Mahafrin Variava, a Senior Solicitor at Pitt & Moore Lawyers and Notaries Public, provides insight into the disconnect between employment and immigration law.
In 2020-2021, Immigration New Zealand (Immigration NZ) approved 35,000 Essential Skills Work Visa Applications (ESWV), and 3,000 Talent (Accredited Employer) applications. Both these visa types being employment bound. It is therefore safe to say that a large number of our migrant population are in New Zealand on ESWV’s.
The ESWV category also has the largest number of declined applications with a grand total of 2,500 applications declined in 2020-2021.
Concerns that Immigration NZ usually raises with respect to such visa applications include whether an applicant is skilled by training and experience to perform the job on offer, whether an applicant is of good health and character, whether the employer is compliant with employment laws and has sound HR practices, whether the job offer is genuine and stable and whether adequate advertising had been undertaken.
However, in light of the COVID-19 pandemic and the downturn in our economy, we’ve begun to see concerns being raised by Immigration Officers around migrant workers’ terms and conditions of employment, including leave without pay, maternity leave, reduced hours and reduced wages.
We anticipate that scrutiny of terms and conditions of employment will continue to increase and evolve as we move towards the new Employer Accreditation regime and the new Accredited Employer Work Visa. Employers will have to demonstrate good workplace practices and compliance with immigration and employment laws which hints at a more frequent cross-over between the two disciplines.
This also means that as Lawyers and Licensed Immigration Advisers (LIAs), we will need to be better equipped to tackle not just immigration issues, but also employment-related concerns.
The reality is, we may not be waiting that long to deal with such scenarios. In fact, many of us have already noticed the disconnect between immigration and employment law. This article discusses a few instances where the disconnect between the two is apparent in immigration assessments and where to from here.
Defining “work” or “employment”
The Immigration NZ Operational Manual (the Instructions) defines “work” under W2.2.1 as follows:
W2.2.1 Definition of ‘work’
a. Work means any activity undertaken for gain or reward, but does not include:
i. visits by persons undertaking business activities detailed in V3.5(b);
ii. official business in the service of any government, or of any inter-governmental or international organisation that is entitled to any privileges and immunities under the Diplomatic Privileges and Immunities Act 1968 (see H2);
iii. study or training under a scholarship or other award recognised by the Minister;
iv. visits by guests of government (guest of government status is granted by the Visits and Ceremonial Office, Department of Internal Affairs);
v. visits by persons who meet the special requirements under V3.55, V3.85, V3.130, V3.140 or V3.150;
vi. volunteer work for the Department of Conservation;
vii. from 20 August 2020 to 31 July 2021 (inclusive), any tasks associated with the supply of goods to, from, or within a supermarket that is operating in a region under COVID-19 Alert Level 3 or 4 undertaken by a student or work visa holder, or interim visa holder (who held a student or work visa immediately prior to the interim visa), who was an employee of that supermarket on the day immediately prior to the region entering Alert Level 3 or 4.
viii. hours of work undertaken in accordance with WK3.5.10or SM6.20.10
The words “employment” or “work” have not been defined under employment legislation but are defined in case law. However, what has been defined is the word “employee”. Section 6 of the Employment Relations Act 2000 (the Act) defines an employee as “any person of any age employed by an employer to do any work for hire or reward under a contract of service and includes a homeworker or a person intending to work”. Section 6(1)(c) of the Act clearly stipulates that the definition does not include a volunteer who does not expect to be rewarded for work to be performed as a volunteer; and receives no reward for work performed as a volunteer.
While the terms “work” and “employee” are both defined somewhat similarly by the immigration instructions and the Employment Relations Act, it is the application of these definitions in practice and immigration assessments that is inconsistent.
Case Study – Leave without pay (LWOP)
Our client was earning $55,000 annually and had secured a Talent (Accredited Employer) Work Visa before the policy changed (increasing the annual earning threshold). She was on this work visa for approximately 12 months before COVID-19. As a result of COVID-19, her employer could not afford to pay her. They agreed that she would go on a period of LWOP until the employer was able to recover from the business and build it back to a position where she would start getting paid again. The client did not want to leave her job at that stage because she was concerned about the impact it would have on her visa.
Following this, about eight months later, our client accepted a redundancy pay-out and left her employment as she could not afford to remain on LWOP for any longer. Our client questioned how this would impact her ability to apply for residence under the Work to Resident (Talent Accredited Employer) pathway.
Immigration NZ (and a Senior Technical Advisor) were consulted about this. We were advised that the residence instructions at RW2.10 required applicants to provide evidence that during the currency of their visa granted under the Talent (Accredited Employers) work instructions, the applicant has been employed in New Zealand by any accredited employer throughout a period of at least 24 months.
They further clarified that “employment” is defined as an activity undertaken for gain or reward and therefore, by being on LWOP, the applicant was “very unlikely” to meet the definition of employment.
We were advised that the applicant would therefore have to continue employment for another 6-7 months to complete the LWOP period before submitting her residence application.
Finally, they ended by suggesting that any other reasonable fluctuation of pay during the period of 24 months was likely to be accepted on a case-by-case basis where an applicant was exercising their statutory rights as an employee (i.e. annual leave, maternity leave) or when an employer was receiving the wage subsidy.
