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The Hidden Pitfall: Why Removing The 90-Day Trial Undermines Accredited Employer Reforms

By Aaron Martin, Principal Lawyer at New Zealand Immigration Law

In response to ongoing investigations of exploited migrant workers, Immigration Minister Andrew Little recently rolled out new measures designed to protect exploited migrant workers. While many of these changes are commendable, there's a glaring oversight that's slipped under the radar: the removal of the 90-day trial period for employers under the Accredited Employer Work Visa scheme.

This change has serious unintended consequences for both employers and migrant workers. Let's unpack why this is far more than a bureaucratic tweak—it's a ticking time bomb in New Zealand's employment law.

The Real Impact on Employers

What does this mean for employers? In essence, you're playing a high-stakes game. You hire someone based on their credentials, and they land here in New Zealand. Then you find out they're not quite who they claimed to be. Previously, the 90-day trial period was your safety net. But that net has just been yanked away.

Let's get real for a moment. This happens often, and it's not always a case of exploitation. It's part of the inherent risk of hiring someone you've never met, from a country you've never been to.

In Australia, they manage this risk by requiring a practical assessment of skills as part of the immigration process. Here, we're practically blindfolded. The 90-day trial was our only practical measure to manage this risk, and now it's gone.

The Worse Alternative

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So, what's left? Well, the alternative isn't just bad; it's worse. The only legal avenue now is to fire someone for misrepresentation. The migrant worker can then turn around and claim unfair dismissal, arguing that they didn't misrepresent themselves and that you've jumped to incorrect conclusions.

This isn't just risky; it's a minefield, especially for small businesses. You've got to navigate this landscape without the map that was the 90-day trial. You need top-notch employment law advice now, more than ever, to understand what to do if a migrant worker isn't fit for the role.

Major Flaws in the Accreditation System

Let's consider who's being painted as the villain here. The government has set up an accreditation and job-check system that is open to abuse.

It's astonishingly easy to exploit the current system. You could be a one-man-band business, operating for just two years, and still get approved to bring in five overseas workers.

When you do a job check, they don't ask you how you're going to pay these people.

No one questions the financial stability of your business.

They don't even investigate whether those job vacancies are genuine.

You can get approval to bring people into jobs that might not even exist! And who checks this? No one—absolutely no one.

A Half-Baked Response

Quick to impose difficulties on employers, the government will enact new policies as early as next month. They pin the blame on employers, citing employment termination within the 90-day trial as a tool for exploitation. However, this claim distorts the truth.

Most people featured in recent news stories didn't even have a genuine job waiting for them in New Zealand. So, the issue isn't about being fired during the 90-day trial; it's about job offers that were never real to begin with.

Yet, what's the government's solution? A vague promise of a "review."

They seem more inclined to handicap honest employers based on unfounded perceptions of abuse, rather than tackle the root of the issue. What's more, they sidestep mentioning an existing visa for workers dismissed within the 90-day period. The catch? It's a visitor visa, not an open work visa. A simple rule change could have addressed this concern.

Missing the Forest for the Trees

The government is changing employment laws based on dubious claims of 90-day trial abuse, missing the real issue: a flawed work visa system. The new measures are akin to placing cushions at the bottom of a cliff—they don't solve the root problem but merely mitigate its consequences.

I've spoken to recruiters who say overseas agencies supplying qualified nurses are exiting the New Zealand market. These nurses aren't worried about the 90-day trial; they're concerned there might not even be real jobs awaiting them. This has damaging implications for New Zealand's reputation in the international labour market.

Minister Little's recent announcement is reactive and ill-considered. It adds complexity and risk for honest employers, without fixing a system that's ripe for abuse.

Further information:

Aaron Martin – Principal Immigration Lawyer at New Zealand Immigration Law

Aaron Martin is one of New Zealand’s most highly regarded immigration law practitioners. He has extensive experience in assisting individuals, SMEs, and large multinational corporations.

With over 25 years in general legal practice and a thorough working knowledge of relevant tax law and commercial law, Aaron is skilled in assisting investor-category applicants and migrants planning to establish a business in New Zealand.

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