Employment Court of New Zealand · [2026] NZEmpC 240
The legal connection is the New Zealand employment relationship, not the bank account or country used for the transaction.
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Practical read
Practical takeaways
A payment made overseas can still be an unlawful employment premium under New Zealand law. The decisive connection is the job in New Zealand, not the location of the payment.
If a person is engaged on behalf of the employer to collect the premium, their receipt is legally the same as receipt by the employer.
An older decision, Mehta v Elliott, had concluded that section 12A did not reach a premium paid overseas. Later Authority decisions took different approaches, leaving uncertainty in cases involving international recruitment.
The Court brought two proceedings together on the legal question and invited interveners. It then considered the statutory wording, protective purpose, modern employment context and the practical operation of offshore pay-to-work schemes.
The contextual evidence described payments requested before a worker received an agreement or visa job token. Money could move through cash, overseas bank accounts, relatives or informal contacts and be described as recruitment or processing costs.
The Court referred to evidence of demands commonly between $10,000 and $60,000. Workers may borrow, sell property or rely on family funds, creating debt that makes later workplace exploitation harder to resist.
Section 12A is a protective minimum employment standard. Reading it as limited to payments inside New Zealand would let the same prohibited bargain escape the law through the location of a bank account or handover.
The Court identified the New Zealand employment relationship as the statutory connection. When the premium is for work in New Zealand, the offshore location of the transaction does not stop the prohibition applying.
Section 12A expressly covers a person engaged on behalf of the employer. The Court said that if the person is engaged to collect a premium for employment, their receipt is legally the same as receipt by the employer.
When deciding whether the recipient had that role, the Authority may draw reasonable inferences from messages, relationships, timing, cash movements and the wider factual pattern.
Key points
Section 12A of the Wages Protection Act prohibits an employer, or a person engaged on behalf of the employer, from seeking or receiving a premium in respect of employment. The full Court confirmed that the prohibition is not avoided by arranging for the payment to occur overseas.
If that person is engaged on behalf of the employer to collect the premium, the Court said their receipt is legally the same as receipt by the employer. Whether someone had that role is a factual question assessed from the whole record.
The Court resolved the preliminary legal question against the narrow interpretation of section 12A. It did not decide whether any defendant actually sought or received a premium. Those allegations remain for the substantive proceedings.
No automatic conclusion follows from this judgment. Section 12A concerns a premium sought or received in respect of employment. Whether a particular fee meets that description, and whether the person who sought or received it was engaged on behalf of the employer, depends on the facts.
Require a written list of every candidate-facing fee, a clear ban on charging for employment, details of all agents and intermediaries, auditable payment records and a way for candidates to report demands directly. The employer should test those controls rather than relying only on a contractual promise.
Employment premium ban applies to offshore payments
The full Employment Court held that section 12A of the Wages Protection Act applies to premiums for New Zealand employment even when the payment is requested or made overseas.