Immigration Alert – 90-day trial period removed for Accredited Employer Work Visa holders

The media has recently highlighted various cases of migrant exploitation under the Accredited Employer Work Visa (AEWV) scheme.

While most instances of exploitation remain under the radar, Immigration New Zealand (INZ) are actively investigating credible leads and complaints.

In response, the Government has also announced several policy changes to increase protection and support for migrant workers. This includes removing the 90-day trial period for new hires on an AEWV.

Under sections 67A and 67B of the Employment Relations Act 2000, businesses with less than 20 employees can enter into employment agreements containing a trial provision for a period not exceeding 90 days. During this period, the business can dismiss the employee without the employee being able to raise a personal grievance premised on unjustified dismissal.

From 29 October 2023, employers hiring under the AEWV scheme must commit to not using the trial period in their employment agreements. Importantly, a job check application may be declined if the submitted agreement contains a trial period. This requirement will also flow into a new employer accreditation standard where breaches could lead to loss of accreditation.

INZ have also clarified that this requirement will not be applied retrospectively and will not affect already-approved Job Checks or migrants who already hold or have applied for an AEWV.

The 90-day trial period has previously been criticized for giving unbalanced power to employers. On the flipside, the provision has also been praised for mitigating the risk of an employer hiring someone who has misrepresented themselves and are not suitable for the role on offer. This is especially common with overseas hires and the trial period provision has provided significant protection.

Removing the trial provision places the risks of hiring firmly on the employer. Employers must ensure that they are careful and meticulous with their recruitment and dismissal processes as they navigate increasing complexity and risk within the current migrant employment landscape. It is also common knowledge that there are several weaknesses in the AEWV scheme which have been subject to misuse throughout New Zealand.

If you are affected by this change or simply require more information, please contact our Immigration Specialist, Hetish Lochan at hetish@toddandwalker.com or 03 441 2743.