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90 Day Trials Soon No Longer Valid For Migrant Workers

Published 04 Oct 2023

As part of Immigration New Zealand's (INZ) 'Migrant Work Exploitation Programme' the use of 90 Day Trial Periods will no longer be allowed for any migrant worker employed under the Accredited Employer Work Visa (AEWV) scheme from 29 October 2023.

Presently, small-to-medium employers, defined as those with fewer than 20 employees, accredited with the AEVW scheme have the ability to incorporate a 90-day trial clause in their employment agreements. This provision empowers the employer to terminate the employment of an employee within the initial 90 days without being susceptible to an unjustified dismissal personal grievance claim.

Under the revised INZ policy, this ability will be removed from engagements with AEWV migrant workers. From 29 October 2023 accredited employers in the existing framework must not include trial provisions in their employment agreements when applying for Job Checks with INZ. Additionally, employers seeking accreditation on or after 29 October 2023, will be precluded from using 90 Day Trial periods for AEWV holders who are subsequently employed.

This means that ordinary employment law requirements in terms of fair process and justification apply for any dismissal scenarios involving migrant workers, which they are free to challenge via a personal grievance claim.

For employers who have relied on an employment agreement incorporating a 90 day trial provision approved before October 29, 2023, the trial period clause will remain legally valid. This means that any existing agreements containing such provisions will not be affected by the new changes - provided the trial period is valid in all other material respects.