2018 was a year of many ‘immigration-related’ headlines shedding light on a range of issues from migrant exploitation, through to the crisis many employers faced in recruiting suitably qualified staff from the local labour market.

News of severe shortages in specific industries and the regions were frequent, with many employers turning to the media – expressing concern on the difficulties associated with hiring migrants, due to the challenging and ever-changing immigration landscape.

For many businesses, obtaining accreditation status was a means by which they could recruit offshore workers and save both time and money in the process. Those that were already accredited were able to benefit from fast-track application processing and simplified documentation requirements which meant that applications were relatively straightforward.

This article provides an insight into what it means to be an ‘accredited employer’ for immigration purposes. I traverse the current policy and associated challenges and look at changes suggested by the Minister of Immigration in a consultation discussion document released in December 2018.

What does it mean to be an accredited employer?

Immigration New Zealand’s (INZ) Operational Manual is a key document relied upon by all stakeholders working within the immigration field in New Zealand. The document includes a set of instructions which provide a guide for how applications should be assessed and what requirements should be considered when determining the outcome of an application. WR1.20 of the Instructions, defines an accredited employer as “a New Zealand employer who has had an application for accreditation to employ persons under the Talent (Accredited Employers) Work Instructions approved by INZ”.

Under instructions WR1.1, the objective of the policy is to “allow accredited employers to supplement their New Zealand workforce in the core area of their business activity” through the recruitment of workers who are not New Zealand citizens or residence class visa holders, whose talents are required by the employer; with the accredited employer having direct responsibility for those employees and their work output.

The premise behind most applications for accreditation is a company’s anticipation of its future needs to recruit staff from offshore – an ongoing dilemma for many given the dearth of suitably skilled workers in the local labour market. Having successfully achieved accreditation, an employer then becomes a ‘trusted partner’ of INZ. This carries certain obligations, but importantly offers a streamlined process for obtaining a work visa for a prospective employee.

Under current requirements, a talent visa can be issued to those offered a gross annual salary of at least $55,000, who are under the age of 56; with standard requirements for the approval of a work visa applying (including health and character).

Tangible benefits exist for both employer and employee under the scheme. Accreditation allows an employer to recruit offshore applicants without the need for a local ‘labour market test’ – an often complex, time consuming and uncertain process, requiring evidence a migrant is the only suitable applicant. Having worked for two years on a talent visa will also allow a migrant to apply for residence, a significant feature for those unable to do so via an alternative pathway; and an incentive to remain with the employer (at least until residence has been obtained).

The policy outlining the requirements for accreditation is set out under WR1.25 and has been reviewed regularly since coming into effect in 2010. However, although relatively familiar for those with a working knowledge of policy, it can often present challenges for employers who from the outset appear good candidates for accreditation.

Difficulties with the current policy

The objective of the work visa policy overall is to allow New Zealand employers access to global skills and a diverse range of employees who can contribute to New Zealand, as well as to their businesses in a myriad of ways.

The premise behind most applications for accreditation is a company’s anticipation of its future needs to recruit talented staff from offshore due to increasing difficulty in finding candidates with suitable skills within the local labour market. Having accreditation status allows companies the flexibility to hire offshore workers. The positions to which those individuals would be recruited utilising the accreditation status, will be roles within the company which will not undermine the conditions of local workers based onshore.

WR1.25.5 of the instructions discusses what a case officer must consider when determining an application for accreditation. As a summary, the requirements are as follows:

• That an employer must be in sound financial position;
• That an employer must have human resource policies that are of a high standard;
• That an employer has a demonstrable commitment to training New Zealand citizens or residence class visa holders;
• That an employer has good workplace practices.

These elements are central to an overarching (and supposedly balanced) assessment by INZ, the final arbiter in the decision of whether the standard has been met. Of late however, we have become aware of a number of decisions causing issues for applicants which are to some extent perplexing.

Of particular note is INZ’s approach to an applicant’s “human resource policies” and “workplace practices”. In 2018 we were approached by a range of applicants (primarily in the construction and hospitality sectors) that had received negative outcomes due to INZ’s assessment showing shortcomings in these areas.

