Employment Workplace Relations

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

Corporate and Business Law

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.

Mediation

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 23 October 2014

Subclass 457 business sponsors - penalties, sanctions & enforcement

On 14 September 2009, the Migration Amendment (Worker Protection) Act 2008 (“the Worker Protection act”) gave effect to reforms to the temporary sponsored worker program (subclass 457). 

The laws introduced a new enforcement regime, including the introduction of civil penalty provisions.  The laws enabled the department of immigration to apply to a court (that is, an eligible court as defined in section 5(1) of the Act) for a civil penalty order or, alternatively, serve an infringement notice on a 457 business sponsor that is believed to have contravened a civil penalty provision. 

In addition to the civil penalty provisions, the administrative sanctions to bar a sponsor or cancel the approval of a 457 business sponsor were expanded to provide that action could be taken against all classes of approved sponsor in certain circumstances. 

On 1 July 2013, the Migration Act 1958 was amended to introduce enforceable undertakings as an alternative sanction option that may be applied if an approved 457 business sponsor is found not to have mat the applicable sponsorship obligations.  Enforceable undertaking may be used in addition to, or instead of, other administrative penalties available to the department of immigration.   

The various actions that may be taken in relation to approved 457 business sponsors or former approved sponsors are as follows: 

·         Bar or cancel the sponsor (under section 140M);

·         Serve an infringement notice

·         Obtain an enforceable undertaking

·         Pursue a civil penalty 

Business Monitoring

The department of immigration routinely monitors approved and former approved 457 business sponsors to determine their compliance with the sponsorship obligations.  Monitoring of sponsors typically requires the provision of records and documents, and may involve a site visit to the sponsor’s premises to interview visa holders, other employees and the sponsor. 

Wednesday 22 October 2014

$15m Premium Investor Visa (PIV) update

Minister for Trade and Investment Andrew Robb said that direct investment in residential real estate would not be a complying investment under the government’s proposed new Premium Investor Visa (PIV).

The PIV would offer a more expeditious pathway for international investors to permanent residency as compared to the existing Significant Investor Visa (SIV). Under the PIV a 12 month pathway to permanent residency would be available for investors meeting a $15 million threshold in an eligible investment.


At present SIVs are available for applicants making an eligible investment in Australia of at least A$5 million for a minimum of four years.

The Government said it would further enhance this programme to encourage more high net worth individuals to make Australia home and to leverage and better direct additional foreign investment.

Monday 20 October 2014

Abbott announces reforms to 457 visa program

The Prime Minster announced last week his plans to make changes to the 457 scheme to make the visa process more flexible and efficient  for business.

Ryan Curtis-Griffiths, Director at Nevett Ford, provided insight into the reforms for HC Magazine online.

The full article can be found on HC online.

Attention 457 business sponsors - Powers of immigration inspectors

Sponsoring and nominating employees from overseas to Australia on 457 visas requires your business to comply with a range of obligations. Nevett Ford Lawyers can provide guidance to ensure full compliance with Immigration Laws and Regulations, which constantly change. The Department of Immigration conducts random checks of businesses and we can help you to ensure that your business is complying.

Immigration inspectors have powers under the Migration Act 1958 that provide the mechanism for the department to investigatesponsor compliance with the visa program requirements.

Inspector powers include the right to:
  • enter business premises
  • require a 'person' to produce a record or document
  • inspect and make copies of records or documents
  • interview 'persons' while at premises.
For the purposes of exercising inspector powers, a 'person' includes a natural person or a body corporate.

The purposes for which the powers of an inspector may be exercised are:
  • to determine whether a term or a condition of a work agreement is being, or has been, complied with (e.g.in relation to a 457 visa holder employee);
  • to determine whether a prescribed circumstances to bar a sponsor or cancel the approval of a person as a sponsor exists;
  • investigate a circumstance, if a circumstance exists or has existed, in order to assist the Minister (or delegate) in determining what (if any) action to take under section 140M of the Migration Act 1958.
Nevett Ford Lawyers can provide audit services for employers to ensure that your immigration law obligations are being met to minimise risk. This includes advising your business on potential breaches and managing non-compliance issues on your behalf with the Department of Immigration to resolve them.

