WH1.10 Agreement to Recruit (ATR)

1. 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 residence class visa holder 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.
2. The availability of suitable New Zealand citizen or residence class visa holder workers will be assessed in consultation with the Ministry of Social Development.

WH1.10.1 Requirements for an ATR

1. An application for an ATR will only be approved where the employer holds RSE status (WH1.5).
2. INZ must be satisfied that the employer has taken all reasonable steps to recruit and train New Zealand citizens or residence class visa holders for available positions before seeking an ATR to recruit workers who are not New Zealand citizens or residence class visa holders. Evidence to support the employer's case for requiring an ATR must be provided with each application for an ATR.
3. Each application must include the following information:
   1. the region(s) of seasonal demand; and
   2. the number of workers required; and
   3. the nature of each position (planting, maintaining, harvesting, or packing crops); and
   4. the period for which each position is available (start and end date of employment); and
   5. the location where the non-New Zealand citizen or residence class visa holder workers will be working; and
   6. the country or countries from which the employer intends to recruit their workers; and
   7. 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. Compliance with the requirements set out in WH1.20 includes ensuring the employment agreements of RSE workers are updated as required to reflect any changes to the RSE minimum remuneration as a result of an increase to the New Zealand minimum wage.

4. 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 these instructions (except where WH1.5.5(d) applies).
5. 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, INZ may grant a visa allowing work for each RSE (if requirements at WH1.10.1 (h) and (i) are met).

   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 unless WH1.15.20(d) or WH1.15.20(e) applies.

6. 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:
   1. transportation to and from the port of arrival and departure; and
   2. an induction programme; and
   3. suitable accommodation; and
   4. transportation to and from the worksite(s); and
   5. access to personal banking; and
   6. access to lawful and reputable remittance services; and
   7. access to acceptable medical insurance (see WH1.25); and
   8. provision of personal protective equipment; and
   9. provision of onsite facilities (toilets, hand washing, first aid, shelter, fresh drinking water); and
   10. necessary language translation, e.g. for health and safety purposes; and
   11. opportunity for recreation and religious observance.
7. An RSE who holds an ATR must:
   1. comply with the conditions of the ATR; and
   2. provide all prospective non–New Zealand citizen or residence class visa holder workers to be employed under RSE instructions with a written employment agreement that meets the requirements set out in WH1.20; and
   3. comply with the terms and conditions of the employment agreements; and
   4. 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 instructions, 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
      • minimum sick leave requirements; and

        Note: The minimum remuneration specified at WH1.20.5(a)(iv) applies to all RSE workers who are linked to an existing ATR and hold a valid RSE limited visa. From 1 October 2023, any increase to the New Zealand minimum wage means that the minimum remuneration for all RSE workers will increase accordingly to 10 percent above the New Zealand minimum wage.

   5. comply with any request from the Ministry of Business, Innovation and Employment (the Ministry) to audit the RSE against RSE instructions and the conditions of the RSE’s ATR and employment agreements; and
   6. pay to the Ministry any costs reasonably incurred by the Ministry, 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 visa; and
   7. inform the Ministry of the expected departure date of non–New Zealand citizen or residence class visa holder workers employed under RSE instructions once bookings for outward flights have been made; and
   8. arrange, but not necessarily pay for, acceptable medical insurance WH1.25) for workers recruited under RSE instructions for the duration of their stay in New Zealand.
8. In cases where two or more employers apply for ATRs to provide consecutive periods of employment to the same workers, each employer must provide:
   1. full details of how the pastoral care and health and safety requirements set out at (f) above will be arranged by the employers (including accommodation arrangements for both or all periods of employment); and
   2. the start and end dates in which RSE workers will work for each employer during their visa.
9. If the requirements at (h) above are met and INZ is satisfied that appropriate pastoral care will available to workers for the duration of their visa, immigration officers may grant an RSE limited visa valid for any or all periods of employment within the term of the visa.

