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Posts in category: Work Visa

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'Employer Focussed' Work Visa Explained

Posted by Iain on Sept. 20, 2019, 3:19 p.m. in Work Visa

 

The new, so called ‘Employer led work visa’, set to replace 6 different types of work visa by 2021, was announced this week and has different interest groups either applauding or frothing at the mouth.

As usual much has been written about the changes and as usual most of it is garbage expressed by those who don’t know terribly much about that upon which they pontificate. Migrant groups, unions, Government - everyone has commented as far as I can tell except employers themselves who have the most to gain or lose when we are talking about filling vacancies in the labour market.

My analysis suggests little is actually changing - as usual - a lot of smoke and mirrors and political posturing. The Government is spinning this as making it easier for '30,000 businesses to recruit migrants'. I doubt that for 80% of work visa applicants anything is about to get easier - quite the opposite. Ditto the overwhelming majority of NZ employers.  As always what isn’t being said is as interesting as what is.

To be clear there has been two work visa change announcements this week which has added to the confusion - both are unrelated to one another.

1. Talent Visa for an accredited employer — This only sees an increase in the salary required to obtain a Talent Visa for an ‘accredited’ employer, from $55,000 per annum currently to $79,560 per annum. This change takes effect on or about 7 October. Employer accreditation will be limited to two year periods (renewals of late have been up to 5 years). That’s as far as those changes go. There is still a Residence from Work pathway for those on Talent Visas and this is not being absorbed into the new ‘employer led’ work visa.

2. Employer led/focussed work visa - announced but still under ‘design’ - Government speak for we have an idea but still trying to work out how to roll it out. I wrote about this back in April as I assisted an industry group to make submissions on the proposed changes to this more employer focussed approach to work visas which adds another layer of complexity to what we already have for I’d suggest 80% of work visa aspirants.

All employers will be required to become ‘accredited’ - whether it takes that name remains to be seen given it will no doubt cause confusion with the current accredited visa [see above] following an application whereby they are vetted and deemed responsible and trustworthy enough to employ migrants. This is new and another level of complexity.

Once and only once (so how quickly INZ can process these applications will be critical) they have this special status can they then offer positions to migrants. If they are in regional New Zealand (currently defined as everywhere but Auckland) and the migrant is going to be paid an effective hourly rate of at least $25 per hour (a pandora’s box if ever there was one) then the requirement for a ‘labour market test’ by which the employer must prove they have tried and failed to recruit locally, will be dropped.

The labour market check will remain however for jobs not on skill shortage lists in Auckland, Hamilton, Wellington, Christchurch and Dunedin (the logic of which totally escapes me given I imagine 80% of NZ job vacancies are in one of those five major cities). Why Tauranga is not on that list is as surprising to me as why Dunedin is…..

By and large then, for the significant majority of skilled migrants seeking residence with a job offer, the status quo applies on proving you are not denying a New Zealander a job opportunity before you will get your work visa. Resident Visas already demand a salary minimum of $25 per hour.

For those under that $25 per hour threshold in the ‘regions’ (to whom residence is not a possibility so we are only talking short term workers staying for a finite period of time before heading home), the labour market test will remain. This appears to provide greater focus on the lower end of the labour market on farms and orchards where migrant ‘exploitation’ (a topic this Government is obsessed about despite publishing little evidence it is a problem) is more likely to occur.

The strange thing is if, as I suspect, much of the motivation for these changes is being driven by the Government’s obsession with ‘migrant exploitation’, when it happens, however much it happens, it seems an awful lot takes places in ethnic restaurants, liquor and convenience stores across the major cities and Auckland in particular….not small town or rural New Zealand.

What this will of course do is to prompt employers around the margins of the $25 per hour threshold to offer migrant workers pay rises (no bad thing if you are a migrant). If they have to pay ‘lower end’ migrants more to get work visas without a labour market test I imagine part of the Government’s thinking is that maybe that will encourage more employers to try harder to find that young Kiwi and employ them instead (no bad thing if you are a young enthusiastic New Zealander looking for a start in life picking strawberries).

I would say beware all those with job offers under that $25 per hour of income though, where I imagine employers will be forced to better demonstrate an inability to train up locals for the position being offered to the migrant. It is policy today that all employers, apart from those offering jobs to those on a regional or long term skill shortage list, to demonstrate they cannot train a local for the role. I wouldn’t say this criteria has been ignored but it certainly appears to have been glossed over in most assessments we see done by the Department in recent years.

I can imagine for those earning less than $25 per hour and even possibly for those earning over that, the Department will start issuing ‘letters of concern’ that locals should be able to be trained and that employers aren’t trying hard enough to up skill and train locals.