Wednesday 15 October 2014

Significant Investor Visa (SIV) Update - Victoria

The Victorian Government's October 2014 Significant Investor Update has been released

The update provides information from the Victorian Government on their activities to support and attract investor migrants to Victoria, through the Business Innovation and Investment Program’s Significant Investor Visa stream.

The document contains the following information:

  • Reforms to Significant Investor and 457 visa programs
  • Significant Investor nomination update
  • Victoria’s flexible visa nomination requirements
  • Victoria’s new feature web page for Chinese Significant Investors
  • Significant Investment Managers’ seminar
  • Victoria’s new Commissioner in Greater China
  • Information resources for Significant Investors
  • Significant Investor Services Director

Monday 13 October 2014

Significant Investor Visa (SIV) changes & creation of Premium Investor Visa (PIV) ($15 million) category


The Government today announced important changes to the Significant Investor Visa and creation of a Premium Investor visa. 

The new Premium Investor Visa (PIV) will require an investment of $15 million, nomination by Austrade and has no residency requirements.  PIV holders will be eligible for permanent residency after holding the complying investment for 12 months.

Other changes include:

  • the involvement of Austrade in the nomination of applicants on behalf of the Australian Government and in determining complying investment policy
  • allowing 'role swapping' between primary and secondary applicants during the provisional visa stage​
  • introduction of 180 day residency requirements for secondary visa holders​
  • changes to improve visa processing times
The changes will be made progressively through the 2014-15 programme year, with changes requiring legislative amendment expected to come into effect from 1 July 2015.

These changes will not apply to current SIV holders or current applications. 

Have you entered the Diversity Visa Lottery? Beware of fraudulent emails and letters!

The Department of State has issued a warning to all Diversity Visa Lottery entrants of an increase in fraudulent emails and letters sent to applicants. Be wary of websites requesting upfront registration payment or deposits as Diversity Visa fees can only be paid at the visa interview stage at the relevant U.S. Consulate/Embassy. The official Diversity Visa website will never ask for an upfront payment.

Please refer to the following link for further information: http://travel.state.gov/content/visas/english/general/fraud.html

Subclass 485 (temporary residence) Visa - you may be eligible if you're currently in Australia and studying a bachelor degree (or higher)

Are you studying a bachelor degree or higher in Australia and did you obtain your current student visa after 5 November 2011? 

You may be eligible for the subclass 485 (temporary residence) visa.

This visa has two streams:
  • Graduate work stream – for international students who graduate with skills and qualifications that relate to an occupation on the Skilled Occupation List (SOL): Schedule 1. A visa in this stream is granted for 18 months.
  • Post-Study work stream – for international students who graduate with an eligible qualification. This stream is only available to students who applied for and were granted their first student visa to Australia on or after 5 November 2011. A visa in this stream can be granted for up to four years, depending on the applicant's qualification.
To be eligible graduates must have completed their studies in Australia while on a qualifying student visa. A qualifying student visa is a subclass 572, 573 or 574.

English Language Intensive Courses for Overseas Students (ELICOS) Sector, Schools Sector and Foreign Affairs or Defence Sector students are not eligible unless they subsequently complete an eligible qualification on a qualifying student visa.

Applicants who have undertaken studies while on other visas that allow study, such as dependents of Temporary Work (Skilled) (subclass 457) visa holders, are not eligible for this visa.

In addition, applicants must:
  • be in Australia
  • be under 50 years of age
  • have attained an eligible qualification within six months of applying for the visa.
Post-study work stream

Graduates of an Australian bachelor degree (including honours), masters by coursework degree, masters (extended) degree, masters by research degree or doctoral degree can apply for this stream, provided they meet the other eligibility requirements.

The visa is only available to graduates who applied for their first student visa (including subclasses 570, 571, 572, 573, 574, 575, 576 or 580) on or after the introduction of the Genuine Temporary Entrant (GTE) requirement on 5 November 2011.