   Note: For the purposes of these instructions, 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

1. An ATR will be approved only where:
   1. the appropriate regional Work and Income office(s) has been advised of the RSEs vacancies; and
   2. INZ, in consultation with MSD, is satisfied that there are no suitable New Zealand citizen or residence class visa holder workers available to undertake the work; and
   3. there are sufficient places remaining within the annual limit (see WH1.1.15), for the grant of visas under these instructions; and
   4. INZ is satisfied that the requirements set out in WH1.10.1 and WH1.10.10 and WH1.10.35 are met.
2. 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.
3. 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.
4. Any supporting documentation to verify a regional labour shortage will be considered.
5. INZ will decline an application where the employer (including any person associated with the employer who is able to influence the recruitment, employment or supervision of workers of that employer) or any relevant third party (see WH1.10.1(d) and (e)) has a history of non-compliance with immigration or employment law, including if they fail to meet the requirements set out at W2.10.15 and W2.10.20 or are currently included on a list of non-compliant employers maintained by the Ministry of Business, Innovation and Employment (MBIE) (see Appendix 10 and Appendix 18).
6. INZ may decline an application where the employer has breached the obligations of any undertaking made to INZ, other than of a minor nature, in relation to:
   1. RSE limited visa holders stranded in New Zealand as a result of the COVID-19 pandemic to enable them to benefit from a special direction of the Minister of Immigration granting limited visas to a class of persons; or
   2. the RSE approved class of worker border exception category (see items (e) and (f) of H5.30.20(c)); or
   3. RSE limited visa holders to enable them to benefit from a special direction of the Minister of Immigration granting limited visas to a class of persons.
7. INZ will decline an application where the employer (including any person associated with the employer who is able to influence the recruitment, employment or supervision of workers of that employer) has been convicted at any time of an offence under the following sections of the Crimes Act 1961: section 98 (Dealing in slaves), section 98C (Smuggling migrants), section 98D (Trafficking in persons).

WH1.10.10 Pacific countries eligible for the recruitment of workers

1. 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 (b) below applies:
   • Federated States of Micronesia
   • Fiji
   • Kiribati
   • Nauru
   • Palau
   • Papua New Guinea
   • Republic of Marshall Islands
   • Samoa
   • Solomon Islands
   • Tonga
   • Tuvalu
   • Vanuatu.
2. ATRs will only be granted for recruitment of citizens other than those listed above where INZ is satisfied that:
   1. reasonable attempts to recruit from the eligible Pacific countries have not been successful (see WH1.10.15); or
   2. the RSE has pre-established relationships with workers from countries other than the eligible Pacific countries (see WH1.10.20); or
   3. the RSE has reasonable grounds for why it is not feasible to recruit from the eligible Pacific countries.
3. 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:

1. 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
2. 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

1. 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):
   1. the number of workers employed from each country, relative to the total number of workers employed by the employer; and
   2. the number of previous occasions on which workers have been recruited from these countries; and
   3. the length of time for which these workers were employed; and
   4. whether the employer has made a substantial investment in establishing formal training opportunities or recruitment processes with workers or communities within these countries.
2. 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 visas granted:
   1. under the Seasonal Work Permit instructions; or
   2. under a Working Holiday Scheme; or
   3. under the Transitioning to Recognised Seasonal Employer instructions; or
   4. under the Supplementary Seasonal Employment instructions; or
   5. on the basis of a Variation of Conditions to a visitor visa.; or
   6. under the RSE limited visa instructions where the worker remained onshore after the initial expiry date of that RSE limited visa as a result of the COVID-19 pandemic (see WH1.10.10(b)(iv)).
3. 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.
4. When making a determination under (c) above, INZ may take into account such factors as:
   1. 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
   2. 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 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:

1. made in New Zealand; and
2. made on the Application for an Agreement to Recruit (INZ 1141) form; and
3. accompanied by the prescribed fee; and
4. supported by evidence that demonstrates the employer meets the requirements set out at WH1.10.1 and WH1.10.10.

WH1.10.35 Worker accommodation must not exacerbate housing pressures

1. INZ must be satisfied that the accommodation proposed for RSE workers will not exacerbate residential housing pressures.
2. RSE worker accommodation is considered to exacerbate residential housing pressure if it is a residential house which was not included in an ATR approved before 26 September 2019 and the accommodation meets the following region and restriction conditions:

Note: For the purposes of these instructions, "residential house" does not include boarding houses or guest accommodation such as home-stays (or similar arrangements), nor houses built specifically to provide seasonal worker accommodation.

Effective 11/04/2024