WH3.5 Transitioning to Recognised Seasonal Employer (TRSE)... (12/02/2008)

WH3.5 Transitioning to Recognised Seasonal Employer (TRSE) - Approval in Principle

TRSE approval in principle is an approval for employers in the horticulture and viticulture industries to offer employment (to plant, maintain, harvest or pack crops) to workers who hold TRSE work permits (see WH3.10).

WH3.5.5 Requirements for TRSE approval in principle

Employers applying for TRSE approval in principle must:

1. provide the details of the available employment including:
   1. the number of workers required; and
   2. the nature of each position (planting, maintaining, harvesting, or packing crops); and
   3. the period for which each position is available; and
   4. the location(s) in which the work is to be undertaken; and
2. ensure that workers recruited under TRSE policy will have access to suitable accommodation for the duration of their employment; and
3. provide a signed statement of intent:
   1. (if the employer is not yet a Recognised Seasonal Employer (RSE) (see WH1)) to become an RSE, or to access RSE workers consistent with RSE policy; or
   2. (if the employer is an RSE) to work towards utilisation of RSE policy; and
4. have taken steps to obtain suitable and available New Zealand workers for the vacant position(s) through Work and Income; and
5. provide a copy of the employment agreement that will be offered to the workers recruited under TRSE policy that meets the requirements set out in WH3.5.20; and
6. comply with the employer requirements under General Work Policy (see W2.10.5); and
7. satisfy INZ that they will:
   1. comply with any request from the Department of Labour to audit the employer against TRSE policy and the conditions set out in the employment agreements, and
   2. work with the Department of Labour and RSE Transition Facilitators to assist in the transition towards utilising RSE policy; and
   3. have direct responsibility for the daily work output and supervision of non-New Zealand citizen or resident workers recruited by them under TRSE policy; and
   4. promptly notify INZ if they become aware that a worker is breaching or has breached the conditions of his or her TRSE work permit; and
   5. employ no more than the number of TRSE workers stated on their approval in principle at any given time.

Note: The employment agreement provided to workers must be the same as that which is provided to INZ with the employer’s application for TRSE approval in principle, unless:
a. the terms and conditions of the employment agreement provided to the worker are more beneficial to the worker; or
b. the employment agreement was provided to INZ with an application for TRSE approval in principle before 12 February 2008, in which case, the employment agreement provided to the worker does not have to guarantee the worker an average of 30 hours of work per week, however the terms and conditions in the rest of the employment agreement must either be the same as that provided to INZ or more beneficial to the worker.

WH3.5.10 Additional requirements for TRSE approval in principle for applications received after 26 November 2008

1. Applications for TRSE approval in principle received after 26 November 2008 from employers who have not yet been granted RSE status must also include evidence to satisfy INZ that the employer has been demonstrably working towards utilising RSE policy.
2. Evidence to show that an employer has been demonstrably working towards utilising RSE policy may include, but is not limited to, documents which show that the employer:
   1. is in a sound financial position;
   2. has put in place, or is in the process of putting in place, human resource policies and practices which demonstrate good employment practice and promote the welfare of workers, and include dispute resolution processes;
   3. is committed to recruiting and training New Zealanders, including evidence the employer has engaged with the Ministry of Social Development – Work and Income and/or the relevant Industry Training Organisation or industry body;
   4. has put in place, or is in the process of putting in place, workplace practices which are compliant with all immigration and employment laws;
   5. has put in place, or is in the process of putting in place, arrangements to make available appropriate pastoral care to the non-New Zealand citizen or resident workers they intend to recruit through RSE policy;
   6. has taken any other steps, and will continue to take steps, to ensure that they are making progress towards utilising the RSE policy.
3. The evidence required in (b) above may be provided to INZ either:
   1. directly by the employer; or
   2. where the employer has been working with an RSE Transition Facilitator, through the RSE Transition Facilitator.
4. INZ will consult with the RSE Transition Facilitator when determining whether an employer has been demonstrably working towards utilising RSE policy.

WH3.5.15 Determining an application for TRSE approval in principle

1. TRSE approval in principle will only be granted where:
   1. INZ is satisfied that an employer is a New Zealand employer as set out at WH1.5.1; and
   2. INZ is satisfied that an employer meets the requirements set out at WH3.5.5 above; and
   3. INZ is satisfied that the employer has established a relationship with the appropriate regional Work and Income office(s) concerning their seasonal labour requirements; and
   4. INZ, in consultation with MSD and relevant industry bodies, is satisfied that there are no suitable New Zealand citizen or resident workers available to undertake the work; and
   5. INZ is satisfied the employer has complied with the conditions of any previous TRSE approval in principle that has been granted to the employer.
2. Where INZ is not satisfied that the number of workers requested in the TRSE approval in principle is appropriate for the work required, or considers that the number of non-New Zealand citizen or resident workers the employer proposes to recruit exceeds the forecast labour shortage for the region and period requested, INZ may approve the recruitment of a lesser number of workers, or the recruitment of workers for a lesser period of work than requested.
3. INZ may consult with other services of the Department of Labour, the Inland Revenue Department, the Accident Compensation Corporation, the New Zealand Council of Trade Unions, and any relevant unions, agencies, and industry bodies when determining whether an employer meets the requirements set out at WH3.5.5.
4. INZ will decline an application for TRSE approval in principle where it considers such approval would create unacceptable risks to the integrity of New Zealand’s immigration or employment laws or policies.
5. For applications made after 26 November 2008, INZ must be satisfied that the additional requirements at WH3.5.10 have been met.

WH3.5.20 Minimum requirements for employment agreements under TRSE policy

Employment agreements between employers with TRSE approval in principle and non-New Zealand citizen or resident workers must:

1. be genuine; and
2. be for planting, maintaining, harvesting or packing crops in the horticulture or viticulture industry; and
3. be for a period of work of no more than four months; and
4. specify a ‘per hour’ rate (the per hour rate for any training period must be specified separately in the employment agreement); and
5. where piece rates apply to the work to be performed by the worker, also specify the piece rate(s); and
6. provide that the worker will be paid no less than the market rate (see WH3.5.25); and
7. comply with all relevant employment law in force in New Zealand, such as the requirements of the Injury Prevention, Rehabilitation, and Compensation Act; the Wages Protection Act; the Minimum Wage Act; the Health and Safety in Employment Act; the Employment Relations Act; and the Holidays Act.

WH3.5.25 Market Rates for TRSE

For the purpose of TRSE policy, ‘market rate’ is the typical rate a New Zealand citizen or resident is paid for doing the equivalent work or training, in the same period, in the same region. The ‘market rate’ may be expressed in terms of a ‘per hour’ rate or a piece rate.

WH3.5.30 Reconsideration process for applications for TRSE approval in principle which are declined

There is no statutory right of appeal against the decision to decline a request for TRSE approval in principle, however, INZ may reconsider a declined application where new information is promptly provided.

WH3.5.35 Applying for TRSE approval in principle

Application for TRSE approval in principle must be:

1. made in New Zealand; and
2. made on the Application for Transitioning to Recognised Seasonal Employer (TRSE) Approval in Principle (NZIS 1152) form; and
3. accompanied by the prescribed approval in principle fee; and
4. supported by evidence that demonstrates the employer meets the requirements set out at WH3.5.5 (and WH3.5.10 if the application is made after 26 November 2008).

Effective 12/02/2008