Compliance with employment and immigration law

At a glance

Employers (including associated persons) who support a visa application or provide an offer of employment must have a history of compliance with employment and immigration law. [R5.110] Non-compliance may lead to the employer being placed on a non-compliant list maintained by MBIE, and visa applications supported by those employers will be declined. [R5.110] Immigration officers can also request further information where an investigation is pending.

Definition

Compliance with employment and immigration law means meeting the requirements of the following legislation: [R5.110]

• Accident Compensation Act 2001
• Employment Relations Act 2000
• Equal Pay Act 1972
• Health and Safety at Work Act 2015
• Holidays Act 2003
• Minimum Wage Act 1983
• Parental Leave and Employment Protection Act 1987
• Wages Protection Act 1983
• Immigration Act 2009

Evidence of non-compliance with employment law includes being on MBIE's list of non-compliant employers maintained under Appendix 10. [R5.110] Employers with an investigation or case pending may be asked for additional information. New employers may be considered compliant if they are not on the list, demonstrate sound HR policies, and there is no other information indicating non-compliance (e.g. influence by a person on the stand-down list). [R5.110]

Evidence of non-compliance with immigration law includes being on MBIE's list of non-compliant employers maintained under Appendix 18. [R5.110] Again, pending investigations can trigger further inquiries. New employers can establish a history of compliance if they are not on the list and no other evidence suggests non-compliance by them or associated persons. [R5.110] Additionally, an employer may be considered non-compliant if they or an associated person have been convicted of an Immigration Act 2009 offence, even if that conviction did not result in inclusion on the MBIE list. [R5.110]

Application in decisions

Immigration officers must assess an employer's compliance history when deciding any visa application that is supported by or includes a job offer from that employer. [R5.110]

• If the employer is on either the employment non-compliance list or the immigration non-compliance list, the visa application will be declined. [R5.110]
• If the officer is otherwise not satisfied that the employer meets the compliance requirements, the application will be declined. [R5.110]
• Breaches that led to listing on a non-compliant list may still be considered even if the employer is no longer on the list. [R5.110]

For Skilled Migrant Residence applications, SR2.1.10 explicitly reinforces that the employer and the applicant's employment must comply with all relevant employment and immigration laws. [SR2.1]

Interpretation & edge cases

• Associated persons: The compliance requirement extends to any person associated with the employer who can influence the recruitment, employment, or supervision of workers. [R5.110]
• New employers: Can demonstrate compliance through sound human resources policies and the absence of red flags. [R5.110]
• Pending investigations: INZ may request further information to determine compliance status. [R5.110]
• Past misconduct: Non-compliance that occurred in the past, even if the employer is no longer listed, may still be taken into account when assessing compliance. [R5.110]
• The specific stand-down periods and rules for inclusion on the non-compliant lists are set out in the linked concept pages for employment standards and immigration non-compliance.

Citations

• R5.110 — Compliance with employment and immigration law
• SR2.1 — Assessment of employment