Immigration alert – Fixed term employment agreements for working holiday makers

Background

The Immigration Act 2009 (IA) does not allow a Working Holiday Maker (WHM) to take up permanent employment. However, the Employment Relations Act 2000 (ERA) requires a genuine reason based on reasonable grounds for a fixed-term employment contract. This creates confusion for employers who are looking to comply with both Acts.

Update

Immigration New Zealand (INZ) has clarified that the IA provides a genuine reason based on reasonable grounds for offering fixed-term employment to a WHM. This means that employers can specify that the fixed-term duration is to comply with both the IA and ERA.

Our thoughts

This position is limited to the WHM visa category. INZ will not accept a fixed-term contract for most other temporary visa categories, based on the duration of a visa only.

If a fixed-term contract is used for other categories of visa, there must be a genuine reason based on reasonable grounds for the fixed-term duration that is not related to visa status. This could include seasonable work, project work or parental leave cover.

Advice

When offering employment to a WHM, employers should state that the contract is fixed-term because the employee is a WHM. This is to comply with both the IA and ERA.

The visa duration cannot be used to justify a fixed-term employment contract for most other work visa categories.

Questions?

If you have any questions about this article, please contact Tash Rae or a member of our specialist Employment Team.

PDF version: here.