Graduate work stream

This stream is for international students who have recently graduated with skills and qualifications that relate to an occupation in demand in the Australian labour market, as determined by the Skilled Occupation List. Applicants in this stream must have completed a trade qualification, diploma or degree. Successful applicants are granted a visa of 18 months validity.

Sunday 12 October 2014

How do children adopted outside Australia become Australian citizens?

The way in which a child who is adopted outside Australia becomes an Australian citizen depends on how their adoption is/was finalised.  There are 3 different ways in which this can occur.

1. Adoptions finalised outside Australia - under full Hague Convention arrangements under section 19C of the Australian Citizenship Act 2007

The key requirements of section 19C are that:
    • at least one adoptive parent is an Australian citizen;
    • an adoption compliance certificate has been issued by the child's country of origin in accordance with the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption (Hague Convention); and
    • the adoption is recognised in Australia under the law/s of the Commonwealth and each State and Territory.
2. Adoptions finalised in Australia - under bilateral and simple Hague Convention arrangements.

Some of Australia's intercountry programs require the adoption to be completed after the child returns to Australia.  Where the final adoption order has been made in a State or Territory court after the child arrives in Australia as a permanent resident, and at least one of the adoptive parents is an Australian citizen, the child will automatically acquire Australian citizenship under section 13 of the Australian Citizenship Act 2007 (at the time the adoption order is made).

3. Adoptions finalised outside Australia - under other arrangements such as expatriate adoptions.

Where the adoption has been finalised outside Australia under other arrangements, and the adoption does not need to be finalised in Australia, children may be eligible, under subsection 21(5) of the Australian Citizenship Act 2007.  The child must have at least one adoptive parent who is an Australian citizen, must hold a permanent visa for entry into Australia (eg Adoption (subclass 102) visa) and have entered Australia on that visa.

What is the difference between the SOL and the CSOL?

Skilled Occupation List (SOL)

The current Skilled Occupation List (SOL) is relevant for applicants for:
  • independent points-based skilled migration who are not nominated by a state or territory government agency (such as the subclass 189 visa);
  • Temporary Graduate visa (subclass 485) - Graduate Work stream.
Consolidated Sponsored Occupation List (CSOL)

Whereas whe current Consolidated Sponsored Occupation List (CSOL) is relevant for applicants for:
  • points-based skilled migration who are nominated by a state or territory government agency under a State Migration Plan
  • the Employer Nomination Scheme (ENS), who must have been nominated by an Australian employer to fill a position in an occupation that appears in the CSOL (such as the subclass 186 and 187 visa)
  • the Temporary Work (Skilled) visa (subclass 457)
  • the Training and Research visa (subclass 402).

Wednesday 8 October 2014

New Character Provisions Likely


The Minister for Immigration has introduced a Bill that amends the Migration Act 1958 in terms of what is known as the character provisions.
 
The Bill has been referred to the Senate, Legal and Constitutional Committee for consideration.

If the Bill does become law in its present form a number of significant changes will be introduced including mandatory cancellation of a visa for an offence where the person has received a sentence of 12 months or more, or where they have committed a "sexually based offence involving a child"
 
One proposed amendment is a new s 501(6), the intention of which is to lower the threshold of evidence required to show that a person who is a member of a criminal group or organisation, such as a criminal motorcycle gang, terrorist organisation or other group involved in war crimes, people smuggling or people trafficking, does not pass the character test. The intention is that membership of the group or organisation alone is sufficient to cause a person to not pass the character test. 

Further, a reasonable suspicion of such membership or association is sufficient to not pass the 
character test. There is no requirement that there be a demonstration of special knowledge of, 
or participation in, the suspected criminal conduct by the visa applicant or visa holder.

These proposed changes, if made into law, will give the Government broad ranging visa cancellation powers. The existing powers of the Minister in relation to the character provisions are already quite extensive with the result that large numbers of visa holders (many of whom have been permanent residents of many years standing) have had their visas cancelled and forced to return to their country of origin.

