Appendix 10 - Rules for non-compliant employers

Appendix 10 - Rules for non-compliant employers (employment standards-related non-compliance)

The Ministry of Business, Innovation and Employment (MBIE) maintains a list of non-compliant employers (for employment standards-related non-compliance) in accordance with the rules set out in the table below.
An employer is non-compliant when they have been issued with an infringement notice by a labour inspector, or had a penalty ordered against them by the Employment Relations Authority or the Employment Court for employment standards-related breaches.
An immigration officer should rely on the list of non-compliant employers maintained by MBIE as evidence of whether or not the employer is a non-compliant employer under these rules.
For the purposes of these instructions, any employer, no matter what form of legal entity they are, can be considered a non-compliant employer subject to the stand-down periods set out in the table below, including, but not limited to, companies, individuals, sole traders and partnerships.

Rules for inclusion on the stand-down list maintained by MBIE for employment standards-related non-compliance

Enforcement action	Stand-down period
Infringement notice	6 month stand-down for a single infringement notice. Each subsequent infringement notice incurs a further stand-down of 6 months. The maximum stand-down for multiple infringement notices issued at one time is 12 months.
Penalties ordered by the Employment Relations Authority or by the Employment Court for employment standards-related breaches	Penalties 6 month stand-down when the total amount of penalties ordered in a case is up to and including $1,000 for individuals and body corporates or other entities. 12 month stand-down when the total amount of penalties ordered in a case is: over $1,000 but less than $10,000 for individuals over $1,000 but less than $20,000 for body corporates or other entities. 18 month stand-down when the total amount of penalties ordered in a case is: $10,000 and above, but less than $25,000, for individuals $20,000 and above, but less than $50,000, for body corporates or other entities. 24 month stand-down when the total amount of penalties ordered in a case is: $25,000 and above for individuals $50,000 and above for body corporates or other entities.
Declaration of Breach ordered by the Employment Court and any subsequent order of pecuniary penalties	12 month instant stand-down when Declaration of Breach issued, adjusted up to 24 months if a pecuniary penalty is issued following a Declaration of Breach Pecuniary penalties are those penalties ordered under section 142E of the Employment Relations Act 2000 (against a person in respect of whom the court has made a declaration of breach).
Banning Order	12 month stand-down from recruiting migrant workers for employers incurring a banning order of less than 5 years, to be added at the end of the ban period. 24 month stand-down from recruiting migrant workers for employers incurring a banning order of 5 years and over, to be added at the end of the ban period.

Notes:
• The Employment Relations Authority and the Employment Court may take the approach of looking at the totality of penalties for a group of breaches without necessarily identifying a penalty for each breach. In this situation, the stand-down periods are set according to the total dollar amount for penalties ordered for a case in relation to breaches of employment standards.
• If an individual or body corporate or another entity incurs several penalties in one authority determination or court judgement they will only get up to the maximum of 24 months stand-down period at that time. However, the individual or body corporate or another entity will be subject to another stand-down period after this if further non-compliance results in enforcement action that triggers another stand-down.
• Employment standards related breaches are breaches of any of the following:
• the requirements of any of sections 64, 69Y, 69ZD, 69ZE, and 130 of the Employment Relations Act 2000
• the requirements of sections 63A and 65 of the Employment Relations Act 2000
• the provisions of the Equal Pay Act 1972
• the minimum entitlements and payment for those under the Holidays Act 2003
• the requirements of sections 81 and 82 of the Holidays Act 2003
• the minimum entitlements under the Minimum Wage Act 1983
• the provisions of the Wages Protection Act 1983

Effective 11/04/2024

PREVIOUS IMMIGRATION INSTRUCTIONS

Appendix 10 - Rules for non-compliant employers (19/02/2018)

Appendix 10 - Rules for non-compliant employers (01/04/2017)

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