Caregiver Pay was classified as ‘low skill’ for a long time in New Zealand.
A large proportion of the caregiver workforce is reliant on work visas to live and work in New Zealand.
What this meant in real terms is that until recently, they had no path to permanent residence because:
the classification of their occupation and
- their low pay rate placed them in the “Low-Skilled” basket, despite the challenging nature of their work and the fact that many of them are qualified nurses or have medical training in their home country.
Careworker “Low-Skilled” Immigration classification also meant that they could not bring their partners and children to join them in New Zealand.
This level of sill classification allows for renewal of temporary work visas, for a maximum of three years, following which they are required to leave New Zealand – resulting in a continual turnover of employees in this critical area where staffing is challenging.
Care and Support Workers (Pay Equity) Settlement Act 2017
The tide began to turn when, on 18 April 2017, the Government announced a $2 billion pay equity settlement for Care and Support workers.
A new law was passed, called the “Care and Support Workers (Pay Equity) Settlement Act” and a new pay scale came into effect on 1 July 2017.
According to the Ministry of Health website, this led to 55,000 Care and Support Workers throughout New Zealand receiving pay rises between 15 and 50%.
Although this was a welcome pay increase for all Care and Support Workers, it still did not lead to permanent residence for the migrant workers, because the occupation itself was still classified as Low-Skilled.
Finally, on 30th October 2019, Immigration New Zealand added the occupation to their list of “Occupations Treated as Exceptions” which meant that it would now be assessed as Mid-Skilled.
This move, combined with the increased pay rate, meant that migrants would be eligible to apply for residence and have their families join them.
Except that they still can’t…
An anomaly between the (Pay Equity) Settlement Act and INZ’s Operational Manual means that most, if not all migrant care workers are still not eligible for residence.
Sleepover shifts create a complication for migrant workers.
Care workers are often required to sleep over at their client’s home or care facility. The potential for this is written into their employment agreement.
The Act allows for sleepovers to be paid at a lower rate of pay, so this arrangement is entirely lawful from an employment law point of view, and probably fair, in terms of the actual work involved in a sleepover. So this is not an issue for New Zealand workers.
However, for migrant workers to be assessed as mid-skilled for the purpose of a work or residence visa, INZ requires that every hour worked must be paid at the same hourly rate.
By Immigration NZ’s calculation, the lower pay for sleepovers dilutes the total pay rate, thus placing the applicant back at “Low-Skilled Worker” status.
The requirement from Immigration NZ that every hour worked must be paid at the same rate has been in place for years.
However, INZ staff have not been applying it correctly in the case of care workers who sleep over.
They have erroneously been issuing 3-year (“Mid-Skilled”) work visas to these applicants, when in fact, by INZ’s definition, these persons should have received 6-month (“Low-Skilled”) work visas or at least should have been given the opportunity to remedy their employment agreements.
Receiving 3-year Mid-Skilled work visas has led migrant workers and their employers to believe they were eligible for the visa and for residence.
Many have spent large amounts of money submitting EOI’s and residence applications, which are very likely to be declined.
It appears the inconsistent interpretation of the instruction has only recently been brought to the attention of Immigration NZ staff via a Visa Pak issued 3 weeks ago. (Visa Paks are issued to INZ staff when clarification is needed on an operational instruction).
According to Visa Pak 465 dated 1st April 2021, if the employer’s standard employment agreement contains a sleepover clause, the employer will be required to provide written confirmation that the visa-holder is not required to undertake sleepovers.
Any visa-holders who have been sleeping over at the lower rate of pay will need to stop that activity immediately.
Employers and migrant workers are now faced with several challenges as follows:
- Workers who have been sleeping over at a lower pay rate are effectively in breach of their visa.
- Employers are effectively in breach of Immigration instruction. There is a raft of issues that could arise from these breaches.
Clearly, this situation is not what was envisaged by the Act.
It is a matter that will need to be urgently addressed by INZ. In the meantime, though, our clients and their employers need to be aware of the unintended consequences of this anomaly.
If you require assistance with visa related issues for employees, please contact us for a consultation.
About the author
Deborah Reid is a NZ licensed immigration adviser and has been working in the industry for over 10 years. Deborah specialises in all types of NZ visas as well as employer accreditation.
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