WA2.20 Requirements for employers using triangular employment arrangements (11/04/2024)

An employer who places, or wants to place, Accredited Employer work visa holders in triangular employment arrangements (as defined at WA2.60.15), must:

1. only place Accredited Employer work visa holders with organisations that meet the requirements set out at WA2.20.1; and
2. monitor the employment conditions and safety of Accredited Employer work visa holders that are placed in a triangular employment arrangement, as set out at WA2.20.5; and
3. respond appropriately to any issues regarding the employment conditions and safety of Accredited Employer work visa holders that are placed in triangular employment arrangements, as set out at WA2.20.10; and
4. place New Zealand citizens and residents in work, as set out at WA2.20.15; and
5. have a history of employing staff, as set out at WA2.20.20.

WA2.20.1 Organisations an employee can be placed with

1. The employer must only place Accredited Employer work visa holders with an organisation who:
   1. has an NZBN, unless they are a foreign diplomatic or consular mission (such as an Embassy, High Commission or Consulate); and
   2. is not currently included on a list of non-compliant employers maintained by the Ministry of Business, Innovation and Employment (MBIE), as set out in Appendix 10; and
   3. has declared that it, or any of its key persons:
      • are not on the list of non-compliant employers maintained by MBIE and are not subject to a permanent ban from sponsoring migrant workers (see Appendix 18); and
      • have not received a prison sentence or home detention for the specific offences under the Immigration Act 2009 set out at WA2.10.10(g); and
      • have not been convicted of the specific offences under the Immigration Act 2009 or the Crimes Act 1961 set out at WA2.10.10(h); and
   4. has declared that it, or any of its key persons, are not aware of any cases pending, prosecutions underway, or investigations which, if proven, would result in failure to meet (ii) or (iii) above; and
   5. has agreed with the employer that INZ may conduct a site visit to their organisation; and
   6. has agreed with the employer to provide them with records detailing placement information for the Accredited Employer work visa holders placed with the organisation, including, but not limited to starting and finishing dates, hours worked, locations of work and employment or safety issues identified.
2. Evidence of meeting the requirements set out at (a) above may include, but is not limited to:
   1. information about which organisations Accredited Employer work visa holders are placed with, including the entity name and NZBN;
   2. declarations provided to the employer by the organisation an Accredited Employer work visa is being placed with;
   3. information from the Labour Inspectorate.

WA2.20.5 Monitoring the employment conditions and safety of employees in triangular employment arrangements

1. The employer must have a plan in place to monitor the employment conditions and safety of Accredited Employer work visa holders that covers the requirements set out at (b) to (g) below.
2. The employer must carry out checks to ensure the organisation where an Accredited Employer work visa holder is placed:
   1. has effective processes in place to prevent and address workplace bullying, including a complaints process for the Accredited Employer work visa holders to report bullying to the organisation they are placed with and a process to address and resolve any issues reported; and
   2. has effective processes in place to assess and prevent risk, including a risk register; and
   3. carries out health and safety inductions for Accredited Employer work visa holders on starting their placement with the organisation; and
   4. understands the visa conditions of Accredited Employer work visa holders being placed with them (including the occupation and location(s) the visa holder may work in); and
   5. does not require or force Accredited Employer work visa holders that are placed with them to undertake work that is inconsistent with their employment agreement and/or visa conditions (including hours of work); and
   6. does not require or force Accredited Employer work visa holders that are placed with them to work hours that do not align with health and safety standards (taking into account the occupation and industry). For example, not allowing rest breaks, not allowing for reasonable sleep and recovery time between shifts or work days, or requiring workers to work excessive hours on high risk or critical tasks to the extent that the worker’s health and safety is put at risk.
3. The employer must check whether an organisation meets the requirements set out at (b) above:
   1. before an Accredited Employer work visa holder is placed in a triangular employment arrangement with that organisation; and
   2. throughout the period that an Accredited Employer work visa holder is placed in a triangular employment arrangement with that organisation.
4. Checks carried out before an Accredited Employer work visa holder is placed in a triangular employment arrangement must include, but are not limited to:
   1. assessing documentation from the organisation about their:
      • processes to prevent and address workplace bullying; and
      • processes to assess and prevent risk (including a risk register); and
      • health and safety induction material; and
   2. providing information to the organisation about the visa conditions and employment terms and conditions of the Accredited Employer work visa holders that will be placed with them; and
   3. acquiring declarations from the organisation that they meet the requirements set out at (b) above.
5. Checks carried out throughout the period that an Accredited Employer work visa holder is placed in a triangular employment arrangement must include, but are not limited to:
   1. having contact with the Accredited Employer work visa holder:
      • at least once per fortnight for the first two months of a new placement, and then at least once per month; or
      • more frequently where appropriate, for example where the duration of the Accredited Employer work visa holder’s placement is for less than one month, or when the employer is in the process of resolving a dispute or complaint about the organisation the Accredited Employer work visa holder is placed with; and
   2. carrying out an on-site visit where the Accredited Employer work visa holder is working:
      • at least once within every six month period that an Accredited Employer work visa holder is placed at the site; or
      • less frequently (or not at all), where there is evidence that the risk of breaching the requirements relating to employment conditions and safety of employees is low, or the site cannot be accessed for safety reasons or due to being in a remote location.
6. The employer must provide a complaints process and guidance for Accredited Employer work visa holders to directly report issues to the employer.
7. The employer must maintain records detailing which organisation each Accredited Employer work visa holder is placed with, including, but not limited to, starting and finishing dates, the working locations, hours paid and hours worked (this includes hours for salaried Accredited Employer work visa holders).
8. The checks may consist of desk based checks and site visits to the organisation an Accredited Employer work visa holder is placed with.
9. Evidence of meeting the requirements set out at (a) to (g) above may include, but is not limited to:
   1. a documented plan that covers the requirements set out at (b) to (g) above;
   2. copies of the process documents and health and safety induction material provided by the organisation an Accredited Employer work visa holder will be placed with, such as contractual undertakings, workplace policies and guidelines, and records of communications with Accredited Employer work visa holders;
   3. declarations and/or terms of business between the employer and the organisation an Accredited Employer work visa holder will be placed with;
   4. records of the communications with Accredited Employer work visa holders while they are placed in a triangular employment arrangement;
   5. placement details of Accredited Employer work visa holders, including starting and finishing dates, regions and sites where the Accredited Employer work visa holders are working;
   6. information obtained from site visits of the organisation an Accredited Employer work visa holder is placed with;
   7. information from Accredited Employer work visa holders;
   8. wage and time records for Accredited Employer work visa holders;
   9. independent third party audit findings.