All of which presumes there are locals who are available to be trained.

Ask any business that offers work requiring hard yakka under a burning summer sun and/or accumulating grime under fingernails like horticulture or agriculture, how easy it is to attract young Kiwis to take up these sorts of roles. Or the small town workshop that offers apprenticeships.  They will tell you that for the most part it is impossible - many youngsters are simply not interested or if they start training they so often don’t see it though. Something like 74% of all Government subsidised apprenticeships in this country are never completed. In the horticulture sector, already growers are petrified that this year, like last, their crops will rot in the ground because there is no one to pick the fruit.

The truth is NZ does not have an unemployment problem - those that are unemployed today are by and large unemployable for a variety of reasons. It is hard to understnd then why even more layers of red tape are being added to the process to fill vacancies with migrants.

There will no doubt be other unintended consequences that such changes always unleash and which will become apparent over the next 18 months or so as the new policy is rolled out.

Stay tuned.

Until next week

 

Tags: work visa

David Versus Goliath

Posted by Iain on Sept. 13, 2019, 11:36 a.m. in Work Visa

I’d be lying if I said this job doesn’t sometimes feel like I am living a modern version of the biblical David and Goliath story. Every day, my team and I take on the might of the state. We deal with an Immigration Department culture that is often disinterested, dismissive, inexperienced, largely leaderless (they call it empowerment, probably) and a bunch of bureaucrats that display a level of arrogance that is at times shocking.

If we weren’t in the ‘people’s futures’ games it might almost be comical. But every decision made by INZ affects real people.

If we didn’t have an excellent relationship with a number of very senior Managers (of branches and in the national office) I confess I’d probably have given up years ago. I do not know how consultancies and law firms without these higher level relationships stay sane (or in business).

There’s something in me and my team that feels compelled to fight for the powerless little (foreign) guy and I suspect that is why, over 30 years, I’ve led a team with a visa success rate of over 99%.

This past week has been one for the ages in that story.

It all started with a client’s work visa. Twenty years a policeman in South Africa secured skilled employment in New Zealand as a security company Operations Manager. Immigration rules require an applicant’s work history to be ‘relevant’ to their NZ job. We thought the connection was pretty obvious but as we do with every visa application we provided a very helpful, carefully crafted legal argument explaining the connection, so whatever desk it landed on, we had in effect, done the Immigration Officer’s thinking for them. We explained why the application and evidence met the rules.

None of us could have predicted what happened.

Until Christmas 2018, 95% of our work visa applications were receipted, processed and approved within 4-5 weeks, many in half that time. As I have written about previously the Department has descended into processing chaos this year and for many work visa applicants, processing times have blown out to four months or more (thankfully, not many of our cases).

One of the legion of new and inexperienced officers upon whose desk this application landed could not see, and could not be persuaded to see, the connection between policing (protecting the public and property) and security work (protecting property) and declined the application after four months… with gentle prodding from us during that time.

We remained patient, nudging and pushing in an assertive but not aggressive way during that time. The officials kept delaying, trying to ignore us and in the end, incorrectly declined the application.

Things got really interesting last week when we sought a reconsideration given the decision was patently wrong. We received what can best be described as a ‘f*** you’ response - by far the most aggressive and inappropriate email from an Immigration Manager I had seen in 30 years. To my staffer, in charge of the case who is by any definition a mild mannered and very polite Solicitor/Adviser, it was a frightening piece of correspondence. When my senior colleague, Paul, challenged the author, he received a reply that threatened him (and the consultant leading the application) with a complaint to our industry regulator, the Immigration Advisers Authority, if in effect, we didn’t back off and take the garbage ‘service’ INZ was dishing up.

Red rag to this bull I can tell you! I can deal with Government incompetence (it keeps me in business) but I am damned if I am going to have my staff threatened for doing their job.

Most immigration advisers would have backed off and backed down in the face of such aggression. I cannot overstate the inappropriate tone and content of the correspondence by the Manager who was, it seemed to us, defending the indefensible processing delays and the error INZ made in this case.

His mistake was not knowing us. IMMagine is no ordinary immigration consultancy.

My colleague Paul took on the Manager in a polite, professional but forceful way. For us to be told when INZ had got this wrong that the client could get in the queue with all the other reconsiderations (I suspect they are piling up because there are so many incorrect decisions) for another 4-5 weeks till INZ got round to making a decision, was unacceptable to us. We had not got this application wrong, it was the Department that got it wrong. We just needed an officer who understands the rules to look at it. This manager didn’t give a damn about getting it right - I suspect because he too doesn’t know visa criteria - so decided to threaten us instead.

