New Zealand Immigration Update: October 2019
This advice is for employers looking to offer fixed-term employment to Working Holiday Visa ("WHV") holders.
Background
The Immigration Act 2009 ("IA") prevents a WHV holder from applying for a 'permanent position'. However the Employment Relations Act 2000 ("ERA") states that there must be genuine reasons based on reasonable grounds for offering fixed-term employment. This overlap often confuses employers wanting to employ a WHV holder.
Advice
Immigration New Zealand ("INZ") will accept a fixed-term contract for a WHV holder because the IA provides a genuine reason based on reasonable grounds for doing so. In this scenario, the employment contract should state that the fixed-term duration is to comply with both Acts, is due to the employee holding a WHV, along with any other reason for the fixed-term. Importantly, it does not prevent the terms of an employment contract being revisited, if a different type of temporary visa is applied for in future.
For all other work visa categories, INZ will not accept a fixed-term employment agreement where the only reason provided for the fixed term is because the employee is applying for, or holding, a temporary visa. Instead, there must be genuine reasons based on reasonable grounds to offer fixed-term employment. For example, the employment could be for time-bound project work or to cover maternity leave.
In summary
When drafting a fixed-term employment agreement for a WHV holder, specify that the fixed-term duration is to comply with the IA and the ERA, is due to the employee holding a WHV, along with any other reason for the fixed-term. It is important that the reason(s) for the fixed-term is clearly articulated in the employment agreement, and we suggest taking advice on the specific wording required for your circumstances.
For all other work visa categories, an employee being on a temporary work visa is not reason in itself to justify fixed-term employment.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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