A Temporary Change in Location: Employers of Work-Visa Holders Beware

Scenario: A multinational engineering firm advertises an Engineering Technician vacancy on Seek and LinkedIn for a few weeks. The advertisement specifically states that the role is Auckland-based.  After the employer is unable to find anyone suitable from the local labour market, the role is offered to an overseas candidate and the issued work visa only allows the candidate to work for the employer in Auckland.  Due to winter sickness, the Auckland-based employee is required to urgently work out of the firm’s Christchurch-based office so it can undertake service work for the employer’s South Island based clients for three days.

Technically, Immigration New Zealand (INZ) would consider this employee to be working in breach of their visa conditions.  As a result, the employee’s immigration status could be jeopardised and the employer could be liable for significant penalties under the Immigration Act for failing to employ the temporary visa holder in accordance with the conditions attached to their visa.

We believe INZ’s approach in situations like this is not practical, but nonetheless is the correct rule that applies. It should therefore be noted by employers that a labour market check can be undertaken for multiple regions under a single visa application; and a visa issued accordingly valid in all of those regions if it is preferable for that employee to work out of those locations.  We have secured many work visas that are valid for use in multiple locations, not just where the employer is based.

In addition, Accredited Employers should make sure that their employee’s are issued work to residency visas that allow employment in any location in New Zealand, because they are not labour market tested and therefore the location of permitted employment should not be restricted. Often we are required to remind INZ of this, so if your employee’s are issued these types of visas  and you may wish them to work throughout New Zealand, contact INZ to have this adjustment made.

Workplace Law Team

If you have any queries in respect of the above, or any other workplace law issues, please contact a member of Lane Neave’s Workplace Law Team:

Employment: Andrew Shaw, Fiona McMillan, Gwen DrewittMaria Green,  Hannah Martin,  Alex Beal, Giuliana Petronelli, Ana Fruean, Elise Wilson, Abi Shieh
Immigration: Mark Williams, Rachael Mason, Nicky Robertson, Hetish Lochan, Daniel Kruger, Julia Strickett, Rita Worner, Lavinia Shanks, Winnie Chen, Ken Huang, Sally Stone,  Shi Sheng Cai (Shoosh), Josh TempletonMary Zhou, Sarah Kirkwood, Isaac Huang, Sati Ravichandiren, Cameron Hart, Lingbo Yu
ACC: Andrew Shaw
Health and Safety: Andrew ShawFiona McMillan

Contacts


Mark Williams
Partner, Lane Neave

t +64 3 353 1063
m +64 21 222 2363
e mark.williams@laneneave.co.nz

 

Rachael MasonRachael Mason
Partner, Lane Neave

t +64 3 372 6323
m +64 21 1306 540
e rachael.mason@laneneave.co.nz