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Director, Philip Brewin is a specialist in Workplace Relations and heads our Workplace Relations Work Group.

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The Nevett Ford Corporate and Business Law team has a wealth of experience and expertise and have established quality relationships with clients, including many small and medium business enterprises, across a wide range of industries.

Dispute Resolution ( Litigation)

Nevett Ford has wide experience in all manner of litigation.

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Mediation is a process and set of principles designed to manage and resolve disputes between parties. It is an efficient and effective method of dispute resolution that can help to preserve relationships through the intervention of a third party, known as a mediator.

Property Law

Nevett Ford has been conveying Victorian property for more than 150 years.

Thursday 30 January 2014

Superannuation Refunds for Temporary Workers in Australia




In Australia it is compulsory for employers to pay superannuation to their employees in order that they will have funds available for retirement. Under legislation, minimum provisions are compulsory for employees. From July 2013, the minimum figure is 9.25% of salary, but people are encouraged to put aside additional funds as well. The minimum obligation is set to increase to 12%, gradually stepping annually from 2013.

Because of this minimum contribution it is always necessary, when negotiating an employment package, to clarify whether the salary being offered is inclusive or exclusive of superannuation

An individual can withdraw funds out of a superannuation fund when the person meets one of the conditions of release contained in Schedule 1 of the Superannuation Industry (Supervision) Regulations 1994. For most people, this is when they reach retirement age.

For overseas residents working temporarily in Australia it of course makes no sense to lock their funds up for years, and it is possible for them to apply for a refund of superannuation contributions once they have left Australia.

In order to qualify for a refund, it is necessary to demonstrate that you visited on a temporary visa with work rights (excluding retirement visas), that your visa has expired or been cancelled, and you have departed Australia.

If you have claimed a refund of superannuation, you are able to return to Australia on another visa while that claim is being processed. Note that the refund provisions do not apply to New Zealand citizens as they have the right to return, and work in Australia at any time.

An application for refund of superannuation can be made online. It is also possible to lodge a paper-based form, however if you do this, more work is required of you. If the on line option is adopted the taxation office will do all of the necessary work and forward your payment to you, all at no cost, although withholding tax, generally at a rate of 35%, will be taken out of your super payment superannuation payment before it is remitted to you.

The Departing Australia Superannuation Payment (DASP) online application form can be found at: www.ato.gov.au/departAustralia

Wednesday 29 January 2014

Changes to Public Interest Criteria (PIC4020)


Amendments to the Migration Regulations 1994 (the Regulations), which will take effect from 22 March 2014, seek to prevent identity fraud in Australia’s visa and citizenship programs, by expanding the application of Public Interest Criterion (PIC) 4020 – so that a relevant visa is not granted unless the Minister is satisfied of the identity of the visa applicant.

PIC 4020 was introduced in 2011 to strengthen the integrity of Australia’s immigration program by detecting and preventing visa fraud.  PIC 4020 provides a ground to refuse to grant a visa where there is evidence that the visa applicant has given, or caused to be given, a bogus document or information that is false or misleading in a material particular in relation to:

•             the application for the visa; or

•             a visa that the applicant held in the period of 12 months before the application was made.

PIC4020 currently applies to over 80 onshore and offshore visas in the students, skilled, temporary and family caseloads.  PIC4020 does not currently apply to refugee, humanitarian or protection visa applicants.  The proposed amendments will not impact on the refugee, humanitarian and protection visa caseloads as these visas are not currently subject to PIC4020. 

Overview of changes

The proposed changes will amend PIC 4020 to introduce a specific identity requirement into the grant of a visa. The features of the proposed identity requirement are:

•             a visa must not be granted unless the Minister is satisfied of the identity of the person; and

•             a decision to refuse to grant a visa where the Minister is not satisfied as to the identity of an applicant would not be subject to waiver; and

•             a ten year exclusion period for grant of another visa would apply where an applicant is refused a visa under PIC4020 on identity grounds.

A decision to refuse to grant a visa where the Minister is not satisfied as to the identity of an applicant would not be subject to waiver.  Because of the foundational element of identity to the integrity of Australia’s migration program, it is appropriate that the exclusion period is greater where a visa is refused on the grounds of identity.  A ten year exclusion period is substantially more than the current three year period under PIC4020 for other types of fraud, but less than a life-time ban. The Department claims that a ten-year exclusion period would better align with the policies of Australia’s Five Country Conference (FCC) partners.  The Department also claim that it would reduce Australia’s potential status as a country of ‘last resort’, where an individual may exhaust their options for migration to other FCC countries before applying to Australia.

