Choosing The Right Structure For Your Social Enterprise

Whether you are engaging with new employees or contractors, you have a positive obligation to make sure your worker has the right to work in New Zealand. 

The Employment Relations Authority keeps an eye out for employers who don’t comply with this obligation (and Immigration New Zealand too!).

And, under the Immigration Act 2009, employers could be fined up to NZ$50,000. 

This article will talk about your obligations, what could happen if you don’t comply and what you could do to avoid the headache of penalties.

What To Know

It is your responsibility as an employer to check whether your workers can legally work in New Zealand.

This includes employees, contractors and any other workers you source from labour hire arrangements or recruitment agencies.

And it applies to both paid and unpaid work.

But how do you know someone is illegally working in New Zealand?

Put simply, a person does not have a right to work in New Zealand if they do not have a valid visa or permit.

Those who are in New Zealand without a valid visa are considered to be unlawfully in the country.

Others may have a visa but with conditions that do not permit them to undertake certain types of work or work for certain employers.

If you’re not well-versed in all the different types of visas and their working conditions – don’t fret!

Head over to Immigration New Zealand’s VisaView service, where you can check what working conditions are attached to each visa. 

You need the worker’s permission to access their VisaView details, so make sure you get this permission as part of your on-boarding process!

What Happens If You Don’t Comply?

As an employer, you could face penalties if you employ a person who does not have a valid right to work in New Zealand.

You can be fined up to NZ$50,000 (and, for more “aggravated” breaches such as forced or exploitative labour, this number can go up).

In recent years, the law has been enforced to ensure employers are taking their responsibilities seriously.

Employers could still face penalties even if they unknowingly employed a person without valid working rights.

This places a positive obligation on every employer to actively make sure that their employees have valid working rights. 

Employers who fail to comply with this obligation could be liable for fines.

It’s also worthy to note that even executive officers could be held personally liable if they:

1. were aware of the breach,
2. influenced the employer in the breach, or
3. failed to take reasonable steps to prevent the breach.

What To Do

The last thing you want is the headache of an investigation and heavy fines facing your business.

Under the Immigration Act 2009, employers must take “reasonable steps” to check the working status of their employees and contractors.

This includes keeping records of your employees’ working status and making the necessary enquiries. 

Don’t turn a blind eye if you suspect a worker doesn’t have the requisite visa status! 

Particularly, if you are employing someone who has a temporary working visa, you are obliged to continue to check their work rights until their employment contract ends.

So – how do employees prove that they have valid working rights in New Zealand?

To prove they have a right to work in New Zealand, your employees can provide the following documents:

• New Zealand birth certificate and a photo ID
• New Zealand citizenship certificate
• New Zealand passport
• Australian passport (under the Trans-Tasman Travel Arrangement)
• Valid visa or permit with relevant work rights

To avoid penalties, it’s a good idea to make sure you are proactive about checking your employees’ work rights from the very beginning.

For example, you can:

• Post job advertisements specifying that applicants must have valid working rights in New Zealand before applying
• Introduce employee screening processes with compulsory reviews of employees’ work rights when they start work with you
• Review any contracts you have with third-party labour hire or recruitment companies to make sure they are also checking the rights of suggested workers

And, if you have any employees who are on temporary visas, be sure to schedule regular check-ups of their working status.

If you have further questions around employing (or sponsoring) visa-holders, Immigration New Zealand has a handy resource here.

For any questions about other obligations you have before taking on a new employee, you can view a checklist here. 

What To Take Away…

The duty to check whether your workers have the right to work in New Zealand is something that can often be forgotten.

While you might be employing a person in good faith, you are required by the law to take reasonable steps to check their working status.

It’s a good idea to be proactive because “not knowing” is no longer an excuse.

Investigations are a headache, fines are heavy and the last thing you want is finding out a valuable employee is illegally working for you.

Still have questions?

We’re here to help – you can get in touch with our friendly team at 0800 002 184 or [email protected].

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