Employment Workplace Relations

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

Monday, 21 December 2015

Working Holiday Visa (Subclass 417) - Slovak Republic & Slovenia added to list of eligible countries

Slovak Republic and Slovenia have been added to the list of eligible countries for Working Holiday Visas (subclass 417). Applications from eligible Slovak Republic and Slovenia citizens should be lodged at, or posted to: Australian Embassy, Berlin, Germany Visa Office Wallstrasse 76-79 D-10179 Berlin, GERMANY ...

Sunday, 6 December 2015

Entrepreneur visa

Minister Dutton has announced a new Entrepreneur visa to encourage and attract innovators and entrepreneurs to come to or stay in Australia.  The new visa is one of a number of strategies under the newly announced National Innovation and Science Agenda. The new visa will assist in retaining highly educated and talented foreign students who have gained their knowledge base in Australia.  Graduates with STEM subject qualifications (science, technology, engineering and mathematics) or specific ICT and related...

Citizenship Bill 2015 passed

The Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 was passed by Parliament on 3 December 2015. Australian citizens aged 14 and over can have their Australian citizenship revoked or ceased if they are also a citizen or national of another country and participate in specific activities. Australian citizenship can be renounced or ceased for: engaging in international terrorist activities using explosive or lethal devices; engaging in a terrorist act; providing or receiving training connected with preparation...

Select Legislative Instrument No 211, 2015 - F2015L01937 - Migration Amendment (Offshore Resources Activity) Regulation 2015.

This Select Instrument specifies the visas that permit the holder to participate in, or support, an offshore resources activity in relation to an area. Section 9A was inserted into the Migration Act so persons who participate in, or support, an offshore resources activity are taken to be in the migration zone. These activities included the exploration or exploitation of minerals, greenhouse gas and petroleum resources within Australia’s Exclusive Economic Zone and the waters above the Continental Shelf. This section...

Breaking a Nut with a Sledgehammer – the use and abuse of PIC 4020

Public interest criteria (‘PIC’) 4020 was first introduced in April 2011 as a measure to attempt to reduce fraud in visa applications. Originally the provision only applied to General skilled migration and employer sponsored visa applications, however now, if any of the following visas are applied for, it is necessary to satisfy PIC 4020: skilled migration visas business visas temporary visas student visas family visas. In summary, the impact of PIC 4020 is that a visa can be refused if an applicant provides a bogus document or information...

Australian Working Conditions - Overseas workers – know your workplace rights

Pay rates and workplace conditions are set by Australian law. All people working in Australia, including those from overseas, have rights and protections at work. These cannot be taken away by contracts or agreements. If you have questions about your pay and conditions while in Australia, you can contact the Fair Work Ombudsman for information. Visit fairwork.gov.au for information for visa holders and international students. This includes information in 27 languages. There are also a range of helpful videos at www.youtube.com/fairworkgovau about...

Can my employer cancel my visa?

No. Employers cannot cancel visas. Only the Department of Immigration and Border Protection (DIBP) can grant, refuse or cancel visa...

Wednesday, 2 December 2015

Federal Court Judgement - Brown v Minister for Immigration and Border Protection

In Brown v Minister for Immigration and Border Protection [2015] FCAFC 141 (24 September 2015) a Full Court concluded the Minister did not make any jurisdictional error in ordering the visa of the appellant be cancelled under section 501 of the Migration Act 1958 (Cth) on conviction for crimes that attracted a sentence of more than one year's imprisonmen...

Monday, 30 November 2015

Refugee visas - inadvertent release of names of applicants

In the case of SZSSJ v Minister for Immigrtion and Border Protection [2015] FCAFC 125 (2 September 2015) in Feburary 2014 the Department of Immigration & Border Protection (DIBP) inadvertently published on its website the names and identifying details of 9528 people who had applied for refugee status and had been rejected (and were awaiting return to their home country) or whose applications had not been decided. A Full Court decided in four appeals brought by affected persons that the procedures set up the department (DIBP) to respond were...

Engineers Australia to accept TOEFL - January 2016

Engineers Australia have announced on their website that from 1 January 2016 it will be accepting the TOEFL IbT as an alternative English Language Test to address the English language competency element of the Migration Skills Assessment. Applicants submitting their application on or after the 1 January 2016 will be able to provide either an IELTS test result form with a score of 6 or more in each of the 4 modules, or a TOEFL IbT result with the following minimum scores for each module: Listening 12 Reading  13 Writing  ...

China Free Trade Agreement (ChAFTA) - Labour Market Testing (LMT)

The Minister for Immigration has determined that Labour Market Testing (LMT) for subclass 457 visa applications is inconsistent with the terms of the China Free Trade Agreement (ChAFTA) and therefore does not need to be conducted for the following natural persons covered under the terms of the ChAFTA: Executives, Senior managers and Managers as Inter-Corporate transferees Specialists as Intra-Corporate Transferees Independent Executives Contractual Service Suppliers  ...