The introduction of broader powers which can be exercised on the basis of a “reasonable suspicion” will undoubtedly expose a large number of visa holders to potential adverse action by the Minister ,and because a decision can be based on suspicion only, will be difficult to challenge.

 

Federal Court - review of adverse ASIO security assessments

In Jaffarie v Director General of Security [2014] FCAFC 102 (18 August 2014) Jaffarie was assessed by ASIO in June 2013 to be a risk to "security" under section 4 of the ASIO Act 1979 (Cth).  This triggered a number of decisions adverse to Jaffarie under the Migration Act 1958.  Jaffarie's action in the original jurisdiction of the High Court to challenge the assessment was remitted to the Federal Court and determined by a Full Court which dismissed it.

The Full Court considered how public interest immunity claims for information said to relate to national security were to be determined, how statements of reasons voluntarily supplied to the Court in confidence were to be considered, what constitutes a "serious threat" and what constitutes Australia's "territorial and border integrity". 

The Court rejected as misconceived an argument that the making of a security assessment constituted interference with judicial power of the Commonwealth.  It rejected a submission that the Minister of Immigration had denied Jaffarie procedural fairness, by considering classified material but only advising Jaffarie of unclassified reasons. 

Visa Targets Reached by Australian Immigration

It was recently announced that the target of the Australian Government to attract one hundred ninety thousand new migrants, in the latest financial year, was achieved.

The information from the Department of Immigration and Border Protection (DIBP) is showing that Australian industry benefited from some one hundred twenty eight thousand five hundred fifty places being granted within the stream of skilled positions.

Mr. Scott Morrison, the minister of DIBP, said that this is equal to almost sixty eight per cent of the programme. He also said that the skill stream is aimed towards giving assistance to filling the identified skill shortages in the country’s economy. He explained that it has resulted to giving the Australian economy the major boost that it needs.

Overall, in the year 2013 to 2014, more than sixty three per cent of visas given in the skilled stream was accounted for by occupational professionals. This was followed by twenty two per cent from trades workers and technicians, and nine per cent of the skilled stream visas granted to managers.
Over sixty per cent of skilled migration visas have been delivered within the designation that is sponsored by employers. This amounted to forty seven thousand four hundred fifty places. Six thousand one hundred sixty places were taken by business innovation and investment, and twenty four thousand six hundred fifty six visa categories were nominated by state and territory governments.

The family stream accounted for sixty one thousand one hundred twelve places, which represents around thirty two per cent of the migration programme. The family stream prioritised the reunion of the workers’ partners as well as their children.

Within this particular visa stream, forty seven thousand seven hundred fifty two places were accounted for by the partner category. This was equal to seventy eight per cent of the family sector. Meanwhile, in the child category, three thousand eight hundred fifty places was delivered. What remained of the family stream places were given within the other family (585 places), contributory parent (6,675), and parent categories (2,250).

”The delivery of a well-managed migration scheme demonstrates our capacity to carefully structure our programmes to deliver the size & composition required to meet the needs of the Australian economy,” said Mr. Morrison, also saying that the purpose of having migration is to drive the country’s economy, as well as shape society, and give the labour market the support that it needs and also to reunite family.

The largest source country of migrants for Australia was India, where it got thirty nune thousand twenty six places, or 23.1 per cent of the total. It was followed by China which got twenty six thousand seven hundred seventy six places. The third country is United Kingdom, which got twenty three thousand two hundred twenty places.

A breakdown of the figures however, has shown that the number of visas given to Indian applicants has decreased by 2.6 per cent. For China, the numbers also went down two per cent compared with the financial year before. For British people, the number of visas increased by seven per cent.
Most of the people settled in New South Wales. 33.7 per cent of the new migrants was in the state, and the numbers actually went up from 30.2 per cent in the prior financial year. The second largest number of migrants, which was 24..4 per cent was in Victoria, followed by 17.8 per cent in Western Australia.

