions to verify the work entitlement of an employee or potential employee, an employer should:
- request suitable documentation proving the person’s right to work in New Zealand (see W2.10.6); or
- make an enquiry through VisaView on the INZ website at www.immigration.govt.nz/VisaView; or
- contact the Immigration New Zealand Contact Centre.
Note: It was previously a reasonable excuse for allowing a person who was not entitled under section 39 of the 1987 Act to work for an employer to do so if the employer concerned:
a. did not know that the person was not entitled to work for them; and
b. that person held a signed tax code declaration that stated that they were entitled under the Immigration Act 1987 to work for the employer.
That defence no longer exists.