I got involved and went even higher than Paul had - in fact, all the way to the very top of the Department and to the Deputy Secretary himself.

Within 24 hours the work visa was approved and issued, no questions asked.

There has been a (very open, frank, professional and polite) discussion with this particular Manager’s line boss who has unreservedly apologised.

We have also received a written apology from the top of the immigration tree in Wellington. Senior managers have confirmed the attack levelled at my company and my colleagues by their Manager was, to put it mildly, inappropriate.

In sharing this I am not gloating. I cannot tell you how emotionally draining and time consuming this sort of thing is. We expect disagreements with immigration staff, it’s the nature of poorly drafted and vague rules.

None of us want conflict with these officials however. We defend (and advocate for) the little foreign guys - the little guys that New Zealand employers need to help fill jobs that we cannot fill locally. The little foreign guys that help our economic wheels keep turning in the face of ever stronger global economic headwinds. The little foreign guys that are treated like some sort of enemy by a paranoid, dysfunctional and at times a dismissive bureaucracy.

As I have been writing about for months INZ has descended into a state of utter processing chaos and has continued to blame applicants, employers, Advisers and lawyers, the labour market, increasing visa application numbers (because there are so many jobs we cannot fill locally) and they have done everything but look in the mirror for solutions. The deeply concerning thing for me is that some have now started to crack under that pressure and have started lashing out as the professional Consultants like us who call them to account.

The Manager learned we will not be cowed by threats. His bosses already knew that.

Our client got their work visa. No matter how long it takes, they always do.

What was different this time was the naked aggression and threats levelled at a customer (us) which reflects I believe a Department coming apart at the seams.

I even discussed the situation with the IAA Registrar himself who at my request reviewed our correspondence with the Department over the past week and confirmed in his view we had acted professionally and appropriately.

I suspect it might be something of a watershed moment.

It sounds immodest, and I do not wish it to be because my team is a bunch of highly professional and knowledgeable, but quiet achievers, but when an application is filed accompanied by a legal argument from IMMagine Australia and New Zealand, I demand the respect our reputation and history deserves. Those immigration officers and their managers that have been around our work for a long time, know it is high quality, the people we represent are top quality and honest, we do not file frivolous applications and in the end the visas are always granted because we know our stuff. Pure and simple.

Our weapons are not slingshots but expert knowledge and while Goliath was felled this week, it saddens (and tires) me that a work visa application took four months, an incorrect decline decision, a threatening series of emails from an inexperienced and arrogant Manager and the intervention of the Deputy Secretary of the Department to secure it. Something that could have taken 30 minutes descended into threat and farce.

Our clients seldom appreciate what goes on behind the scenes to secure what look like ‘straight forward’ work and other visas. And we don’t scream these stories from the rooftops because this is our job and we are well rewarded (financially and emotionally) but this one needs the light of publicity shone upon it as a warning to applicants and immigration officials alike - INZ doesn’t limit this sort of behaviour to us and someone has to make them accountable - migrants and we are ‘customers’, after all. Threatening and bullying your customers isn’t the best way of doing business.

Thank goodness it’s Friday!

 

Until next week


Work Visa Change Proposals

Posted by Iain on Jan. 25, 2019, 3:04 p.m. in Work Visa

This week I’ve been part of a group of Advisers pulling together a submission to take to government on the proposed changes to work visa policy.

I am never quite sure whether it is worthwhile making submissions to an ideologically driven government that has certain ideas in its political head not supported by any real evidence but I've decided to chip in anyway given the importance of this issue.

What is really disturbing about the proposals is they seem to be predicated on the misguided belief that there is rampant exploitation of migrants in the labour market and therefore employers look likely to be forced to apply for accreditation with the government before any work visas can be filed. In essence, prove you are a good employer. Accreditation effectively means the government trusts that employer to do what is right by New Zealand, New Zealanders and any migrants they might be allowed to employ. On paper it's not a bad idea but in 30 years of dealing with immigration matters a good idea given to a bunch of bureaucrats to operationalise normally ends in tears.

I would make two very strong points to government.

Show us the evidence that migrant exploitation in the local labour market is so rampant it requires an overhaul of rules that seem to have served New Zealand's interests without leading to exploitation of migrants pretty well for 30 years. Show us the evidence!

I am not suggesting there aren't isolated issues but my advice to the government would be to focus on those industries including hospitality, farming, tourism and aged care. Do not make it harder for the vast majority of employers to fill vacancies in a labour market where we are creating thousands of jobs a month more than we can fill locally.

One of my suggestions as part of the submission process is that the government knows full well which industries and what sorts of businesses see isolated issues with ripping off of migrants. Surely, rather than taking the sledgehammer to the walnut and imposing an onerous process on the 95% of employers who act with honour and integrity, government should come down hard on, or perhaps create a separate work visa process for those industries where some credible independent evidence of exploitation might be proven.

