Immigration specialist Simon Laurent, principal of Laurent Law, discusses immigration laws which impact on the wine industry’s hiring of migrant workers.
As with most other industries in New Zealand nowadays, wine producers need to factor in the employment of migrant workers. This ranges from engaging seasonal workers to pick grapes, to bringing in specialists to manage winery operations. Here is a quick overview of the Work Visa categories which may be most applicable.[i]
This is a major route for securing Work Visas based on employment. Since changes to Immigration Instructions in August 2017, the nature and term of the visa granted is tied to the level of salary offered, as set out in another recent Legalwise article.[ii] The resulting “skill level” of the job is noted as a condition on the visa.
Critically, it is the hourly rate which determines the skill level of employment. Even if someone is engaged on an annual salary, this will be rendered into a rate per hour by Immigration New Zealand (“INZ”) depending on the maximum number of hours to be worked each week.[iii] If work patterns result in variable hours, this could create real problems not only for the visa holder, but also for an employer if the worker’s calculated hourly rate falls below the skill band/salary band tied to the visa.
Employers must demonstrate that they could not find New Zealand workers to fill the position, usually by way of advertising and/or engagement with WINZ. As wineries are often in semi-rural areas, this may be easier to satisfy than in main population centres, especially for more specialised roles such as winemakers, or hospitality managers who now often run the cellar door in vineyards positioning themselves for the boutique wine-tasting experience.
Specific Purpose Visas
. . . are sometimes a solution in order to avoid the need to meet the Labour Market Test described above. Particularly relevant to the wine industry are the categories which allow specialist technical or management staff in for a well-defined time period to handle a project.[iv] One example would be a technician to oversee the installation of winery equipment; or a multinational wines and spirits organisation importing a marketing or hospitality manager to implement a promotional shift in the profile of a New Zealand site,.
Owing to the time-bound nature of such assignments, this is not a suitable avenue for possible Residence later on. However, it can be used as a stepping-stone to a more permanent engagement under an Essential Skills Work Visa.
Accreditation or Approval in Principle
Becoming an Accredited Employer can allow you to hire an open-ended number of staff, provided (usually) that they are paid a minimum base salary of $55,000 p.a., and working in the “core area of business”.[v] Getting accreditation is a rigorous process, and INZ will look closely at the company’s employment practices, its financials, and its proven commitment to hiring New Zealanders. It must be renewed every 2 years (or 5 years if INZ is satisfied the employer will continue to meet policy). On the other hand, staff can get 30-month Work to Residence visas, which may be a significant inducement to attract key people from offshore.
Alternatively, one can apply for Approval in Principle (“AIP”) to hire a set number of people for particular jobs. Employers must make a case that they can’t source people locally; and again, their financials and HR policies will be scrutinised carefully. INZ may grant less positions than the number sought, so sometimes it may be a strategy to aim high. As with accreditation, once an AIP is issued it is not necessary to address the Labour Market Test in individual visa applications.
One notable caveat for the wine industry: an AIP may not be granted for jobs to “plant, maintain, harvest or pack crops in the horticulture or viticulture industries”[vi] – that is, the lower-skilled occupations. For those, one must look to the RSE scheme.
Recognised Seasonal Employer
The RSE scheme brings in short-term workers for peak demand periods such as grape picking.[vii] Each year (to June) 11,100 places are available, with first preference given to Pacific Island workers in line with New Zealand’s economic commitments to the region. INZ takes a “whole of country” approach to assess allocation of places to various districts.
Agricultural and wine producers must first register to be a RSE. They will demonstrate good workplace practices, sustainable finances, and “sustained evidence” of recruiting and training local people. Distinct from other Work Visa criteria, employers have to satisfy pastoral care requirements, which include:
- paying half the worker’s airfare;
- accommodation and related facilities;
- access by workers to the health insurance which they must hold;[viii] and
- enabling workers to secure banking and remittance services to send earnings back to their families, as many do.
Once certified, they must then apply for an Agreement to Recruit a certain number, subject to the regional allocation of places.
A common theme with all work-based visas is an increasing focus on whether employers have a history of compliance with both immigration and employment laws.[ix] Employers face prosecution for allowing people to work when they have the wrong visa conditions – or no visa at all.[x] More commonly, though, visas can be declined if INZ determines that the employer has breached any of a long list of labour-related legislation. Companies are also now blacklisted from time to time upon grounds as simple as being sanctioned by the Employment Relations Authority or Employment Court.[xi]
Those advising employers, including those in the wine industry, should look carefully at their client’s workplace policies, practices and documentation before the employer supports applications for any of the visas mentioned above.
Since starting practice representing refugees in the mid-1990s, Simon Laurent has developed a strong reputation as a leader in the Immigration field. He has chaired and presented seminars for both lawyers and immigration advisers, and has been called upon to provide industry comment for the media. For several years Simon sat on the Council of the Auckland District Law Society. He convened the Society’s Immigration and Refugee Committee in 2006, 2007 and 2014. He is also a member of the NZ Law Society Immigration Committee. From 2010 to 2012 he was Chairman of the New Zealand Association of Migration and Investment. Laurent Law accepts instructions to solve complex immigration situations, including referrals from other lawyers and advisers. Contact Simon at [email protected]
[ii] Karen Justice, “Impact of the changes to the New Zealand immigration requirements one year on” (Legalwise News, 26 July 2018)
[iii] See Instructions WK3.5.5 for calculation method
[iv] Instructions WS2.1
[v] Instructions WR1
[vi] Instructions WK3.1
[vii] Instructions WH
[viii] Instructions WH1.25
[ix] See Instructions W2.10
[x] Immigration Act 2009, ss 350 – 351
[xi] Fiona McMillan, “Lessons for employers after MBIE Burger King ban over breach of Minimum Wage Act 1983” (Legalwise News, 13 September 2018)