In our analysis of these decisions we referred to policy, taking the following into account:

Requirement factors

Under each of the requirements listed above, there is a list of factors that an immigration officer may consider in determining whether an employer has made the said requirement. It is noted that the wording of the policy under WR1.25.5 makes it quite clear that this list is not conclusive. We note for example:

In determining whether employers have good workplace practices, an immigration officer may take into account such factors as:

• Whether the employer has diversity policies and practices in place as outlined by Diversity Works NZ;
• The extent of any non-compliance with immigration or employment legislation;
• Where there have been minor breaches of legislation listed in WK5.1 (b)(iv), the degree to which the employer has put in place remedies to prevent similar breaches in the future;
• Policies and processes the employer has put in place to ensure they remain compliant with immigration and employment legislation;
• Feedback from relevant unions and other employee representatives.

The policy does not ask the officer to assess these factors collectively because it does not say that the officers must consider the first four factors. Therefore, these factors can be considered individually when arriving at a decision. Clearly, an officer is gifted with exercising discretion when assessing an application; but, an officer must also exercise a holistic approach by exploring alternatives when determining whether the organisation meets the requirement.

Therefore, INZ must question whether there is a need for a diversity policy within a small company. Additionally, a lack thereof does not mean that an employer does not have good workplace practices. The same applies to having HR policies of a “high standard”. The ‘high standard’ threshold is a comparative one, consequently it must be compared against other employers within the same industry.

If we apply this to practice, we can simply ask INZ to select any small business at random and query whether this business has “HR policies and process of a high standard”. While it is acknowledged that small businesses (who employ less than 10 people) may not be suited for accreditation; those businesses which employ at least 10 people, also may not have the finances, outgoings or the need to have extensive HR policies and processes in place. Nonetheless, the lack thereof does not automatically mean non-compliance; what it does illustrate is that small businesses simply thrive on getting through day by day. In the construction industry (especially), owners do not spend copious hours conducting performance reviews or disciplinary meetings for example.

It is unreasonable for a case officer to paint each accreditation application with the same brush without considering the size, nature of, and industry the business operates in. But, in practice, these factors do have an impact on organisations being able to meet the criteria for accreditation as it currently stands.

INZ must consider the importance of this in assessing applications for accreditation for small businesses and must consider that despite their size, the policy intended that these businesses be included.

The proposal

Towards the end of 2018, the Government released a consultation paper for further changes to work visas that were employer-assisted. There are a range of categories that fall under the employer-assisted work visa umbrella; Talent (Accredited Employer) Visas being one.

It is proposed that all employers wishing to hire migrants will need to be accredited and this requirement alone will facilitate change in the policy surrounding accreditation and accredited employer requirements. INZ intends to create an enhanced framework, streamlining the application process with three checks – also being referred to as the “Gateway Framework”.

Firstly, the employer gateway. Under this gateway, INZ’s intention is to determine that the employer is in fact cleared to hire migrants. This includes ensuring an employer has good quality workplace practices and procedures; that it complies with labour and employment laws; that it is committed to upskilling its workers; and that it is financially stable.

Secondly, the job gateway. Here, no labour marketing testing would be required for jobs that meet a higher remuneration threshold. As it currently stands, the remuneration threshold is $55,000 annually; the intention is to increase this to $78,000. Alternatively, if the employment falls under the new proposed Regional Skilled Shortage List, the labour market test requirement is exempt. However, in all other instances, a labour market test will be required.

Finally, the migrant gateway. This is the application process the applicant must go through. In this stage, the applicant’s health, character, identity and capability (ie, training and experience) will be checked.

What’s next?

While the review of the policy is welcome, this already-complicated category will be further hindered if employers do not understand the new changes and requirements.

In the next year or so, employers will require more administration of their workplace policies and processes to better prepare themselves to ensure that they meet the requirements to qualify for accreditation.

Given the heavy reliance on migrant labour in the current market, there is no doubt that, in the initial stages INZ will receive an influx of applications from employers seeking to be accredited. We also anticipate a decline in the numbers of applications for work visas in the short term.

The above is an interesting shift in the aims of the immigration system – processes that were once ‘migrant’ centric, to fit with INZ’s overall settlement outcomes have since shifted to focusing on the ‘employer’ and what is in the employer’s best interests. The irony of course being that in 2018 employers complained that INZ needed to make it easier for them to employ migrants (under the existing policies) and now, the new policies do not seem (at first glance at least), like a solution to the problem.

Mahafrin Variava mahafrin@thlaw.nz is an immigration solicitor with Turner Hopkins and has been in the industry for four years. She attributes her success with clients to her migrant background which has been an asset in her ability to transcend beyond cultural barriers to provide a seamless service.