Background

From 4 July 2022, employers who have gained Employer Accreditation and completed the relevant Job Check(s) will be able to start supporting migrant workers on Accredited Employer Work Visas. This includes new migrant workers (including ones from offshore) and existing migrant worker visa renewals.

Employers will soon lead the Accredited Employer Work Visa process. This means that employers will need to gain Employer Accreditation and complete the relevant Job Check(s) before they can support migrant workers on Accredited Employer Work Visas.

On 4 May 2022, Immigration New Zealand released the Job Check policy. This article will focus on the key considerations and components relating to the Job Check policy update.

Briefly, the Accredited Employer Work Visa 3-step process is as follows (in order of application):

• Step 1 – Employer Accreditation: This is where Immigration New Zealand will check for employer regulatory compliance, confirm sound financial position, and confirm that the employer has carried out migrant worker settlement support activities. This step opened on 23 May 2022, with an estimated 10 working day processing timeframe for Standard Accreditation and High-Volume Accreditation.
• Step 2 – Job Check: This is the new Labour Market Test (advertising test) where Immigration New Zealand will check to see if the role(s) is/are genuine and where employers will need to prove to Immigration New Zealand that there are no New Zealand Citizens or Resident Visa holders to carry out or be easily trained to carry out the role(s). Job Check Labour Market Test evidence is not required for roles paid twice the median wage or for roles on the Green List . This step opens on 20 June 2022, with an estimated 10 working day processing timeframe.
• Step 3 – Accredited Employer Work Visa Application (Migrant Worker Check): This is where Immigration New Zealand checks the migrant worker to confirm that they are of good health, good character, and if they are suitably qualified through qualifications and/or relevant experience. This step opens on 4 July 2022, with an estimated 20 working day processing timeframe.

The Essential Skills Work Visa category will close on 3 July 2022. Applications under the Essential Skills Work Visa category must be submitted before this date.

Immigration New Zealand’s application fees are as follows:

Before The Job Check

Direct employers must hold a valid (non-suspended) Employer Accreditation status before they can make a Job Check application.

Employers with Standard Employer Accreditation can support between 1 and 5 migrant workers (job quota) on Accredited Employer Work Visas at any one time. Where the employer holds Standard Employer Accreditation, the Job Check will only be approved if the approval will not result in the employer having more than 5 jobs associated to them. It is possible for employers with Standard Employer Accreditation to apply for an upgrade to High-Volume Employer Accreditation (no job quota cap).

Job Check Overview

The purpose of the Job Check is to check whether there are any New Zealand Citizens or Resident Visa holders available to carry out or be easily trained to carry out the role(s) that an employer is trying to fill.

Employers must provide evidence of the following when applying for a Job Check:

1. An acceptable job offer, employment agreement, and a detailed job description.
2. Labour Market Test evidence for the role. This is only required if the role is paid less than twice the median wage or is not on the Green List. If a role is paid at or above twice the median wage or is on the Green List, the Labour Market Test is deemed to be satisfied.
3. The Australian and New Zealand Standard Classification of Occupations (ANZSCO) code that best matches the role.

Employers can include multiples of the same role in a single Job Check application. They must be covered by the same set of advertising evidence (if a Labour Market Test is required) and must also share the same:

• Job title/occupation;
• Location;
• Minimum and maximum remuneration;
• Type of agreement (permanent/fixed-term);
• Minimum qualifications, work experience, skills, and/or other specifications required for the job; and
• Proposed employment agreement and job description.

An approved Job Check will last for 6 months or when the employer’s Employer Accreditation lapses or is revoked, whichever happens first. If an employer’s Employer Accreditation has been suspended, no Job Check can be used during the suspension period. Job Checks approved before 4 July 2022 will have a longer expiry date (4 January 2023).

There is no statutory right of appeal against the decision to decline a Job Check, however, it is possible to request a reconsideration by another Immigration Officer within 14 calendar days of the date of the decision.

The 3 Key Job Check Components Explained

1. Acceptable Employment
Job Checks must be for ‘acceptable employment’ only. ‘Acceptable employment’ means employment that:
• Is paid at or above the median wage,  unless a sector agreement/median wage exemption applies;
• Is full-time (defined as at least 30 hours minimum each week);
• Is paid at least at market rate for that role;
• Only has lawful employment deductions and has no employer costs that are being passed on;
• Has a pay period that is no longer than 1 month;
• Is genuine and compliant with employment law;
• Has travel or change of location terms and conditions that have been set out in the proposed employment agreement and they do not have the potential to disadvantage the potential employee; and
• Is not self-employment; for planting, maintaining, harvesting or packing crops in the horticulture or viticulture industries; or for foreign crew of fishing vessels.

