Pulpit

Filling labour shortages is complicated

ThePulpit

Nick Mason

MEETING labour requirements for the 2022-23 dairy and cropping season are front of mind for many employers.

New Zealand farmers and growers rely on approximately 9000 migrant workers, many of whom were on tenterhooks for most of past year following the prolonged suspension of the skilled migrant category Residency pathway from March 2020 onwards.

Approved visas in the 202021 financial year for the sector nationally were around 2200, or almost 25% of the migrant labour pool for agriculture.

The announcement in October of a new residence pathway for 165,000 migrant workers already in New Zealand helped assuage some fears, but not all.

Now, following extensive lobbying by the dairy industry, Immigration New Zealand will allow up to 200 dairy farm employees (assistant dairy farm managers, dairy herd managers and dairy farm assistants) to enter New Zealand to provide support for the upcoming dairy season. All three groups are able to apply to bring their partners and dependent children with them.

This process is being facilitated by DairyNZ, Federated Farmers and the Ministry for Primary Industries (MPI) working with Immigration NZ.

This process differs from the usual visa application process as it requires DairyNZ and MPI to nominate each individual employer and potential international employee.

If approved, INZ will then invite your worker to apply for a Critical Purpose Visitor Visa, which will have work rights.

Each international employee must also enter MIQ (or selfisolate depending on the government rules at the time) and employers are responsible for these costs and paying wages during that time.

Visa applications for these groups opened on January 17 and migrant employees must enter NZ before April 2022, so there is a narrow window in which to act.

DairyNZ recommends obtaining professional immigration advice given the complexity of the entire process.

Meanwhile, farm and horticultural employers looking to employ new migrant workers or retain existing migrant workers will be impacted by this year’s introduction of the Accredited Employer Work Visa (AEWV) - a new temporary work visa that opens to applications from July 4.

INZ is replacing the Essential Skills Work Visa, the Talent (Accredited Employer) Work Visa and the Long-Term Skill Shortage List Work Visa with the AEWV.

It says the AEWV will reduce reliance on lower paid temporary migrant workers and increase the overall skill level of migrants coming to work in New Zealand.

INZ also says this change will combat migrant exploitation and misuse of the immigration system by filtering out employers, who have previously breached immigration requirements or employment standards, at the accreditation stage.

However, it will also introduce more red tape for employers, who will have to deal directly with INZ and go through the accreditation process before advertising jobs.

The process is more complex and bureaucratic than anything we have seen before in New Zealand and we recommend employers be aware of the requirements and get ahead of the game.

In short, INZ is introducing a three-check process to manage AEWV applications and ensure that employers and migrants fit the new requirements.

The three checks are: • Employer accreditation • Job check • Migrant check

The first step sees employers able to apply from May 9 to ensure they can get accreditation before migrant applications open on July 4. Employers don’t need to be accredited until they want to start employing migrants but delay in obtaining accreditation means delay in an employer’s ability to support a migrant’s application.

Standard accreditation is required for up to five migrant workers on AEWV and highvolume accreditation is for those employing six or more migrant workers on AEWV.

The requirements for standard accreditation include being IRD registered and holding a New Zealand Business Number, having no recent history of regulatory non-compliance, having appropriate employment documentation, and taking steps to minimise the risk of exploitation.

In addition, for high-volume accreditation, jobs must meet a minimum pay requirement of 10% above the minimum wage or be covered by a collective agreement.

There are further requirements for franchisees and for businesses that place AEWV holders with third parties, as it is considered that the risk of migrant exploitation is increased in such work environments.

The second check INZ will carry out is a job check or labour market test to ensure that, for any job offered through the AEWV scheme, the employer holds accreditation, the employment is acceptable, and no New Zealanders are available.

The labour market test requirements vary for jobs paying above and below the median wage and depend on whether the job is located in a city or a region. There are also specific job advertising requirements to ascertain availability of New Zealanders to do the job.

A labour market test is not required if: • the job pays 200% of the median wage, currently the median wage is $27 an hour • the job is in the regions and pays at, or above, the median wage • the job is on a skill shortage list, in a city, and pays at, or above, the median wage.

For entry level workers into the agricultural sector that pay below $27 per hour, there is still a pathway, but it is more complex. We recommend talking to an immigration lawyer to help you navigate this route.

The final step is the migrant check, ensuring the applicant meets the visa requirements.

This is done through online applications, available from July 4 and ensures that the applicant is suitably qualified and meets requirements in terms of health, character and bona fide credentials.

A migrant will not be able to submit their application unless the employer is already accredited, and the job has passed the job check stage.

It is not yet known how long it will take INZ to process an accreditation application or to complete the three-check process.

As a result, we recommend that employers don’t leave applying for accreditation to the last minute – we are already helping many agricultural employers prepare for the new process.

We also don’t know if employers will have review or appeal rights where negative decisions are made.

We expect further information from INZ to come, including tools for employers and migrants, a definition of ‘franchisee’ for accreditation, and details around fees for the three-check process.

Initially, this system change will undoubtedly increase costs, time and red tape, and support for navigating the processes involved will be needed. Once in the system as an accredited employer things should become more streamlined.

Immigration New Zealand says the Accredited Employer Work Visa will reduce reliance on lower paid temporary migrant workers and increase the overall skill level of migrants coming to work in New Zealand.

Nick Mason Pitt and Moore Lawyers

COMPLEX: Lawyer Nick Mason says the new work visa for skilled migrants should help, but also add red tape for agriculture employers.

Who am I?

Nick Mason is a partner at Pitt and Moore Lawyers.