Wednesday, 25 November 2015

Working Holiday Visa & Work and Holiday Visa (subclass 417 and subclass 462)

In order to extend the 6 months’ condition attached to 417 and 462 visas, visa holders must request the permission of the DIBP through Form 1445.   Permission may be granted if: a 417/462 visa holder has applied for an onshore work, training or spouse visa and employment can continue until a decision is made on one of those applications; or a 417/462 visa holder is working as an ‘au pair’, anywhere in Australia and the youngest child is less than 12 years old, for up to 12 months; or a 417/462 visa holder is working in: aged and...

Sunday, 22 November 2015

Enhanced visa arrangements for Indonesian visitors

The Australian Government will introduce an option of a three-year, multiple-entry visa for Indonesian visitors to Australia next year – an extension of the current one-year visa.  The new visa measures are designed to enhance tourism and business links between Australia and Indonesia...

Monday, 16 November 2015

Engineers Australia to accept English Language Test: TOEFL iBT

From the 1st January 2016, Engineers Australia will be accepting the TOEFL iBT as an alternative English Language Test to address the English language competency element of the Migration Skills Assessment. Applicants submitting their application on or after the 1st January 2016 will be able to provide either an IELTS test result form with a score of 6 or more in each of the 4 modules, or a TOEFL iBT result with the following minimal scores for each module: Listening: 12 Reading: 13 Writing: 21 Speaking: 18 Applicants will need to upload the...

Sunday, 15 November 2015

Offshore Skills Assessment Program (OSAP)

The Offshore Skills Assessment Program (OSAP) is an assessment pathway for visa applicants under the General Skilled Migration (GSM) visa program who are applying for a nominated occupation and hold a passport from a nominated country. OSAP skills assessments determine if applicants have the skills and experience necessary to work in Australia at the trade level for their occupation so that they can contribute immediately to the Australian workforce. The program currently covers the following occupations: • Air-conditioning and Refrigeration...

Tuesday, 3 November 2015

Do you know that there is more than ONE English exam?

For many years IELTS has always been the preferred method of English language test within the Department. However many applicants may not be aware that there are now other English exams accepted by the Department: Test of English as a Foreign Language internet-based test (TOEFL iBT); Pearson Test of English Academic (PTE); Cambridge English: Advanced test (CAE) – This test will only be accepted when complete on or after 1 January 2015. Occupational English Test (OTE) – This English exam is specifically designed for 12 Healthcare...

Thursday, 22 October 2015

457 Visas: Employer and employee obligations

457 Visas: Employer and employee obligations The highly publicised troubles of the 7-Eleven group highlights the need for all employers to be aware of their obligations to their employees, particularly if they are employing foreign workers. The current media attention centres around allegations  that foreign workers were paid at rates lower than should be paid for the type of work being done.   All employers are subject to scrutiny pursuant to the provisions of the Fair Work Act; in addition, employers of persons on 457 visas...

Sunday, 18 October 2015

Accountants - pass mark migration

In the last published Skill Select round (September 2015) the Department of Immigration & Border Protection (DIBP) only invited 20 Accountants for the 189 visa (instead of the normal 210 invites).   As a result this pushed up the invite pass mark to 70 points.   This is most likely due to the fact that so many Accountants have been invited in the State sponsored 190 and 489 visas and also as DIBP may want to keep places for later in the program year so that they guarantee obtaining the highest scoring candidates in their...

Western Australian skilled migration occupation list (WASMOL)

Applicants who have an occupation identified on the Western Australian skilled migration occupation list (WASMOL) may be eligible for Western Australian State nomination using the following visas:   Skilled Nominated visa (subclass 190) or Skilled Regional (Provisional) visa (subclass 489).   State nomination applicants will have to compete with all potential employees in the Western Australian labour market to secure any available or advertised position. For occupations which require licensing or registration before being...

Northern Territory Designated Area Migration Agreement (DAMA)

Because of its remote location and acute skills shortages in the Northern Territory, their government have negotiated a Migration agreement for companies to be able to more easily sponsor 457 visa holders. Where a Northern Territory employer is seeking a Temporary Skilled Migration Income Threshold (TSMIT) concession, the business will need to demonstrate that the salary being offered to a prospective overseas worker is no less favourable than what an Australian citizen or permanent resident could expect doing the same job in the...

Tuesday, 13 October 2015

Fair Work - Recovery of unpaid wages

A Private Members Bill has been introduced in the House of Representatives entitled the Fair Work Amendment (Recovery of Unpaid Amounts for Franchisee Employees) Bill 2015.   The aim of the Bill is to ensure employees are paid correctly, whether or not they are Australian citizens.  It will require more oversight by franchisers over the franchisee companies within their chains, to ensure legal minimum wages are paid to employees and the terms and conditions of employment meet the National Employment Standards (NES). The...

Monday, 12 October 2015

Skilled Migration Program pushed by Senator Nick Xenophon

Mr Nick Xenophon, the independent senator in Australia has forwarded his push for a new skilled migration program so that economically challenged areas in South Australia, his home state, can be boosted for everybody’s benefit. He believes that this move can lift the state out of its economic gloom. ”We need a targeted, sensible, business investment migration program for low population states and regions that would turbocharge the economies of those areas,” Senator Xenophon said on an interview with the AAP. The senator met with businesses...