During the Covid-19 pandemic you are no doubt having to make some very important decisions about the future of your business. There will naturally be a focus on your cashflow and  for some people health and safety might be a priority but if you have migrant workers, we urge you to ask yourself, what your migrant workforce means to you and what you would do if you lost it.

In order to help you with your thinking, we have compiled a list of the most frequently asked questions we are receiving from the employers of migrant workers at  the moment

Is Immigration New Zealand open?

Immigration New Zealand branches are closed both onshore and offshore under level 4. There is a skeleton service operating which is prioritising border related issues and visas of essential workers. Immigration is not accepting hard copy applications such as Skilled Migrant Residency applications.

What happens if I have workers with visas expiring soon?

All temporary visa holders, whose visas expire before the 9th July 2020 have automatically been granted extensions until 25th September 2020. Anybody whose visas are expiring after this date will have to make a new visa application.

I want to hire a new employee who has a visa to work for another employer. Can I hire them, and will immigration give them a visa?

If the new prospective employee has an open work visa, they can work for you no problem. If the employee is on an employer sponsored work visa to work for another employer in the same job and location as you, they will need to apply for a Variation of Conditions. If the employee is changing job title and duties or changing location

I have to drop the hours of my migrant workers and/or cut wages. What are the implications?

There are two issues here. Under employment law, an employment agreement states the minimum pay and conditions an employee can expect from an employer. If you have to change the salary or the number of hours of an employee, you are required to have them agree to and then sign a letter varying the conditions of their employment.

In addition, under immigration rules, employees must adhere to the conditions under which their visa was granted. So, if the employee holds an employer sponsored work visa, they must be paid according to their visa conditions. Employer sponsored work visas also require that employees work a minimum guaranteed 30 hours per week. If the employee’s wages or hours drop below what is required then the employee will technically be in breach of their visa conditions, and the employer would too by employing a migrant worker who is in breach. Given this unprecedented situation, it remains to be seen how lenient the government will be around this.

I have two businesses. One is not doing very well so I want to transfer a migrant employee to the other company. Can I do this and does my employee need a new visa?

It depends. If your migrant worker is on an employer-sponsored work visa and your businesses are separate limited liability companies then your migrant worker will have to apply for a new visa to work for the other company. The type of visa they need will depend on their job duties and the location. If your employee is doing the same job in the same region, they can apply for a Variation of Conditions. If they are changing job title and duties or are changing region then they will need to apply for a whole new work visa, with proof of advertising proving there are No NZ citizens or residents available to do the job.

I have migrant workers and I need to make some staff redundant. How should I handle it?

Migrant workers are subject to the same employment terms and conditions as New Zealand citizen and resident employees. Therefore, any redundancy process you follow must apply to the migrant workers too. If your migrant employee’s visa is running out soon and they need you to sponsor them, you do have the option of not supporting their visa application and their employment will cease when their visa expires. If you do make your migrant employee redundant, remember to follow due process and pay out any holiday pay or redundancy entitlements

I have staff, whose visas are not expiring until next year, should I renew them early?

Due to an expected rise in unemployment, we are expecting the government to make it harder for employers to prove there are no NZ citizens or residents available to do a job. In fact, the labour market check through advertising may well be taken over by the government who will ultimately decide if there are New Zealanders available. This would be similar to what happened after the Canterbury earthquake. Our advice would be to apply now if applying for a three-year visa.

Can I get the wage subsidy for my migrant workers?

The short answer is yes. If your company meet the criteria to obtain the wage subsidy, then any work visa holders you employ, are entitled to the wage subsidy even if they are offshore.

One of my visa holders is offshore as the border is closed, can I make them redundant?

If one of your employees has gone offshore and you have not heard from them despite making significant efforts to contact them, they may be considered to have abandoned their employment. However, If the employee, through no fault of their own is stuck offshore and unable to return to work as the border is closed indefinitely, you may be able to demonstrate frustration of contract. This is different from a redundancy process but does require you to consult with them and take on board their feedback before making a final decision on their future employment with you.

We are an accredited employer with Immigration New Zealand. What happens if we drop the salary of our Work to residence visa holder below the $55,000 or $79,560 threshold? Will it affect their residency application down the track?

The short answer is yes. In order to apply for residency from work after working for an accredited employer for 24 months, the employee needs to show their salary met the minimum threshold for the full 24 months. It is not clear at this stage whether Immigration New Zealand will grant any leeway around this when it comes to employees applying for residency.

One of my employees is on an interim visa, can they continue to work for me?

An interim visa is granted automatically to a migrant where they have submitted a visa application before the expiry of their current visa, the visa has now expired, and immigration New Zealand has not yet made a decision on the application. An interim visa allows the visa holder to remain lawfully in the country and may or may not have work rights. People are allowed to work if the visa they have applied for is an employer sponsored visa and they were on an employer sponsored work visa when they submitted their application. People moving from an Open work visa to an employer sponsored work visa do not have work rights and must cease work until their new work visa has been approved.

One of my staff is on an open partnership work visa but their sponsoring partner has lost their job. Can my employee still work for me legally?

Technically speaking, if your employee’s partner loses their job and stops work, then their partner is in breach of their visa conditions. As a result, your employee would be in breach of their visa conditions and as their employer you would be in breach of your obligations as an employer.