WA2.20.10 Responding appropriately to issues

1. The employer must have in place:
   1. an informal disputes and complaints resolution process for issues that can be resolved early, are one-off or are unlikely to recur; and
   2. a formal disputes and complaints resolution process for serious issues (for example working outside visa conditions, or recurring or numerous breaches).
2. The resolution processes must include:
   1. investigating the issues identified and recording findings of the investigation; and
   2. working with Accredited Employer work visa holders and the organisations they are placed with to resolve the issues, where practicable; and
   3. implementing actions and reviewing the organisations policies and processes to ensure they are effective to prevent the issues recurring; and
   4. where issues cannot be resolved internally, seeking help from an external party, for example the Ministry of Business, Innovation and Employment’s Early Resolution Service or Employment Mediation Services; and
   5. reporting significant breaches to the relevant authority, for example breaches of employment law to the Labour Inspectorate, and breaches of immigration law to INZ. Significant breaches include, but are not limited to:
      • breaches that create a risk of harm to the Accredited Employer work visa holder;
      • requiring or forcing Accredited Employer work visa holders that are placed with them to undertake work that is inconsistent with their employment agreement and/or visa conditions;
      • requiring or forcing Accredited Employer work visa holders that are placed with them to work unrecorded overtime;
      • recurring or numerous employment, immigration or workplace safety issues where the cumulative effect is comparable to a significant breach; and
3. Where a significant breach in (b)(v) above has been identified or the organisation no longer meets the requirements set out at WA2.20.1(a), the employer must remove the Accredited Employer work visa holder from the organisation they are placed with as soon as practicably possible. They may only place that visa holder or any further Accredited Employer work visa holders with the organisation when the issue has been resolved.
4. Where a moderate issue (such as poor workplace culture or workplace bullying) has been identified, the employer must:
   1. promptly adhere to their disputes and complaints resolution processes to resolve the issue with the organisation the Accredited Employer is placed with; or
   2. remove the Accredited Employer work visa holder from the organisation they are placed with as soon as practicably possible and not place any further Accredited Employer work visa holders with them until the issue has been resolved. This includes where the issue cannot be resolved, or where the employer chooses to remove the visa holder rather than resolve the issue with the organisation they are placed with.
5. Where the issue or non-compliance affects more than one Accredited Employer work visa holder, those visa holders must also be removed from that organisation.
6. Evidence of meeting the requirements set out at (a) to (e) above may include, but is not limited to:
   1. documented complaints and disputes resolution processes;
   2. records of issues raised in relation to Accredited Employer work visa holders, how the issue was investigated and resolved, the outcome of issue resolution and corrective actions taken to prevent the issue recurring. This includes information directly from Accredited Employer work visa holders and the organisations they are placed with;
   3. terms of business, contract or agreement documentation between the employer and the organisation where Accredited Employer work visa holders are placed;
   4. records of site specific safety inductions of Accredited Employer work visa holders;
   5. site visit and inspection findings;
   6. safety audit compliance updates, including findings;
   7. communication records between the employer and both the Accredited Employer work visa holders and the organisations they are placed with (including emails, file notes, and records of meetings and conversations).

WA2.20.15 Placing New Zealand citizens and residents in work

1. A minimum of 15% of the employer’s employees who are placed in triangular employment arrangements must be New Zealand citizens or residents who are guaranteed at least 30 paid hours per week, unless the employer is placing no more than one employee in a triangular employment arrangement.
2. Despite (a), if the employer is placing or intending to place Accredited Employer work visa holders in any of the construction occupations specified below and have more than one employee in a triangular employment arrangement, a minimum of 35% of the employees who are placed in triangular employment arrangements must be New Zealand citizens or residents who are guaranteed at least 30 paid hours per week:

Note: For the avoidance of doubt, accreditation of existing employers will not be revoked on the basis of non-compliance with the new 35% threshold where the employer continues to meet the threshold of New Zealand workers that applied to them when they were granted accreditation. Any new Job Check applications by that employer may however be declined if that employer does not meet the new 35% requirement, and the new threshold will apply to any further accreditation applications by that employer.

WA2.20.20 History of employing staff

1. The employer must have employed staff, who is not a key person, in New Zealand for the 12 months prior to the application being made.
2. An employer may use another legal entity’s history of employing staff in New Zealand to meet (a) above if at least 66% of the ownership of the employer and the other entity is the same, and the employer and the other entity are in the same sector and provide the same goods and/or services.
3. Evidence of meeting the requirements at (a) and (b) above may include, but is not limited to:
   1. employment records;
   2. audited accounts;
   3. evidence of owners of the employer (organisation) and affiliated organisation.

Note: Where these instructions state ‘employer,’ they refer to the employer applying for accreditation, not the organisation that Accredited Employer work visa holders are placed with.

Effective 11/04/2024