Increased flexibility for RSE workers

08 Jul 2020

In response to the COVID-19 pandemic, the Minister of Immigration has granted a special direction to issue new limited visas to stranded Recognised Seasonal Employer (RSE) workers who qualify.

The horticulture and viticulture industries do not have sufficient seasonal work over the winter months for all the RSE workers stranded in New Zealand. But as RSE limited visa holders they can only work for RSE employers with a current Agreement to Recruit (ATR), and are unable to apply for another visa while they are in New Zealand.

Whilst we continue to work with Pacific governments to support the repatriation of workers, we are trying to keep RSE workers in work and meeting welfare needs.

 

Class of people to who the grant of a limited visa applies

To qualify for the grant of a limited visa, they must:

  • hold a current RSE limited visa which is not associated with a current ATR; and
  • have a valid offer of employment with a RSE Employer who –
    • has guaranteed a minimum of 15 hours per week
    • submits an undertaking to INZ (see below) in which they agree to honour RSE commitments and provide pastoral care.

 

Limited Visa

If they qualify, they would be granted a limited visa which would be valid until 30 October 2020. This visa allows them to work in any industry and doing any role while awaiting repatriation, so long as the work has been pre-approved by MSD and/or the Labour Inspectorate, and the RSE employer remains the employer. The worker is also required to continue to have acceptable medical insurance.

 

Submitting an undertaking

If you are an RSE employer and your ATR has expired, you can submit an undertaking to INZ. The undertaking outlines the commitments you are making for the RSE workers who are included in the undertaking.

 The undertaking is in the documents section, at the bottom of this webpage.

 The undertaking commits you to:

    • continue to meet RSE commitments to the worker and INZ, including to provide relevant pastoral care to the worker and pay for half of flights
    • ensure the worker will only undertake work that has been pre-approved by MSD, confirming that the work will not impact on work opportunities for New Zealanders
    • ensure any third party you collaborate with to provide work is not on the stand-down list of non-compliant employers
    • work with relevant parties and authorities to coordinate the repatriation of the worker as soon as practicable

Before submitting the undertaking to INZ, you must:

  • get informed consent from any worker you wish to name in the undertaking
  • get MSD approval – submit the completed MSD Consultation form (attached)  to your MSD liaison person. MSD must be satisfied that the employment will not impact on work opportunities for suitable New Zealand workers
  • get Labour Inspectorate (LI) approval (if required) – submit the Labour Inspectorate Consultation form (attached) to the LI if there are changes to the RSE workers accommodation, pay deductions, if the workers are changing to a new RSE employer, or if there is a third party contract for services arrangement. If the RSE worker is remaining with the same employer and in the same accommodation, the only change is the hours, you do not need to contact the LI.

You must submit to INZ:

  • a completed undertaking; and
  • the MSD Consultation form; and
  • the Labour Inspectorate form (including if there were no changes and you weren’t required to consult with the LI); and
  • a completed excel spreadsheet (attached) with details of the RSE workers included in the undertaking

Send the undertaking and supporting documents to RSEUnit@mbie.govt.nz and include the subject line SPECIAL DIRECTION or click here to email us.

Note – this is not an application and there is no fee.

Once you submit the undertaking, we will check if the RSE workers qualify. If they do, they will be granted new limited visas. If they do not qualify, we will notify you.

 

Time in New Zealand

The period a RSE worker is stranded in New Zealand due to the COVID-19 disruption will not be taken into account when calculating the earliest date they can be granted a visa for the upcoming 2020/2021 season.

 

Annual cap

The RSE scheme has a cap on the number of visas that can be issued in a 12 month period. Government has decided that the current cap of 14,400 workers will be maintained for the 2020/21 season. Border restrictions continue to apply, but the cap decision has been made now to enable RSE employers and workers to plan ahead as much as possible, and to maximise opportunities for New Zealanders.

 

For more information please see the following website https://www.immigration.govt.nz/about-us/covid-19/recognised-seasonal-employers-rse-covid-19-information

 

Documents:

Press release - 8 July

RSE - Labour Inspectorate Consultation Form

RSE MSD Consultation Form 8 July

Undertaking Form

VOC and LV employee data for RSE Unit

 

 

Questions and Answers:

Why should I try to get workers on this visa?

RSE Limited Visa holders can only work where there is an approved Agreement To Recruit (ATR). This is subject to restrictions (including guaranteeing 30 hours of remuneration per week and to work only in seasonal horticulture work). 

When the Agreement To Recruit (ATR) associate with a worker has expired, and you do not have enough seasonal work to apply for a new ATR for the worker, and there is no other RSE employer that is able to guarantee this work, then your workers will not be able to work legally in New Zealand under the RSE Scheme.

The visa granted by special direction removes the limits on the type of work that can be done and reduces the hours of work you need to guarantee to 15 hours per week, so long as the work is pre-approved by MSD. You can also enter into a contract for services arrangement to find more work for your workers. However, as the RSE employer, you will retain the employment relationship and remain responsible for providing pastoral care.

 

What do I need to do to get my workers on this visa?

