- This is not current policy -
WH1.10 Agreement to Recruit (ATR) (08/12/2008)
- An Agreement to Recruit (ATR) is an approval for a Recognised Seasonal Employer (RSE) to offer employment (in planting, maintaining, harvesting, and packing crops) to non-New Zealand citizen or resident workers. This approval will only be given at times where demand for such workers in the horticulture and viticulture industries cannot be met from the available New Zealand workforce.
- The availability of suitable New Zealand citizen or resident workers will be assessed in consultation with the Ministry of Social Development (MSD).
WH1.10.1 Requirements for an ATR
- An application for an Agreement to Recruit (ATR) will only be approved where the employer holds RSE status (WH1.5).
- INZ must be satisfied that the employer has taken all reasonable steps to recruit and train New Zealand citizens or residents for available positions before seeking an ATR to recruit workers who are not New Zealand citizens or residents. Evidence to support the employer’s case for requiring an ATR must be provided with each application for an ATR.
- Each application must include the following information:
- the region(s) of seasonal demand; and
- the number of workers required; and
- the nature of each position (planting, maintaining, harvesting, or packing crops); and
- the period for which each position is available (start and end date of employment); and
- the location where the non-New Zealand citizen or resident workers will be working; and
- the country or countries from which the employer intends to recruit their workers; and
- a copy of the employment agreement that will be offered to the workers, and that meets the requirements set out in WH1.20.
Note: The employment agreement provided to workers must be the same as that which is provided to INZ at the ATR stage, unless the terms and conditions are more beneficial to the worker.
- Where the RSE applying for an ATR intends to recruit workers to undertake work at the worksite of a third party, such as a grower or pack house operator, they must provide written evidence of that arrangement with the third party. Such arrangements between RSEs and third parties do not remove any of the RSEs’ obligations under this policy (except where WH1.5.5 (d) applies).
- Where two or more RSEs have an arrangement to provide consecutive periods of employment to the same workers, they must submit their separate ATRs (covering each consecutive period) to INZ together. Where INZ approves those jointly submitted ATRs, workers will be able to apply for a further permit to work for the second or subsequent RSEs without the need to depart from New Zealand.
Note: In any case the maximum stay in New Zealand of seven months in any 11 month period (or nine months in any 11 month period for citizens of Tuvalu or Kiribati who are normally resident in Tuvalu or Kiribati) must be adhered to.
- INZ must be satisfied that the employer will make available appropriate pastoral care to workers. Employers must provide full details of how they plan to address the following pastoral care, and health and safety requirements:
- transportation to and from the port of arrival and departure; and
- an induction programme; and
- suitable accommodation; and
- transportation to and from the worksite(s); and
- access to personal banking; and
- provision of personal protective equipment; and
- provision of onsite facilities (toilets, hand washing, first aid, shelter, fresh drinking water); and
- necessary language translation, e.g. for health and safety purposes; and
- opportunity for recreation and religious observance.
- An RSE who holds an ATR must:
- comply with the conditions of the ATR; and
- provide all prospective non–New Zealand citizen or resident workers to be employed under RSE policy with a written employment agreement that meets the requirements set out in WH1.20; and
- comply with the terms and conditions of the employment agreements; and
- comply with the minimum requirements set out in WH1.20 in relation to:
- paying half the return airfare between New Zealand and the worker’s country of residence for each worker recruited under the RSE policy, unless the worker is a citizen of Tuvalu or Kiribati who is normally resident in Tuvalu or Kiribati (in which case the employer must pay for half the return airfare between Nadi (Fiji) and New Zealand), or WH1.15.5(a) applies; and
- minimum remuneration; and
- pay deduction requirements; and
- comply with any request from the Department of Labour to audit the RSE against RSE Policy and the conditions of the RSEs ATR and employment agreements; and
- pay to the Department of Labour any costs reasonably incurred by the Department, to a maximum of NZ$3000 per worker, in relation to the repatriation (including any maintenance and accommodation) of any non–New Zealand citizen or resident worker who requires repatriation as a result of a breach of the terms and conditions of their RSE limited purpose permit.
Note: For the purposes of this policy, the return airfare is defined as the total cost of travel from the worker’s country of residence (or from Nadi (Fiji) for a worker who is a citizen of Tuvalu or Kiribati) to New Zealand and back, including all associated taxes and fees.
WH1.10.5 Determining an application for an ATR
- An ATR will be approved only where:
- the appropriate regional Work and Income office(s) has been advised of the RSEs vacancies; and
- INZ, in consultation with MSD, is satisfied that there are no suitable New Zealand citizen or resident workers available to undertake the work; and
- there are sufficient places remaining within the annual limit (see WH1.1.15), for the grant of permits under this policy; and
- INZ is satisfied that the requirements set out in WH1.10.1 and WH1.10.10 are met.