It has been recorded that over the past decade, only Victoria and New South Wales were the only states that had decreases in the numbers of the total migration programme. The largest fall recorded in New South Walwes was 4.7 per cent in 2013/2014. During the same period, Victoria was down 2.8 per cent.

The largest increase in numbers over the past decade was recorded in Western Australia, which went up 5.8 per cent in the proportion of the migration programme. A 0.7 per cent increase was recorded in South Australia, and in the Northern Territory it saw a case of a threefold increase, going up from 0.5 per cent in 2003/2004, to 1.4 per cent in 2013/2014.

In the data, it also shows how the size and composition of the migration programme has been made flexible, and how it changed over the years. It was a much smaller programme that consisted of mostly family migrants in 1993/1994 that became a larger programme that consisted more of skilled migrants in 2013/2014.

The government is the one that sets planning levels each year. The size and the composition adapts to meet the country’s social and economic needs.

Source: www.AustraliaForum.com

Michael Pezzullo Appointed New Secretary of DIBP

Mr. Tony Abbott, the Prime Minister of Australia, has just appointed Mr. Michael Pezzullo, a long time public servant as well as a former staff of Labor, as the new secretary of the Department of Immigration and Border Protection (DIBP). This new appointment is going to officially take effect on Monday, the 13th of October of this year.

It has been twenty seven years ago since Mr. Pezzullo joined public service and he is currently a part of the Australian Customs and Border Protection Service. He is at present, serving as the agency’s chief executive.

In Mr. Abbott’s official statement, he says that Mr. Pezzullo has ”extensive experience in the public sector, predominantly in the Department of Defence in strategic policy and intelligence roles,” therefore would fit right in the role.

The newly appointed secretary also worked as an adviser to Mr. Gareth Evans, the former foreign minister. He also served as the former chief of staff to Mr. Kim Beazley, who was at that time the opposition leader.

Mr. Pezzullo is going to be replacing Mr. Martin Bowles, who was also recently appointed as the secretary of the Health Department.

Earlier this year, Mr. Fabio Pezzullo, Michael Pezzullo’s brother, was able to escape a criminal conviction after he made a confession that he did not tell the truth at an inquiry that was in the midst of investigating corruption at the Sydney Airport.

In a note sent to staff members with regard to the case that involved his own brother, Mr. Pezzullo said: ”From the outset, I asked & expected to be treated as a detached family member with no official rights, interests, or powers in the matter.”

Mr. Roman Quaedvlieg, the former Policing boss of the Australian Capital Territory (ACT), and the current deputy chief executive of the Customs department, is going to be heading the agency from hereon.

Source: www.smh.com.au

Immigration Analysis on Job Market Proven Wrong

It was reported a couple of weeks ago, by Dr. Bob Birrell, that the three hundred eighty thousand new arrivals of migrants have taken the entire net employment growth from the years 2011 to 2014. However, it looks like this analysis is not only incomplete, but it is also completely mistaken.
 
The analysis of Dr. Birrell does not take into account the effect of Australians and migrants alike who leave the labour market. His research is like taking apples from oranges, and the number of new migrants in their new jobs is a complete overestimation. It is true that at a rough estimate, there is around fifty per cent of new arrivals who are going to end up in newly made jobs. His original claim was ninety five per cent, and that is entirely not so.
 
What is even more worrying is that Dr. Birrell chose to ignore the labour market’s dynamic effects. He made an assumption that there are only so many jobs to go around has been rejected by many. Labour economists have known all along that there isn’t any fixed number of jobs. According to Mr. Paul Krugman, a Nobel Laureate, this bit of labour fallacy only ”feeds protectionism” and ”encourages fatalism.” The problem with encouraging such ideas is that policy-makers halt in thinking of other ways to create more jobs. The immigration system in Australia is one of the few programs among developed countries that is accounting for this. The skilled migration program of this country is not chosen by the government, but instead, is being driven by the employers.
 
