No 90 day trial periods for migrants on work visas

Monday 25 September, 2023

The recent explosion of migrant exploitation stemming from the Accredited Employer Work Visa scheme (“AEWV”) has prompted an urgent review by the new Minister of Immigration Andrew Little. On 21 September, Immigration New Zealand announced its first raft of changes to start to address some of the issues that have enabled the exploitation to occur.

Key amongst those changes is a blanket ban on 90-day trials available under section 67A of the Employment Relations Act 2000 from being included in any employment agreements that will support the hiring of an AEWV holder.  From late October this year, employers will need to commit to this as part of any job checks they apply for, and when they apply for or renew their accreditation.

Any use of 90-day trials after making this commitment may result in accreditation being revoked.  Any job check applications will be declined if the employment agreement submitted with it includes a 90- day trial period clause. It will not apply to already-approved Job Checks, or to migrants who already hold or who have applied for an AEWV. 

Immigration New Zealand’s announcement does not discuss whether this ban extends to any probationary periods that may be included in agreements that are not subject to section 67A.  Termination decisions under these types of probationary clauses are subject to challenge via the personal grievance regime, unlike the 90-day trial period.  Therefore, it is unlikely that INZ’s ban will extend to these given migrants will have the right to dispute termination in the usual manner.

 If you have any questions about this, contact someone on our immigration or employment team below.