If you are an RSE employer and the ATR associated with a worker has expired, you can submit an undertaking to INZ. The undertaking outlines the commitments you are making to the RSE workers who are included in the undertaking.

Before submitting the undertaking to INZ, you must:

  • get MSD approval – submit the MSD Consultation form to your MSD liaison person. MSD must be satisfied that the employment will not impact on work opportunities for suitable New Zealand workers,
  • get Labour Inspectorate (LI) approval (if required) – submit the Labour Inspectorate Consultation form to the LI if there are changes to the RSE workers accommodation, pay deductions, if their workers are changing to a new RSE employer, or if there is a third party contract for services arrangement. If the RSE worker is remaining with the same employer and in the same accommodation, the only change is the hours, you do not need to contact the LI.

You must submit to INZ:

  • completed undertaking; and
  • MSD Consultation form; and
  • Labour Inspectorate form (including if there were no changes and you weren’t required to consult with the LI); and
  • the list of the RSE workers who are included in the undertaking (complete the excel spreadsheet sent in the email from INZ – please do not submit as a PDF)

What is an undertaking? How is this different to an ATR?

The undertaking, in this context, is a formal document that outlines commitments you are making to INZ in relation to the workers that get granted the visa by special direction.  If the undertaking is not given, in the required format, the workers will not be granted the visa by special direction.

The undertaking, combined with the MSD and LI consultation forms, fulfils a similar purpose to that of an ATR. In the undertaking you are signing up to meet RSE status obligations in relation to these workers, except for those relating to the 30 hours minimum remuneration requirement and the restriction on the type of work or roles workers can do. 

 

What are my undertaking obligations, and how do they compare to my RSE status obligations?

The RSE employer commits to:

    • continue to meet RSE commitments to the worker and INZ, including to provide relevant pastoral care to the worker and pay for half of flights
    • ensure the worker will only undertake work that has been pre-approved by MSD, confirming that the work will not impact on work opportunities for New Zealanders
    • ensure any third party they collaborate with is not on the stand-down list
    • work with relevant parties and authorities to coordinate the repatriation of the worker as soon as practicable

What happens if I don’t fulfil my undertaking obligations?

Immigration instructions have been updated to reflect that breaching your undertaking obligations will be considered in further ATR or status applications. This means that for all intents and purposes (except for the type and hours of work), you should treat these workers as you would RSE Limited Visa holders under the RSE scheme.

 

Do I have to guarantee work until 30 October?

You need to guarantee 15 hours of work until the worker repatriates or 30 October 2020.

 

What happens after 30 October if the workers cannot be repatriated?

One of your commitments is to work cooperatively with relevant parties to repatriate the workers as early as possible. Further limited visas for the same express purpose (to earn an income while awaiting a flight to depart New Zealand) may be granted, but you will need to demonstrate that you have done all you can to repatriate the worker.

 

For non-RSE employers

I understand that RSE workers can now work in other industries. How can I get an RSE worker to work for me?

You will need to enter into a contract for service arrangement with an RSE employer. You may want to seek legal advice.

Your contract for service arrangement will need to be conditional on:

  • you not being on the stand-down list, and being a compliant employer approved by the Labour Inspectorate.
  • MSD approving that the work will not impact opportunities for New Zealanders.
  • Labour Inspectorate being satisfied that appropriate pastoral care will be provided.

What responsibilities would I sign up to as a Third Party?

  • The RSE Employer retains the employment relationship and responsibility for pastoral care. You will need to develop a contract for service arrangement with the RSE employer to agree how responsibilities will be met.

Does the RSE employer have to directly supervise the work?

It is not required under this visa, but all parties need to fulfil relevant health and safety, employment and immigration obligations.

Do I engage with MSD to get approval or does the RSE employer do that?

The RSE employer should submit the MSD consultation form to their MSD liaison person and include details of the work including the work you are offering.

 

Questions from workers

How do I know if I am eligible for this visa?

You must hold a valid RSE Limited Visa to qualify. If you are not currently working under an ATR, you are eligible to be granted this visa, so long as an RSE employer comes forward and submits an undertaking and names you in the undertaking. You will need to have an appropriate employment agreement with them.

 

How do I know if my employer is putting me forward for this process?

Your employer needs your full knowledge and informed consent before identifying you for the visa.

 

How do I know if I have been granted this visa?

INZ will email you confirming you have been granted this visa with a new eVisa letter which will include the visa conditions.

 

What are the conditions on this visa?

This visa is a limited visa. The express purpose is to enable you to earn an income while waiting for a flight to return home. This means you cannot apply for any other type of visa while you remain in New Zealand, and the expectation is that you will leave as soon as there is an opportunity for you to go home.

The visa enables you to work for a specified RSE employer in any role (not only horticulture seasonal work). However, you can only do work that has been approved by MSD. You should ask your employer to show you the MSD confirmation form for any work that they ask you to do.

The RSE employer is still responsible for providing pastoral care, including your accommodation. You also need to have medical insurance for the duration of the visa, which your employer can help you access.

 

How do I know when I can work and when I can’t? 

You should ask your employer to show you MSD confirmation form for any work you are asked to do.