Section 351 — Immigration Act 2009: Exploitation of persons not legally entitled to work

351 Exploitation of persons not legally entitled to work (1) Every employer commits an offence against this Act who,— (a) while allowing an unlawful employee to work 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 (ii) is in serious default under the Minimum Wage Act 1983 in respect of the employee; or (iii) is responsible for a serious contravention of the Wages Protection Act 1983 in respect of the employee; or (b) while allowing an unlawful employee to work in the employer’s service, takes an action with the intention of preventing or hindering the employee from— (i) leaving the employer’s service; 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 work for the employer. (2) 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: (b) whether a default under the Minimum Wage Act 1983 in respect of a person is serious: (c) whether a contravention of the Wages Protection Act 1983 in respect of a person is serious. (3) 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. (4) The following are examples of actions of the kind 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: (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. (5) Subsection (4) does not limit subsection (1)(b). (6) An information 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. (7) For the purposes of this section, an employer is treated as knowing 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 section), the employer has been informed of that fact in writing by an immigration officer. (8) In this section, unlawful employee , in relation to an employer, means a person who the employer knows is not entitled under this Act to work in the employer’s service. Compare: 1987 No 74 s 39A