In addition, under the proposed amendments, an applicant refused a visa under PIC 4020 on identity grounds would be subject to a ten year exclusion period for the grant of another visa.  This reflects the Government’s view of the primacy of accurately identifying non-citizens to the integrity of Australia’s migration program, and is intended to act as a deterrent.

The new identity requirement is designed to encourage cooperation and compliance by visa applicants with the Department to ensure accuracy in establishing their identity.  The new identity requirement would also cater for an applicant who does not cooperate and provide information or documents where requested to assist the Department to be satisfied as to their identity.  This is because under the new identity requirement, the Minister must be satisfied as to the identity of an applicant to grant a visa.  If insufficient information/documents are provided, or an applicant becomes uncooperative, the visa would be refused.  The Department would have discretion to consider a range of identity-related documents (not only a passport), as well as individual applicant circumstances (such as the availability of identity documents to the applicant) in determining whether it is 'satisfied' as to the identity of an applicant.
 
Please contact Ryan Curtis-Griffiths, Director, Nevett Ford Lawyers Melbourne by email: rcurtisgriffiths@nevettford.com.auor by telephone: +61 3 9614 7111 if you require any advice or assistance.

Thursday 9 January 2014

457 Sponsors: Pay Your Own Way


457 SPONSORS: PAY YOUR OWN WAY

Significant reforms to the subclass 457 visa were made on 1 July 2013. These included changes to sponsor obligations relating to ensuring the primary sponsored person works in the nominated occupation, not recovering, costs, and providing training.

The following information will address some common questions that have been raised by employers about the obligation not to recover, transfer or take actions that would result in another person paying certain costs.

What changes have been made to this obligation?

Previously, sponsors were obligated not to recover certain costs from a primary sponsored person or their family. Since 1 July 2013, in addition to the existing requirement not to recover certain costs, sponsors cannot transfer or take any action that would result in another person paying those costs.

Specifically, sponsors must not pass on the following costs:
  • sponsorship and nomination charges
  • migration agent/ lawyers costs associated with the lodgement of sponsorship and nomination applications
  • administrative costs and any sundry costs an employer incurs when they conduct recruitment exercises.
Sponsors fail this obligation if they pass or transfer these costs to others and the department may take actions such as barring or cancelling the sponsor from using the program, issuing an infringement notice, inviting the sponsor to enter into an enforceable undertaking or applying to a court for a civil penalty order.

FREQUENTLY ASKED QUESTIONS (FAQs)

I was an approved sponsor before 1 July 2013, and the overseas worker I want to sponsor lodged their application before 1 July 2013. Would I breach the new requirements of this obligation if the worker paid any of the costs listed above upfront?

Before 1 July 2013 sponsors were obliged not to recover (or seek to recover) the costs described above.

The strengthened obligation will not be applied retrospectively. In other words, if you did not recover (or seek to recover) costs before 1 July 2013, you will have met your obligation not to recover costs. From 1 July 2013, you were also required not to transfer or take any action that would result in another person paying the costs described above.

Any action or payments by a visa holder of these costs post 1 July 2013 would be a failure by the sponsor to meet this obligation.

Aren’t nominations related to the visa applicant, and therefore shouldn’t they be able to pay for the costs associated with the nomination?

Applications for nomination and sponsorship are made by prospective or approved sponsors and cannot be made by the visa holder. These costs are inherently a cost of being or becoming an approved sponsor and must be borne by the sponsor. If a visa holder pays for sponsorship or nomination costs on behalf of the sponsor (after 1 July 2013), this is a failure of this obligation.

What constitutes recruitment costs that must not be recovered, transferred or charged to sponsored persons?

Recruitment costs include costs paid in connection with finding and attracting an employee—what these costs include will depend on the specific circumstances of an individual case.

The costs associated with the visa application (including migration agent / lawyer fees associated with lodging the visa application) are usually paid for by the visa applicant, however, in some circumstances these costs may be considered to be recruitment costs. For example, if a sponsor agreed to pay the visa application charge (and associated migration agent fees) in order to attract a prospective 457 employee, these costs would be considered recruitment costs.

Please contact Ryan Curtis-Griffiths, Director, Nevett Ford Lawyers Melbourne by email: rcurtisgriffiths@nevettford.com.au or by telephone: +61 3 9614 7111 if you require any advice or assistance.