Immigration: Employment Infringement Regime

Effective 11 April 2024, Immigration New Zealand, introduced a standdown system for employers who have committed certain immigration offences, including recently introduced immigration infringement offences. This article summaries the key issues employers need to be aware of.

Infringement Offences

MBIE officials can levy an infringement fee (effectively, a fine) at an employer for one of the following designated infringement offences:

       i.          allowing a person who is not entitled under the Immigration Act 2009 to work in the employer’s service to do that work.

      ii.          employing a person in a manner that is inconsistent with a work-related condition of that person’s visa.

     iii.          failing to comply with a requirement to produce wages and time record, or leave record kept in accordance with the provisions of any Act; or any other document relating to the remuneration or employment conditions of a supported employee (for example, an employment agreement) within the time period required.

Infringement Fee

Where the employer is an individual, the maximum infringement fee for offences (i) and (ii) above, may not exceed $1,000 for each employee in respect of whom an employment infringement offence is being, or has been, committed. That fee rises to $3,000 when the employer is a body corporate or another entity. The maximum infringement fee for offence (iii) above, is of $1,000.

Payment of Infringement Fee

If an employer is served with an infringement notice, they need to consider their position carefully. One option is to simply pay the prescribed fee within the timeframes, which will result in no further enforcement action being taken by MBIE.

It is, however, important to note the difference between enforcement action by MBIE officials and actions that can be taken by immigration officers in respect of an employer’s accreditation. In that, while the payment of the infringement fee will result in no further enforcement action, INZ could still suspend or revoke an employer’s accreditation, impacting on their ability to hire migrants on AEWVs. The employer will also be placed on the published standdown list (see below).

Disputing Infringement Offence

Alternatively, an employer could write to MBIE within specified timeframes to:

a)     ask MBIE to consider any matter relating to the circumstances of the alleged offence; or

b)     deny liability for the alleged offence and request a court hearing; or

c)     admit liability for the alleged offence, but have a court consider written submissions as to penalty or otherwise.

If the employer denies liability but the court finds the employer guilty of the offence, the court is entitled to take into account any maximum fine for the offence, and not just the infringement fee. Also, if the court finds the employer guilty of the offence, costs will be imposed in addition to any penalty.

The maximum fine that can be imposed by the court in relation to an employment infringement offence listed at (i) or (ii) above is double the amount of the infringement fee. If it relates to an offence listed at (iii) above, the maximum court penalty is $2,000.

Admit Liability, but….

Instead, an employer can admit liability for the alleged offence, but ask the court to consider submissions as to penalty or other circumstances. Thereafter, the court will decide on the penalty to be imposed, as above.

Standdown List

When an infringement notice is enforced, either by accepting liability by paying the fee or by court order, employers will automatically be placed on a standdown list maintained by MBIE and accessible by immigration officers when determining visa application linked to the employer.

An employer will have a 6-month standdown for a single infringement notice. Each subsequent infringement notice incurs a further standdown of 6 months. The maximum standdown for multiple infringement notices issued at one time is 12 months. There are some variations to this depending on the offence so please do not take this as exhaustive.

The standdown list is published by MBIE and includes the names of employers who have been convicted of an offence against the Immigration Act 2009 (the Act) or issued infringement notices under the Act and details related to the infringement.

Conclusion

The new infringement regime and standdown list have serious consequences for employers, not only in the fees payable but the ramifications for being unable to hire migrants and the potential for reputational damage.

D&S Law is well-placed to advise and act for employers on all matters related to infringement offences. We are also available to assist employers auditing their systems and processes to minimise the potential for an infringement notice being served in the future. Please contact us if you wish to discuss.