- Where INZ is not satisfied that the number of workers requested in the ATR is appropriate for the work required, or this number of people exceeds the forecast labour shortage for the region and period requested, INZ may approve the recruitment of a lesser number of workers, or for a lesser period of work than requested.
- INZ will take into consideration the needs of the horticulture industry and viticulture industry as a whole when determining an ATR application and the number of workers that may be approved, to ensure that no particular region, crop or season is disadvantaged.
- Any supporting documentation to verify a regional labour shortage will be considered.
WH1.10.10 Pacific countries eligible for the recruitment of workers
- ATRs will only be granted for recruitment of citizens from the following eligible Pacific countries who are also normally resident in one of those countries, unless (c) below applies:
Federated States of Micronesia
Papua New Guinea
Republic of Marshall Islands
- In response to the December 2006 Fiji coup, Fiji has been excluded from the list of eligible Pacific countries, however ATRs may be granted to citizens from the eligible Pacific countries who are normally resident in Fiji.
- ATRs will only be granted for recruitment of citizens other than those listed above where INZ is satisfied that:
- reasonable attempts to recruit from the eligible Pacific countries have not been successful (see WH1.10.15); or
- the RSE has pre-established relationships with workers from countries other than the eligible Pacific countries (see WH1.10.20); or
- the RSE has reasonable grounds for why it is not feasible to recruit from the eligible Pacific countries.
- Any request to recruit from outside the eligible Pacific countries must state the country or countries the RSE wishes to recruit from, and must be accompanied by evidence that supports this request.
WH1.10.15 Reasonable attempts to recruit from eligible Pacific countries
INZ may consider an RSE to have made reasonable attempts to recruit from eligible Pacific countries if:
- the RSE has failed, having made genuine and reasonable attempts, to recruit suitable potential workers from the eligible Pacific countries within six weeks of commencing recruitment; and
- evidence can be provided of genuine and reasonable attempts to recruit workers in the eligible Pacific countries, such as a written communication from a National RSE Officer stating that they have been consulted and agree that employing people from these nations is not feasible in the circumstances.
Note: If any employment offers provided to workers from the eligible Pacific countries do not meet the criteria set out in WH1.20, the employer will not be considered to have made a reasonable attempt to recruit from eligible Pacific countries.
WH1.10.20 Pre-established employment relationships with workers of other nationalities
- When determining whether an employer has a pre-established employment relationship with workers who are not citizens of eligible Pacific countries, INZ will take into account factors such as (but not limited to):
- the number of workers employed from each country, relative to the total number of workers employed by the employer; and
- the number of previous occasions on which workers have been recruited from these countries; and
- the length of time for which these workers were employed; and
- whether the employer has made a substantial investment in establishing formal training opportunities or recruitment processes with workers or communities within these countries.
- When determining whether an employer has a pre-established employment relationship with workers who are not citizens of eligible Pacific countries, INZ will not take into account:
- employment relationships with workers holding permits granted under the Seasonal Work Permit policy, or a Working Holiday Scheme policy, or the Transitioning to Recognised Seasonal Employer policy, or on the basis of a Variation of Conditions to a visitor permit; and
- employment relationships entered into as a result of an Approval in Principle to employ foreign workers granted on or after 10 April 2007.
- Where INZ is satisfied that an employer has a pre-established relationship with workers from a country not listed in WH1.10.10 (a) and the employer has applied to recruit a greater number of workers from that country than the number of workers from that country previously employed by the employer, INZ will then determine whether the number of workers requested is appropriate in the circumstances.
- When making a determination under (c) above, INZ may take into account such factors as:
- the nature of the pre-established relationship, such as whether the employer has made a substantial investment in establishing formal training opportunities or recruitment processes with workers or communities within that country; and
- whether the employer has made any attempts to develop relationships with countries listed in WH1.10.10(a) above.
WH1.10.25 Reconsideration process for applications for ATRs which are declined
There is no statutory right of appeal against the decision to decline an application for an Agreement to Recruit (ATR), however INZ may reconsider a declined application for an ATR where new information is promptly provided.
WH1.10.30 Applying for an ATR
An application for an ATR must be:
- made in New Zealand; and
- made on the Application for an Agreement to Recruit under the Recognised Seasonal Employer Policy (NZIS 1141) form; and
- accompanied by the prescribed fee; and
- supported by evidence that demonstrates the employer meets the requirements set out at WH1.10.1 and WH1.10.10.