Unfair Labour Market Testing Amid COVID-19 Crisis

Opinion Piece: Aaron Martin, principal immigration lawyer for NZIL

This week sees more adverse treatment of migrant workers from Immigration New Zealand in the wake of COVID-19.

As of the 13th of May Immigration New Zealand (INZ) has released advice to INZ officers processing Essential Skills work visa applications.

Many employers who have advertised for a role and accepted a migrant candidate who fulfilled the criteria of the job and had earlier passed the labour market test are now being sent this generic response to a work visa application:

The position that you have been offered was advertised prior to the COVID-19 Pandemic. COVID-19 has greatly affected New Zealand’s economy and job market meaning there has been significant changes to the labour market since that time. The change in the labour market was unpredicted and extremely fast. The documents that you have provided to date do not allow us to make a complete assessment, given the amount of change that has occurred.

Based on the evidence of recruitment provided with your application, we are not yet satisfied that there are no New Zealanders available for the work you have been offered, as required by immigration instructions at WK1.5 and WK3.10; therefore your application may be declined.

This response forces employers to advertise again to prevent a declined application, without offering any substantive evidence that the skillsets the employer is looking for and has advertised for pre-COVID is no longer in short supply.

It would affect anyone applying for a work visa under the Essential Skills category – who’s application has not yet been processed and completed.

H2: Getting Around their own Rules

We’ve previously written an article explaining how Immigration New Zealand cannot compel employers to re-advertise roles.

INZ is supposed to provide tangible evidence that the labour market has changed for a particular market or a particular set of skills, and to outline what they’re looking for.

However, what they’ve actually done in this instance is create a standard template, that has a generic observation about the impact of COVID-19 on unemployment rates. Then they say they cannot be satisfied no New Zealanders are available to fill those jobs.

The implication is very clearly that if you don’t come back with some form of advertising proof, we’ll deny the work application.

When you read the generic paragraph, you could apply that same information to a work visa for a brain surgeon, as you would do a warehouse assistant. It’s that generic.

This is incredibly disingenuous. Essentially, Immigration New Zealand have administratively got around their earlier internal advice – but instead of providing some solid evidence to that fact, they’ve put a generic statement out there around unemployment rates, which is almost someone’s narrated observation.

There is absolutely no empirical data in this statement that is relevant to the particular immigration application the officer is considering.

Not all industries will be affected from the COVID-19 crisis

The truth of the matter is, not every industry’s skill shortage will suddenly be improved by more New Zealanders being on the job market. Increased numbers of unemployed does not necessarily translate to increased people with transferrable skills relevant to an employer’s business.

What industries wouldn’t?

The skill shortage in New Zealand amongst trades, for example, was there long before the boom occurred in the building/construction centre – because of the systemic failure in governments to invest in and foster trade training, and because the employer sector didn’t up-skill their own staff.

(Even worse in this instance is that we’re about to pump money into infrastructure, and we’re going to need those skilled people – there won’t be the volume to support and sustain those projects if we send all our imported plumbers, gas fitters, drain layers, builders offshore again!)

Some industries are also not appealing to New Zealanders, which has created a long-term skill shortage.

For example, there’s a big turn away in some sectors from pursuing careers in industries like dairy or horticulture, for example.

It makes complete rational sense that the skill shortage in these industries (and many others) would remain, as they had nothing to do with skill shortages driven by demand and public consumption.

What industries would be affected?

That situation is completely different to, say, the restaurant sector. That skill shortage was purely demand driven. So, of course COVID-19 would have impacted the pool of people who can take those jobs, as many restaurants will have made staff redundant or shut down completely.

To have those skill shortages be filled with qualified New Zealanders is understandable. Nobody would argue with that.

What would be more reasonable?

INZ shouldn’t be making decisions or threatening someone’s work visa application with a decline decision based on generic, loose observations. Instead they should be taking an intelligent approach using labour market data and intelligence – especially given the level of information sharing between Immigration New Zealand and Ministry of Social Development.

If employers are to take them seriously, INZ should be able to know which industries have been more affected by COVID-19 and which ones have not – which could be easily done by reviewing the skillsets of those who are registering as unemployed, and by reviewing redundancies and job losses in different areas.

For example: "We’ve found there are 20 restaurant managers have registered as unemployed in the Queenstown area, we believe that the pre-COVID labour market is no longer reflected now, and invite you to comment? "

That’s completely reasonable and understandable.

Why aren’t INZ using empirical evidence?

This is a good question!

It seems to come down to not having the data (in which case, how are you maintaining skill shortage lists?) to not wanting to touch on the issue of immigration since it’s an election year – or it being much easier to send out a templated form.

It’s incredibly short sighted to force all these migrants offshore and assume that it will be economically beneficial for New Zealand. It’s not. A lot of those skill shortages remain regardless of COVID-19.

Quite frankly, this is lazy, sloppy, and disingenuous – we should expect better from our government and paid officials.

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