Recruiting from overseas

by The FindLaw Team

Where there is a scarcity of people within New Zealand who have the skills and experience to fill vacant jobs, employers may look to find employees from other countries.

There are both benefits and drawbacks for employers who wish to find workers from outside of New Zealand. For example, the pool of suitable candidates is likely to be much larger and potential employees may have broader experience and knowledge than local job candidates.

On the other hand, there are practical issues with recruiting someone who lives in a different country, it may be difficult to compare overseas qualifications with the New Zealand equivalent, and there is a risk that someone who moves to New Zealand from overseas may struggle to settle far away from friends and family or fit in with the culture and so return to their home country.

Employment agreements

Employment agreements for an employee coming from overseas must contain the same minimum clauses that are required for any other employee working in New Zealand.

There are additional clauses that the employer may want to include: it’s a good idea to get legal advice before sending a draft employment agreement.

Examples of the additional clauses that may be included are:

  • Relocation costs. These are likely to be an important element of any employment agreement where the employee is recruited overseas. By setting out precisely what relocation costs the employer will pay, the parties are more likely to avoid a dispute. This clause may include a bond, whereby if the employment was to end within a certain time limit, the employee would be required to pay back some or all of the relocation costs.
  • Jurisdiction. For the sake of clarity, the agreement should state the laws of which country the employment agreement is made under. For example, “This agreement shall be construed and take effect in accordance with the laws of New Zealand”.
  • Repatriation expenses. To avoid doubt, the employment agreement could set out who will pay for the repatriation expenses if the employment relationship is terminated and the employee wishes to return to his or her home country.

 

Work visas

An employee who is not a New Zealand citizen or resident must hold a work visa that allows them to carry out the work intended (unless they’re Australian). Work visa may be limited to allow employment with only a named employer or a particular industry, and will be valid for a specified period of time.

Note that people who have a working holiday visa are prohibited from taking on permanent employment until the relevant permits have been obtained. Depending on which country’s scheme the person is under, they may also prohibited from working for any one employer for more than 3 months.

Information on work permits is available from Immigration New Zealand.

Employer’s responsibility

Under the Immigration Act 2009, employers commit an offence if they employ a person knowing that this person is not entitled to be employed. An employer is deemed to “know” that a person is not entitled to be employed if at any time in the previous 12 months an immigration officer has told the employer that the person is not to be employed.

It is a defence for employers who employ someone who is not entitled to work in New Zealand if the employer:

  • Didn’t know that the person was not entitled to do the work; and
  • Took reasonable precautions and exercised due diligence to find out whether the person was entitled to work.

Merely “not knowing” the employee wasn’t entitled to work is not a defence, and the provision of an IR330 tax declaration form is no longer a “reasonable excuse”.

If an employer finds out that an employee that it already employs is not entitled to work, then it is not an offence for the employee to continue to work during the minimum notice period set out in their employment agreement.

To help employers find out whether prospective employees are entitled to work in New Zealand, the Department of Labour has launched an online database, called VisaView .The website can be searched by using the potential employee’s surname and passport details. Employers must register to use the site first.

Exploiting employees who are working illegally in New Zealand, for example by paying them less than the minimum wage or not paying holiday pay, is an offence under the Act.

Giving immigration advice

Only licensed immigration advisers can give “immigration advice” under the Immigration Advisers Licensing Act 2007.

This means that HR professionals and others who may recruit workers from overseas should be careful that they do not give immigration advice (unless they are licensed to do so).

“Immigration advice” is defined as “using, or purporting to use, knowledge of or experience in immigration to advise, direct, assist, or represent another person in regard to an immigration matter relating to New Zealand, whether directly or indirectly and whether or not for gain or reward”. It does not include providing information that is publicly available, eg information from the Immigration New Zealand website.

Recommending what sort of visa a prospective overseas employee should apply for is likely to constitute “advice” under the Act, and will therefore require a licence. However, suggesting that someone consults the Immigration New Zealand website for information on visas would not be “advice”.

Case example

The case of Nelio v New Zealand Institute of Fashion Technology Ltd ERA Auckland AA371/08, 30 October 2008, shows that employers should not assume an overseas qualification is the equivalent of a similar New Zealand one.

When she was employed as a tutor by the Institute, Nelio had signed an employment agreement that included a clause stating that all representations she had made about her qualifications and experience in applying for the position were true and complete. Nelio’s resume included a reference to a diploma in tailoring, awarded by a university in Romania, “following 6 months of full-time study”.

After she began teaching at the Institute, concerns arose about her work and, on talking to Nelio, the Institute’s directors came to the conclusion that her diploma was not equivalent to a New Zealand diploma of tailoring. They then cancelled her employment agreement.

The Employment Relations Authority noted that the employer had made assumptions, and failed to ask some basic questions during its interview process, before offering Nelio the job.

Nelio was summarily dismissed for what was, effectively, the employer’s inadequate interview and checking process. Her dismissal was unjustified. Nelio was awarded 2 month’s lost wages and $5,000 compensation for humiliation, loss of dignity and injury to feelings.



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