Plain language law

New Zealand law explained for everyone

Immigration Act 2009

Offences, penalties, and proceedings - Offences

351: Exploitation of unlawful employees and temporary workers

You could also call this:

“Unfair treatment of workers without proper work rights in New Zealand”

This law is about employers who treat their workers unfairly when those workers don’t have the right to work in New Zealand or are only allowed to work for a short time.

You break this law if you let someone work for you who isn’t allowed to, and you don’t pay them properly. This includes not giving them holiday pay, paying less than the minimum wage, or not following the rules about how to pay wages.

You also break this law if you try to stop these workers from leaving their job, leaving New Zealand, finding out about their rights, or telling others about their work situation.

The law gives examples of things that count as trying to stop workers from leaving or getting help. These include taking away their passport or travel documents, not letting them use a phone, or stopping them from leaving a place on their own.

To decide if an employer has seriously broken the rules about pay, the law looks at things like how much money is involved, how many times it happened, and whether it was on purpose.

If you’ve been told in the last year that someone isn’t allowed to work for you, the law says you should know this. The same goes for workers who are only allowed to stay in New Zealand for a short time.

The law explains what it means by ‘unlawful employee’ and ‘temporary worker’. These are people who the employer knows, or should know, aren’t allowed to work or are only allowed to work for a short time in New Zealand.

This text is automatically generated. It might be out of date or be missing some parts. Find out more about how we do this.

View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM1441158.

Topics:
Immigration and citizenship > Visas
Immigration and citizenship > Border control
Work and jobs > Worker rights
Rights and equality > Anti-discrimination
Previous

350: Offences by employers, or

“Employers can be penalised for knowingly allowing unauthorised work”

Next

352: Offences by education providers, or

“Rules for education providers about who can study at their institution”

Part 10 Offences, penalties, and proceedings
Offences

351Exploitation of unlawful employees and temporary workers

  1. Every employer commits an offence against this Act who,—

  2. while allowing an unlawful employee or temporary worker to work in the employer’s service,—
    1. is responsible for a serious failure to pay to the employee or worker money payable under the Holidays Act 2003; or
      1. is in serious default under the Minimum Wage Act 1983 in respect of the employee or worker; or
        1. is responsible for a serious contravention of the Wages Protection Act 1983 in respect of the employee or worker; or
        2. while allowing an unlawful employee or temporary worker to work in the employer’s service, takes an action with the intention of preventing or hindering the employee or worker from—
          1. leaving the employer’s service; or
            1. leaving New Zealand; or
              1. ascertaining or seeking his or her entitlements under the law of New Zealand; or
                1. disclosing to any person the circumstances of his or her work for the employer.

                2. For the purposes of subsection (1)(a), the following are questions of fact:

                3. whether a failure to pay to a person money payable under the Holidays Act 2003 is serious:
                  1. whether a default under the Minimum Wage Act 1983 in respect of a person is serious:
                    1. whether a contravention of the Wages Protection Act 1983 in respect of a person is serious.

                      1. For the purposes of subsection (1)(a), the following matters may be taken into account in deciding whether a failure, default, or contravention is serious:

                      2. the amount of money involved:
                        1. whether it comprises a single instance or a series of instances:
                          1. if it comprises a series of instances,—
                            1. how many instances it comprises:
                              1. the period over which they occurred:
                              2. whether or not it was intentional:
                                1. whether the employer concerned has complied with the record-keeping obligations imposed by the Act concerned:
                                  1. any other relevant matter.

                                    1. The following are examples of actions of the kind referred to in subsection (1)(b):

                                    2. taking or retaining possession or control of a person’s passport, any other travel or identity document, or travel tickets:
                                      1. preventing or hindering a person from—
                                        1. having access to a telephone; or
                                          1. using a telephone; or
                                            1. using a telephone privately; or
                                              1. leaving premises; or
                                                1. leaving premises unaccompanied:
                                                2. preventing or hindering a labour inspector (within the meaning of the Employment Relations Act 2000) from entering or having access to any place or premises to which he or she is entitled to have access under any enactment.

                                                  1. Subsection (4) does not limit subsection (1)(b).

                                                  2. A charge alleging an offence against subsection (1) may specify any day on which it is alleged the person was working for the employer, and need not state the day on which that work is alleged to have commenced.

                                                  3. For the purposes of this section, an employer is treated as knowing—

                                                  4. that an employee is not entitled under this Act to do any particular work if, at any time in the preceding 12 months (whether before or after the commencement of this subsection) the employer has been informed of that fact in writing by an immigration officer; and
                                                    1. that a worker holds a temporary entry class visa if, at any time in the preceding 12 months (whether before or after the commencement of this subsection) the employer has been informed of that fact in writing by an immigration officer.

                                                      1. In this section, in relation to an employer,—

                                                        temporary worker means a person—

                                                        1. who the employer knows holds a temporary entry class visa; or
                                                          1. who holds a temporary entry class visa and in respect of whom the employer is reckless as to whether or not the person holds a temporary entry class visa

                                                            unlawful employee means a person who undertakes work for the employer that—

                                                            1. the employer knows, under this Act, the person is not entitled to undertake; or
                                                              1. the person is, under this Act, not entitled to undertake and in respect of which the employer is reckless as to whether or not the person is entitled to undertake the work.

                                                              Compare
                                                              Notes
                                                              • Section 351 heading: amended, on , by section 86(1) of the Immigration Amendment Act 2015 (2015 No 48).
                                                              • Section 351(1)(a): amended, on , by section 86(2) of the Immigration Amendment Act 2015 (2015 No 48).
                                                              • Section 351(1)(a)(i): amended, on , by section 86(3) of the Immigration Amendment Act 2015 (2015 No 48).
                                                              • Section 351(1)(a)(ii): amended, on , by section 86(3) of the Immigration Amendment Act 2015 (2015 No 48).
                                                              • Section 351(1)(a)(iii): amended, on , by section 86(3) of the Immigration Amendment Act 2015 (2015 No 48).
                                                              • Section 351(1)(b): amended, on , by section 86(2) of the Immigration Amendment Act 2015 (2015 No 48).
                                                              • Section 351(1)(b): amended, on , by section 86(3) of the Immigration Amendment Act 2015 (2015 No 48).
                                                              • Section 351(6): amended, on , by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
                                                              • Section 351(7): replaced, on , by section 86(4) of the Immigration Amendment Act 2015 (2015 No 48).
                                                              • Section 351(8): replaced, on , by section 86(5) of the Immigration Amendment Act 2015 (2015 No 48).