Tina Hwang, Associate and Max Shin, Senior Solicitor at Queen City Law provide an introductory glance at the interplay between employment law and immigration law ahead of their upcoming presentation at the Immigration Law Conference. They will go into more depth to ensure you are able to comply with both legal frameworks.
Introduction
Many lawyers, agents and advocates specialise in employment or immigration, but rarely do you find one that has knowledge across both spheres. However, these areas of law overlap in many ways as the basic work visa is fundamentally based on a job offer and employment agreement. This will require support from an employer who will now need to be accredited under the new immigration policies released recently, for the employee to qualify for residency.
The new stages of accreditation with Immigration New Zealand (“INZ”) requires the employer to be compliant with current New Zealand employment regulations and to undergo a special application proving its capabilities to receive the accreditation status. There will be three categories, and any employer wanting to employ foreign employees will need to be accredited in at least one of the categories. Furthermore, employers who have been found to “non-compliant” in the past will be unable to support employee’s work visas in the future so full compliance is key for employers. This is often difficult for small to medium enterprises who may not have the resources or knowledge to fully comply to the requisite standards. It is therefore important for the advisers to have relevant knowledge in both realms of law to be able to provide proper legal advice.
Latest Update on Employment Law
In April/May 2019, there were many legislative changes in employment, yet some people still appear to be oblivious to these changes. The main changes are set out below.
Domestic Violence Leave
In April 2019, a completely new type of leave was introduced. Employers must now be aware of sensitivities in dealing with domestic violence for workers even where the incidents were suffered outside of work. Employers have new obligations to provide a sensitive process and up to 10 days paid leave for workers affected by domestic violence. Flexible hours may be another resolution and the need to deal with such matters sensitively and confidentially will mean employers will need to have proper procedures in place to deal with this before such incidents arise.
ACC Work Levies
As of April 2019, employers and self-employed people will be paying on average 6.9% less ACC levies. No action is required, and many would have already noticed these changes.
Minimum Wage Increase
As of 1 April 2019, minimum wages increased to $17.70 an hour. Consequently, the Starting-out and Training Minimum Wage rates increased from $13.20 to $14.16 per hour to equate to 80% of the minimum wage for adults.
Payday Filing
As of 1 April 2019, all employers are now required to comply with mandatory payday filing requirements every payday instead of simply filing an employer monthly schedule.
90-day Trials
As of May 2019, trial periods have become a thing of the past with only “small businesses” under 20 employees being able to implement trial periods which were often the golden way to test employee’s capabilities without recourse to personal grievance claims. Employers will still be able to implement probation periods, but good faith and due process requirements apply, and the employee will have rights to bring a personal grievance claim for any unjustified dismissals under probation periods.
Meal and Rest Breaks
This provision has been “in and out” for a while now. In November 2014, the National Government removed the right to mandatory tea breaks explaining this as a means of providing flexibility to employers rather than stripping rights away. In the National legislative change in, employers were to give employees a reasonable chance to “rest, refreshment, and atten[d] to personal matters” and are “are appropriate for the duration of the employee’s work period.” Then in May 2019, under the Labour government, mandatory breaks were reinstated. This means that an employee is now required to be given set rest and meal breaks dependant on the hours worked aimed at assisting employees to work more safely and productively. Employers must pay for minimum rest breaks, but do not have to pay for meal breaks.
Union Powers and Collective Bargaining
As one can expect under Labour policies, there have been many changes strengthening unions and collective bargaining. For instance, union representatives can now enter workplaces without employer consent, employers cannot make deductions for partial strikes, and the “30-day rule” was reinstated in 6 May 2019 meaning that any new employees must be given terms and conditions consistent with the collective agreement for the first 30 days and can subsequently enter into more favour terms.
These are just some of the new employment regulations affecting parties and a further full paper will be circulated to those attending the Legalwise Immigration Conference 2019 to be held on 12 November 2019.
Tina Hwang is an Associate of Queen City Law. Tina completed her LLB (Hons) degree at the University of Auckland and is a member of the Auckland District Law Society (ADLS) Property Disputes Committee.
Max Shin joined Queen City Law in 2015 after working at a general law firm in Takapuna, Auckland. His previous legal work was in the property, conveyancing and commercial law spheres.
