Immigration Act 1987

  • repealed
  • Immigration Act 1987: repealed, at 2 am on 29 November 2010, by section 404 of the Immigration Act 2009 (2009 No 51).
39A Exploitation of people not legally entitled to work
  • (1) Every employer commits an offence against this Act who,—

    • (a) while allowing an unlawful employee to undertake employment in the employer's service,—

      • (i) is responsible for a serious failure to pay to the employee money payable under the Holidays Act 2003; or

    • (b) while allowing an unlawful employee to undertake employment in the employer's service, takes an action with the intention of preventing or hindering the employee from—

      • (i) leaving that employment; or

      • (ii) leaving New Zealand; or

      • (iii) ascertaining or seeking his or her entitlements under the law of New Zealand; or

      • (iv) disclosing to any person the circumstances of his or her employment by the employer.

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

    • (a) taking or retaining possession or control of a person's passport, any other travel or identity document, or travel tickets:

    • (b) preventing or hindering a person from—

      • (i) having access to a telephone; or

      • (ii) using a telephone; or

      • (iii) using a telephone privately; or

      • (iv) leaving premises; or

      • (v) leaving premises unaccompanied; or

    • (c) 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.

    (3) Subsection (2) does not limit the generality of subsection (1)(b).

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

    • (a) whether a failure to pay to a person money payable under the Holidays Act 2003 is serious:

    (5) 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:

    • (a) the amount of money involved:

    • (b) whether it comprises a single instance or a series of instances:

    • (c) if it comprises a series of instances,—

      • (i) how many instances it comprises:

      • (ii) the period over which they occurred:

    • (d) whether or not it was intentional:

    • (e) whether the employer concerned has complied with the record-keeping obligations imposed by the Act concerned:

    • (f) any other relevant matter.

    (6) An information alleging an offence against subsection (1) may specify any day on which it is alleged the person was in the employment of the employer, and it is not necessary to state the day on which that employment is alleged to have commenced.

    (7) For the purposes of this section, an employer must be treated as knowing that an employee is not entitled under this Act to undertake any particular employment if, at any time within the preceding 12 months, the employer has been informed of that fact in writing by an immigration officer.

    (8) A person who commits an offence against subsection (1) is liable on conviction to imprisonment for a term not exceeding 7 years, a fine not exceeding $100,000, or both.

    (9) In this section, unlawful employee, in relation to an employer, means a person whom the employer knows is not entitled under this Act to undertake employment in the employer's service.

    Section 39A: inserted, on 18 June 2002, by section 5 of the Immigration Amendment Act 2002 (2002 No 22).

    Section 39A(1)(a)(i): amended, on 1 April 2004, by section 91(2) of the Holidays Act 2003 (2003 No 129).

    Section 39A(4)(a): amended, on 1 April 2004, by section 91(2) of the Holidays Act 2003 (2003 No 129).