So what exactly is there to know about the Australian labour market and the migrants? The immigration policies of Australia have benefits that are clear and striking. Research from OECD suggests migrants coming to Australia raise wages of jobs which are low-skilled. This helps a whole deal mitigating the harmful effects of the inequalities in income-earning. Right now, as shown by Mr. Bob Gregory, an economics professor in ANU, migrants who do now know how to speak in English begin being active in the labour market through part time work, and not unemployment, as how it all happened in in eighties. Over the long term, it has an economic effect which helps in cultural and social integration.
 
Furthermore, Migration Council Australia has conducted a research which revealed 3 quarters of people holding a 457 visa are doing their share in training Australian workers in a range of firms. In 2013, the largest survey was done on 457 visa holders and their employers. It only proved that this effect was especially applicable in multinational companies who are the ones who hire the most number of 457 visa holders in the country.
 
It is a fact that innovation usually happens outside of Australia. The presence of people is an important link to creating prosperity, and their continuous movement spreads knowledge. For Australia, the movement of human capital benefits its small and open economy and it shows as a natural advantage. In the United States of America, t has been proven that there is a strong connection between research patents and temporary skilled workers.
 
What is unfortunate is that we know all too well there are a lot of people out there abusing the system. There are some employers who break the law for their personal gain. One of the things they do is forcing migrants to render longer hours even if they are paying lower than the market rate and in cash. As a bargaining chip, they also hold out the possibility of another visa just to get them to keep doing what they’re doing, even if it isn’t lawful. However disgraceful their actions are, the employers who do these are in the minority. According to the temporary skilled migrants who took the survey, only five per cent of employers are not doing their obligations.
 
To stop instances of mistreatment, more resources are being deployed, such as giving the Ombudsman of Fair Work Australia the freedom to investigate and find ways to defeat exploitation. Hopefully, the response of the Abbott Government to the newly concluded enquiry into the 457 visa program will implement a more detailed check for wages in the market. The foundation of a successful migration framework is the principle of the equality in wages for equal work.
 
The benefits the labour market is getting from migration isn’t exactly a distinctive phenomenon in Australia. There is a serious global research agenda that shows how big the imact is of immigration when it comes to domestic populations, and it’s almost always either neutral or agreeably positive. This becomes more obvious when skilled migration is being discussed for a developed country, one of them being Australia. At the same time, the benefits the migrants get for themselves are noteworthy, as are the benefits of the links the country forms with other bigger economies and important trade partners.
 
Works of those who are heavily opposing the immigration program based on fake numbers, such as the one by Dr. Birrell, drowns out the real questions Australians should be focusing on to get the answers regarding immigration policy. How will this global agenda affect Australia? In what way does inequality and immigration interact in our country? When it comes to global development, what role will the Australian immigration play which would benefit all of us? All these queries are going to define our own immigration policies in the twenty first century, and it’s about time that we start taking these things seriously. It’s for everybody’s own good, and our economy’s — and it’s future’s — prosperity.
 
Source: TheAge.com.au by Carla Wilshire

Thursday 2 October 2014

Government announces a crackdown on 457 visa fraud

The Coalition government has announced a crackdown on 457 visa fraud, with up to 100 employers to be investigated over allegations they sponsored applications in return for payment, Assistant Immigration Minister Michaelia Cash announced yesterday.
Senator Cash said the compliance campaign involved an "initial assessment" of the 100 sponsors, but also had an educational component — Work visa scams. Don't pay the price — targeting both employers and visa holders.
The Minister said sponsors identified as having failed to meet their obligations could face administrative sanctions, infringement notices, enforceable undertakings or Federal Court civil penalty applications.
"A business that sponsors a visa holder under false pretences may also be committing other offences, such as providing false or misleading information or engaging in misleading or deceptive conduct," she said.
"Visa holders who enter into contrived employment relationships for migration purposes may also be guilty of fraud related offences and/or not meet immigration requirements, including the genuineness criterion."
The Minister said a "small minority" of those involved in migration programs attempted to defraud them or did not abide by their obligations.
The immigration department already has a dob-in service that enables the public to report in person, online, or by phone, fax or mail.