Please note that there are additional requirements specific to certain roles. Proposed employment with ‘triangular employment arrangements’ will only be deemed as ‘acceptable employment’ if the employer holds High-Volume Employer Accreditation with a Triangular Employment endorsement.

Employers should also be mindful when offering a salary. For example, if the proposed employment is for a role that has a range of hours, the maximum hours will be used when calculating the hourly rate. Immigration New Zealand has a helpful remuneration calculation guide here.

2. Labour Market Test
If a Labour Market Test is required, then employers must prove that there are no New Zealand Citizens or Resident Visa holders available to carry out or be easily trained to carry out the role(s) that an employer is trying to fill. The employer will need to provide evidence of their genuine attempts to recruit and make a declaration about whether they were able to find any suitable New Zealand Citizens or Resident Visa holders. Employers will need to provide a copy of the advertisement, the advertisement dates, and the advertisement channel(s). Advertisements must be listed for at least 14 days on an acceptable job listing website and the end date of the advertisement must be within 90 days before the Job Check application submission date. The advertisement must include:
• A detailed job description including job title, tasks, and responsibilities;
• The key terms and conditions of the proposed employment agreement, including:
  ‣ The minimum and maximum remuneration; and
  ‣ The employment type (permanent/fixed-term); and
  ‣ The estimated actual earnings (if the role is by piece, commission, and/or bonuses); and
  ‣ The minimum hours of work and days required; and
  ‣ The location; and
  • The minimum qualifications, work experience, skills, and/or other specifications required for the role in accordance with the relevant selected ANZSCO code; and
  • The number of available roles (if it is an advertisement of multiples of the same role).

Examples of acceptable job listing websites provided by Immigration New Zealand include:

• Seek;
• Trade Me Jobs;
• MyJobSpace; and
• Industry-specific/specialist job vacancy websites (for example: Farm Source).

3. ANZSCO Code Selection
Immigration New Zealand will use the closest matching ANZSCO code to determine if the minimum qualifications, work experience, skills, and/or other specifications identified by the employer are reasonably necessary to perform the role. For example, foreign language skills will likely be seen as not acceptable for a waiter, however, it could be seen as acceptable for a tour guide. Usually, the employer fills in the ANZSCO code that they believe is the closest matching ANZSCO code on the application form. If a role requires additional skills which are not listed in the closest matching ANZSCO code, the remuneration offered may need to be above the market rate for that role.Unless the operation of a vehicle is included in the role, requiring a driver licence or vehicle can no longer be a reason to decline a New Zealand Citizen or Resident Visa holder.

After The Job Check & Duration

Once an employer’s Job Check has been approved, Immigration New Zealand will provide the employer with a job token (a unique number). When a suitable migrant worker has been found (who meets the specifications provided by the Employer during the Job Check application), they can apply for their Accredited Employer Work Visa using the employer’s Job Check job token from 4 July 2022 onwards (provided that both the employer’s Employer Accreditation status and the Job Check are still valid).

Each unique job token is single-use and cannot be reused if it has already been used for an approved or a submitted Accredited Employer Work Visa application. If multiples of the same role were approved under a single Job Check, then each individual position will be allocated with a unique job token.

If a migrant worker’s Accredited Employer Work Visa application has been withdrawn or declined, or if the employer withdraws their offer of employment and notifies Immigration New Zealand, it may be possible for the employer to offer the role to another migrant worker without needing to redo a Job Check (provided that both the employer’s Employer Accreditation status and the Job Check are still valid).

What To Do Right Now

To stay ahead, employers should:

• Think about the roles they would like to employ now. Think about how many of these roles you would like to employ. Draft the employment agreement(s) and job description(s).
• Start advertising the role(s) which require(s) a Job Check in accordance with this guide.

How We Can Help

This article was written to provide general guidance only. It is correct at as the date of this article and is subject to further updates. Stay Legal is always happy to provide immigration guidance and solutions. If you have any questions about the contents of this article, please do not hesitate to contact us. Please call us +64 7 575 2882 or email hello@staylegal.co.nz.