Rules for non-compliant employers (employment standards)

At a glance

An employer is placed on a non-compliance list maintained by the Ministry of Business, Innovation and Employment (MBIE) when they breach minimum employment standards. [A-appendix-10-rules-for-non-compliant-employers-employment-sta] Once on the list, the employer is subject to a stand-down period during which they cannot support visa applications for migrant workers. The length of the stand-down depends on the enforcement action and the severity of the breach.

Definition

An employer is considered non-compliant when:

• they have been issued an infringement notice by a labour inspector; or
• a penalty has been ordered against them by the Employment Relations Authority or the Employment Court for employment standards-related breaches. [A-appendix-10-rules-for-non-compliant-employers-employment-sta]

All types of legal entities can be non-compliant employers, including companies, individuals, sole traders, and partnerships. [A-appendix-10-rules-for-non-compliant-employers-employment-sta]

Enforcement actions and stand-down periods

The following table summarises the stand-down periods that MBIE applies when an employer commits employment standards breaches. [A-appendix-10-rules-for-non-compliant-employers-employment-sta]

Enforcement action	Stand-down period
Infringement notice	6 months for a single notice; each subsequent notice adds a further 6 months, up to a maximum of 12 months for multiple notices issued at one time.
Penalties ordered by the Employment Relations Authority or Employment Court	Up to $1,000 for individuals / up to $1,000 for body corporates: 6 months. Over $1,000 but under $10,000 for individuals / over $1,000 but under $20,000 for body corporates: 12 months. $10,000–$24,999 for individuals / $20,000–$49,999 for body corporates: 18 months. $25,000+ for individuals / $50,000+ for body corporates: 24 months.
Declaration of Breach (Employment Court)	12 months immediate stand-down. If a pecuniary penalty is subsequently ordered (under s142E Employment Relations Act 2000), the stand‑down increases to 24 months.
Banning Order	12 months added after the ban period ends if the banning order is less than 5 years; 24 months added after the ban period ends if the ban is 5 years or more.

Application in decisions

Immigration officers must treat the MBIE non-compliant employer list as authoritative evidence of an employer's status. [A-appendix-10-rules-for-non-compliant-employers-employment-sta] An employer subject to a stand-down will be unable to support work, residence, or other visa applications that require employer sponsorship during the applicable period.

Interpretation & edge cases

• Totality of penalties: When the Employment Relations Authority or Employment Court imposes penalties for a group of breaches without specifying an amount for each breach, the stand‑down is based on the total dollar amount ordered. [A-appendix-10-rules-for-non-compliant-employers-employment-sta]
• Maximum stand-down in one determination: An employer who incurs several penalties in a single determination or judgment will face no more than 24 months of stand-down at that time. However, any subsequent non‑compliance that triggers another enforcement action will result in a fresh stand-down. [A-appendix-10-rules-for-non-compliant-employers-employment-sta]
• Employment standards breaches are defined as breaches of:
  • specified sections of the Employment Relations Act 2000 (including ss 64, 69Y, 69ZD, 69ZE, 130, and ss 63A, 65);
  • the Equal Pay Act 1972;
  • minimum entitlements and payment provisions of the Holidays Act 2003 (including ss 81, 82);
  • the Minimum Wage Act 1983;
  • the Wages Protection Act 1983. [A-appendix-10-rules-for-non-compliant-employers-employment-sta]

Citations

• A-appendix-10 — Rules for non-compliant employers (employment standards-related non-compliance)