Aaron Martin, Principal immigration lawyer, New Zealand Immigration Law

The Job Check has been introduced to ensure that there are no suitable New Zealanders who can do a job before it is offered to a migrant worker. But it comes with a requirement to state the rate of overtime pay and hours guaranteed in the job contract. Although this doesn’t sound unreasonable it is not a legal requirement for standard employment contracts. Making it a requirement for migrant contracts puts employers in a tricky situation. Will this now become a mandatory requirement for all workers to be offered overtime? Is that the government’s secret agenda?

Employer accreditation has been open for processing for the last month or so. The employer accreditation applications are progressing well, but the new accreditation system also comes with a new Job Check process, and this process has some new policy details which are concerning.

The Job Check has been introduced to ensure that there are no suitable New Zealanders who can do a job before it is offered to a migrant worker. Before you apply for a Job Check, you need to have:

accreditation to hire on the Accredited Employer Work Visa (AEWV)

an acceptable job offer, job description, and employment agreement

evidence you advertised if the job pays less than twice the median wage or is not on the Green List

the Australian and New Zealand Standard Classification of Occupations (ANZSCO) code that best matches the job you are offering based on the INZ view of ANZSCO.

The new policy details mean that, when you offer a role to a migrant worker, amongst other things, you need to include the following within your employment agreement:

the overtime rate of pay

guaranteed hours and actual pay

the number of hours the employee may be asked to work, including any hours paid at overtime rates.

Knowing that Immigration New Zealand’s (INZ) intent or desire here is to be restrictive about the number of migrant workers entering New Zealand, you begin to see the Job Check requirements as being loaded with fishhooks. Let’s take a closer look at the main two:

1. The requirement to state guaranteed hours and an overtime rate

The Job Check requires employers to state the minimum number of hours guaranteed for a role, and when overtime would be paid. Both minimum hours and overtime rates are not laws that are applied to local workers – our labour laws don’t require a guaranteed minimum number of hours. Enforcing this exposes an employer to be sued if, for whatever reason, they can’t offer the stated number of hours.

Forcing employers to commit to paying an overtime rate opens up a big can of worms. If this happens, INZ is essentially forcing a change on local workers’ employment agreements through the back door. Local workers are going to ask, “If a migrant worker is being paid overtime because you can’t hire them without it, then why aren’t I?”

This leads to increased costs of running your business which will have to be passed on to clients, which increases prices and ultimately drives up inflation. It also increases your wage bill and your wage inflation. It just doesn’t make any sense.

This all begs the question around whether INZ has included this new requirement to state minimum hours worked and overtime rates in order to force all employers into new fair pay agreements across the board – making it mandatory to include minimum hours and overtime back into all pay agreements.

2. Ads have to run for two weeks, then stop

As part of the Job Check process, employers are required to advertise for two weeks on a national job listing site where suitable New Zealanders are likely to apply. But INZ is now making employers turn off their ads before filing the Job Check. Again, this makes absolutely no sense from a business perspective.

It’s clear that INZ don’t want to engage or collaborate, in any meaningful way, with professionals outside of INZ. This is why the private sector doesn’t get invited to have input or test out functionality. As a result, what they get is functionality that works on paper, but not in the real world.

Just incompetent, or a hidden agenda?

The changes to the Job Check process seem to be another example of INZ introducing an amended policy before it is even implemented. They seem to lack the ability to engage with the business community or HR and employment law professionals to identify gaps or flaws within their policies. It’s almost like the Microsoft Patch approach – let’s just launch and then as we discover problems, we patch it up.

If INZ want certain things in an employment agreement and want to have specific clauses for overtime rates etc, then why not create them so that employers can just copy and paste them into their employment agreements?

I think the reason they don't want to do that is because what they actually want, in a back-end way, is to enforce parity in the workplace, and uplift terms and conditions beyond those of what the current labour law allows an employer to get away with. They actually want to see a reintroduction of time-and-a-half as overtime. That's fine, but just be honest about it instead of having all this smoke and mirrors nonsense that is ultimately going to hurt employers and the economy.

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