D7.45 Exploitation of unlawful employees and temporary workers

1. An employer commits an offence against the Immigration Act 2009 who, while allowing an unlawful employee or temporary worker to work in the employer’s service:
   1. is responsible for a serious failure to pay to the employee money payable under the Holidays Act 2003; or
   2. is in serious default under the Minimum Wage Act 1983 in respect of the employee; or
   3. is responsible for a serious contravention of the Wages Protection Act 1983 in respect of the employee.
2. It is also an offence for an employer, while allowing an unlawful employee or temporary worker to work in the employer’s service, to take an action with the intention of preventing or hindering the employee from:
   1. leaving the employer’s service; or
   2. leaving New Zealand; or
   3. ascertaining or seeking his or her entitlements under the law of New Zealand; or
   4. disclosing to any person the circumstances of his or her work for the employer.
3. The following matters may be taken into account in deciding whether a failure, default, or contravention is serious:
   1. the amount of money involved; and
   2. whether it comprises a single instance or a series of instances; and
   3. if, it comprises a series of instances, the number of instances and the period over which they occurred; and
   4. whether or not it was intentional; and
   5. whether the employer concerned has complied with record-keeping obligations imposed by the Act concerned; and
   6. any other relevant matter.
4. The following are examples of actions of the kind referred to in (b) above:
   1. taking or retaining possession or control of a person’s passport, any other travel or identity document, or travel tickets; or
   2. preventing or hindering a person from:
      • having access to a telephone; or
      • using a telephone; or
      • using a telephone privately; or
      • leaving premises; or
      • leaving premises unaccompanied; or
   3. preventing or hindering a labour inspector (within the meaning of the Employment Relations Act 2000) from entering or having access to any place or premises to which he or she is entitled to have access under any enactment.
5. In these provisions, in relation to an employer:
   1. a temporary worker means a person:
      • who the employer knows holds a temporary entry class visa; or
      • who holds a temporary entry class visa and in respect of whom the employer is reckless as to whether or not the person holds a temporary entry class visa
   2. an unlawful employee means a person who undertakes work for the employer that:
      • the employer knows, under this Act, the person is not entitled to undertake; or the person is, under this Act, not entitled to undertake and in respect of which the employer is reckless as to whether or not the person is entitled to undertake the work.

Effective 09/04/2016