If we were to think laterally, and adopt Immigration NZ’s definition of employment (where you may not be employed even though you are party to an employment agreement), then we should be asking ourselves, what “gain or reward” might one benefit from even though one is on leave without pay?
In some situations, an employee may be entitled to paid public holidays or bereavement leave during a period of leave without pay. There may also be instances during the LWOP period that the employee has kept the benefit of employer equipment (i.e. a phone, a laptop, a company car).
In addition, an employee could legitimately claim the time employed whilst on leave without pay as “time employed with a particular employer” on their CV thereby making them more attractive to future potential employers.
Therefore, while on LWOP, is the employee actually not gaining any benefit or reward? We would argue to the contrary. The employment relationship is not “terminated” while the employee is on LWOP. An employment agreement was still in place and therefore, under employment law, our client continued to remain employed and was considered an employee despite being on LWOP.
Immigration NZ consistently places importance on “gain and reward” as opposed to whether the employment relationship exists. The Employment Relations Act states that an employee is an individual who will do work for reward under a contract of service. The Act also places importance on the employment relationship just as much as it does on the reward.
Although adopting the definition under the Act would not have changed anything for our client (as she was not getting paid the required $55,000 for the duration of the 24 months), the instructions suggest that she had to demonstrate that she had “been employed in New Zealand throughout a period of 24 months” (refer RW2(b))– which, she had been.
What about volunteering?
Under employment law, a volunteer is not an employee and therefore, is not covered by the employment legislation. In order for parties to want and have a volunteer relationship, the fact that the worker does not receive or expect payment must be made clear. Should an employer pay a volunteer, they may be considered to be an employee. Payment does not include a koha, any personal satisfaction a volunteer may gain from the work or, reimbursements to the volunteer for any expenses they incur while performing the work.
Immigration NZ on the other hand defines “volunteering” differently. According to the Immigration NZ website[i]:
If you hold a student, visitor, or work visa you can volunteer, providing you will not receive any gain or reward for the activity you volunteer for. Gain or reward is defined as anything that can be valued in terms of money, i.e. a payment or benefit.
The website then proceeds to provide the example that if an individual were given a clothing voucher in exchange for their voluntary activity, then they would have received a reward and would be in breach of their visa conditions.
“Gain or reward” as defined by Immigration NZ is any payment or benefit that can be valued in terms of money. Examples include, services (such as transport), training, goods (such as food or clothing) or accommodation (such as boarding or lodging). Immigration NZ makes it clear that if an individual’s intention is to receive gain or reward, then they are not considered to be a volunteer and should be applying for a work visa.
This disconnect can be highly detrimental and confusing to a range of visa holders. Detrimental, because if Immigration NZ considers that an individual has breached their visa conditions, then a cancellation of a visa and subsequent deportation are among the worst case scenarios. Confusing, because Immigration NZ’s definition itself appears to be vague which is why most LIA’s and Lawyers find themselves advising their clients to not volunteer at all – just to avoid any risk of a potential breach of visa conditions.
Many within the industry will agree that there have been multiple instances where migrants have had to clarify their work rights and their ability to volunteer. Equally, many required representation in situations where Immigration NZ has taken the view that they are “working”, even though they may have been volunteering.
Many migrants come to New Zealand with the aspirations to enter the workforce but also, to give back to their local communities. Unfortunately, Immigration NZ’s interpretation of what it means to be a volunteer has only acted as a deterrent to migrants who are wanting to contribute to charitable initiatives, assist with ad hoc tasks, volunteer at rest homes or through other social causes.
The fix and future learnings
The question we find ourselves asking is, “Where to from here?” Given that we are now aware of the disconnect, how do we fix it?
First, we must realise that cohesion is important. Immigration decisions, when unfavourable, can have devastating consequences for our clients. At worst, they can lead to individuals being deported from the country they have invested their life, skills, and life savings to live, work and settle in.
Reassuring, perhaps, is the impending overhaul of the work visa categories. We hope that this will involve a review of immigration policies including the much needed (and well overdue) review of the Accredited Employer policy.
Although the ESWV and the Talent (Accredited Employer) Work Visa will eventually cease, we have to accept that we are living in the “new normal”. With COVID-19, the landscape of employment law has had to evolve to accommodate for new working arrangements (including working remotely) and pay arrangements among other things.
As lawyers, what we can do is upskill and familiarise ourselves with the ins and outs of employment law. For LIA’s the recommendation would be to consider outsourcing any work that may require more detailed “employment-law” related arguments, or seeking an expert opinion from a Lawyer.
Finally, our submissions and the quality of applications we put forward are our strongest tool and an avenue to continue to highlight the inconsistencies in immigration policy versus employment legislation.
Perhaps more advocacy (and conversation) will prompt a more in-depth review of policy and a change in the way applications are assessed.
Mahafrin joined Pitt & Moore Lawyers and Notaries Public in April 2021 and is a Senior Solicitor in their Litigation, Immigration and Employment team. She has practiced in the immigration space since 2015 after completing her Bachelor of Laws from the University of Waikato. Mahafrin also holds a Graduate Diploma in Conflict Resolution from AUT University and has completed papers in Employment Law. Mahafrin practices in all areas of immigration law and has more recently branched out into the employment law space. Although Mahafrin’s clientele are a mixture of private and corporate – she finds it most fulfilling to reunite families and help new migrants blend into the fabric of Aotearoa. You can get in touch with Mahafrin on [email protected] or LinkedIn