The reality is any employer looking to support a work visa application today is required to present a lot of information about their workplace practices, employment history, financial viability and sustainability. Compliance checks I would argue are already rigorous enough to act as a disincentive to those employers who might be inclined to either rip off the system or a migrant.

Although it is lost on governments of our current persuasion, adding a disincentive to the significant majority of good employers who appreciate that the only real asset any of them have is their staff, is insane and an absolute overreaction.

The second point is that the immigration department is great on overpromising and under delivering. No doubt they will sweet talk the government on their ability to process all of this in a timely manner which will keep employers happy, protect vulnerable migrants and deliver on the government’s misplaced obsession about protecting migrants from exploitation. B-S they will.

Most branches of Immigration New Zealand today are quoting eight weeks before a work visa is even allocated for processing and another 6 to 8 weeks to process the actual visa. Before any of IMMagine's clients freak out the overwhelming majority are processed far more quickly than that because we know which phone numbers to call.

There is no way if these processing times become entrenched, or added to, because employers will have to file separate accreditation applications before a work Visa can be filed, that employers are going to employ migrants in the numbers they are today.

New Zealand's unemployment rate today is 3.8%. One of the discussion points that came out of this week’s meeting of Advisers, is that of the 110,000 odd people who are seeking work (apparently) the majority are basically unemployable. Interestingly this is not just because they lack the skills to fill the jobs being created but primarily because of mental health or substance abuse issues.  

What is clear is that skilled unemployment in New Zealand is effectively zero if not negative. We are still 40,000 construction industry workers short if you can believe the government. We are still several thousand Teachers short.

Why does the government want to make it harder for Schools to employ teachers or small construction companies to employ carpenters, plumbers and electricians?

The proposals start to look a lot like what Australia does which has led to a very rapid decrease in the number of employers being willing to play the work visa game and which impacts directly on the economic growth and future prosperity of Australia. Like New Zealand, Australia has a low unemployment rate and this was trending down even when work visas were trending up. There is almost no link between the two. We should not make the same mistake.

In the discussion paper the Minister, without quoting or providing any evidence to back it up is of the belief that there is "some evidence" that migrants displace local workers. It is worth noting the same discussion paper also quoted international studies which state the exact opposite but why let a few facts get in the way of ideology?

Again, to the Minister if he might be reading this, show us the evidence. I have never in 30 years of practicing as an immigration adviser come across a single employer who does not want to employ a New Zealander first. There is also no evidence I am aware of, given our rigorous and wide ranging legal and other protections, that migrants are pushing down local salaries or incomes.

The current Government cabinet is full of Ministers who are either ex union officials or people who have never run their own business. They are well-intentioned people who do not understand the realities of making sure that there is one dollar more in the bank account at the end of the week than there was the beginning. They seem to be people who believe that all employers see their staff as chattels to be used and abused without understanding that without those workers the boss doesn't have a business.

I know I am going to receive a flood of emails now from current and potential clients asking me if New Zealand is closing the door to skilled workers. To them I would like to say no, that is not the intention, however as they say the road to hell is paved with good intentions.

The immigration system is full of moving parts. Every time you tinker with or change wholesale one part of immigration policy it affects some other part of the system in a way most of the bureaucrats and politicians simply don't understand or cannot predict. Typically, in this discussion paper, there is no acknowledgement of that. Further illustration to me, if any was required of an obvious lack of understanding, on the predictable impacts these proposals will almost certainly have on the skilled migrant category if they go through. If we now create further disincentives for employers to employ migrant workers then the government will continue to undershoot its skilled migrant residency targets which are already 30% below what the government claims they want.

The government is already, rightly, coming under severe political and polling pressure for promising to build 100,000 "affordable" houses in its first 10 years in office. Anyone with three brain cells knew it was either a lie or they were on drugs when they came up with the policy. They said they would build 1000 in the first year. So far they haven't delivered a third of that. Although there are a number of reasons why it's not possible, one of the most significant is that employers simply cannot find enough skilled workers locally to fill these roles. They rely on migrants. If the government is going to make it harder by creating disincentives to those employers to recruit and employ migrants there'll be even less houses built than the government promised. And they might just end up with one term and power.

The fact that we need skilled migrants and we let employers effectively determine who gets in by making the migrant find skilled work, making the process more complex, onerous and time-consuming for the employer when the overwhelming majority of them demonstrably value all their staff equally, whether migrant or local, seems to be lost on these politicians and shows how out of touch they really are.

Until Next Week


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