Migration Law Update: Big Brother is Watching

One of the government’s recent announcements around the Australian 457 Visa program which appears to have gone relatively unnoticed is that from December this year the Department intends to start collecting tax file numbers of 457 Visa holders and other employer-sponsored migrants for the purpose of matching that information with Australian Taxation Office (ATO) records to ensure that Visa holders are not paid less than the nominated salary.

Unfortunately, the underpayment of workers who have poor English skills and are on visas is a chronic problem in the Australian workspace. It was recently reported by the Fair Work Ombudsman that of all requests for assistance from the Ombudsman in 2016/17, 18% came from workers on visas – an increase on the previous year and significantly disproportionate to the number of workers on visas. It was also reported that half the cases that made it to court involved a visa worker.

Another announcement which has also received little publicity but which should be of concern to employers is that by December the Department intends to publish on its website details relating to sponsors sanctioned for failing to meet various statutory obligations, including their migration law sponsorship obligations.

The wording of the announcement makes it very clear that not only breaches of migration obligations which will be published. At this stage the types of obligations which are being contemplated have not been detailed but could, for example include failure to pay tax and breaches of workplace laws – being issues that prospective employees might be interested in knowing about before deciding whether or not to accept an offer of employment. It is also not clear what timeframes are contemplated – for example will it only be in respect of breaches committed from December this year or does it include past breaches? If so, how far back do they propose to go and how long will details be published before the publication is withdrawn. Also, what appeal rights if any will employers have in respect of any grievances regarding the accuracy of the publication process.

Until more details are published these questions will remain answered but are issues that all employers should be aware of and concerned about.

Please contact Nevett Ford Lawyes for migration law and visa advice.

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457 visa changes about flexibility - Prime Minister Tony Abbott

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Prime Minister Tony Abbott says he will overhaul the 457 visa scheme as part of his innovation and competitiveness agenda.

Mr Abbott says he wants to make changes to the scheme to make the 457 visa process more flexible for business.

The Federal Government says the current 457 visa scheme is too rigid and any changes are not a way of substituting overseas labour for domestic labour.

Those planned changes include streamlining the processing of sponsorship, nomination and visa for low-risk applicants.

And they include increasing the sponsorship-approval period from 12 to 18 months for start-up businesses.

The Government says that would give start-ups more time to make their businesses sustainable.

There would also be more flexible English-language testing and skill requirements for 457 applicants. Mr Abbott says safeguards would be kept in place to prevent exploitation and protect local workers.And he says the Government would continue to require foreign workers be paid the same as Australians.

"We want these to be more flexible, and we want these to be a way of helping business to grow. 457s are not a way of substituting overseas labour for domestic labour. They are a way of helping Australian businesses to grow so that Australian workers have more opportunities and higher wages. So, where there is the chance of more investment and substantially more employment for Australians if we are more flexible, that's what we want to look at. "

While business has complained the 457 visa scheme is too rigid, unions fear businesses seeking cheap overseas labour could rort the system. The main union representing construction workers has criticised the Government's planned changes, saying workers' rights would be undermined. The secretary of the Construction, Forestry, Mining and Energy Union, Michael O'Connor, says they would be bad news for overseas workers and unemployed Australians. "The changes will basically impact badly on 457 visa workers, and it will impact badly on those people in Australia looking for work. It will increase the chances of 457 visa workers being seriously injured or even killed on the job, because it's going to water down English requirements and that's going to compromise health and safety on especially the areas that we cover. And by allowing employers easy access to 457 visa workers, it's going to make sure that young people and people who are looking for work, long-term unemployed, aren't going to get a chance for a job when they should do."

But the national president of the Migration Institute of Australia does not share CFMEU concerns about the effects of poor English-language skills. Angela Chan says current English-language requirements are too strict and she also agrees with the Government that more flexibility is needed in other areas of the scheme.

"What's happened is that the program had bogged down in red tape and requirements that made it very difficult for employers to sponsor skilled workers from overseas. People often don't need to have a high level of English to perform their trades. For example, a cook ... I would rather have a cook that could cook a beautiful and safe and hygienic and first-class sushi, or any other type of food that requires a high level of skill, then (for that cook) to be able to read the sports pages of the local newspaper."

The Opposition says Mr Abbott's announcement on the visas is unclear and it is concerned the changes could have occupational health-and-safety implications.

The Government says it will soon make further announcements on the recommendations of reviews into both the 457 and the Significant Investor Visa programs.

SOURCE: SBS

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2014-15 Budget Overview: Australia's Migration Programme; Migration programme size

2014-15 Migration programme size

The 2014-15 Migration Programme remains the same at 190,000 places and maintains the composition of:

-128,550 Skilled Stream places

-60,885 Family Stream place, and 

-565 Special Eligibility Stream places.

Nevett Ford will provide more details of the Budget measures as they emerge.

For any queries related to Australian immigration, please contact our specialist immigration team. 

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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.

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Upcoming changes to the 457 Visa Program

On 23 February 2013, the Minister for Immigration and Citizenship announced a number of reforms to the subclass 457 program. The Department of Immigration & Citizenship state that the reforms are aimed at strengthening the capacity to identify and prevent employer practices that are not in keeping with the criteria of the subclass 457 program. The measures being brought forward include:

• the introduction of a ‘genuineness’ criterion under which the department may refuse a nomination if they determine that the position does not fit within the scope of the activities of the business
• an increase in market salary exemption threshold from $180 000 to $250 000
• the removal of English language exemptions for certain positions. Many long-term 457 workers go on to apply for permanent residence, and this change is being introduced so that the 457 program requirements are brought into line with the permanent Employer Sponsored program which requires a vocational English ability. Applicants who are nominated with a salary greater than $92,000 will continue to be exempted from the English language requirement
• enhanced regulatory powers for the department to ensure that the working conditions of sponsored visa holders meet Australian standards
• amendments to existing training benchmark provisions to clarify that an employer’s obligation to train Australians is ongoing and binding for the duration of their approved sponsorship, including for newly established businesses
• amendments to clarify that 457 workers may not be on-hired to an unrelated entity unless they are sponsored under a labour agreement
• amendments which will allow the department to refund a visa application fee in circumstances where an employer nomination has been withdrawn.

What is the intent of these measures?

The Department of Immigration and Citizenship has stated that capacity to detect and respond to the integrity concerns is limited by current legislation. The new measures are being introduced to strengthen the integrity framework. The department claims that the measures will also close loopholes in the current legislative and policy settings to ensure that the program can only be used by appropriately skilled persons and to fill genuine skills shortages.
The reforms are also designed to strengthen the sponsorship obligations to ensure that the working conditions of sponsored visa holders meet Australian standards.

When will the changes happen?

The comprehensive suite of measures will be introduced on 1 July 2013. In the lead up to the changes, detailed information will be made available to assist sponsors and visa holders and their representatives understand the new requirements.  We will provide further updates as information becomes available.

How will the changes affect Australian businesses?

The department claims that the changes will not adversely affect the vast majority of employers who are using the program appropriately. The changes will, however, strengthen the government's capacity to identify and prevent employer practices that are not in keeping with the purpose of the 457 program.

How will the changes affect current 457 visa holders?

There should be no adverse effects on existing visa holders. The 457 visa is a temporary visa, intended for filling short to medium term skill shortages, in a quick, flexible way to meet business needs. The Worker Protection reforms which took effect in September 2009 introduced a range of sponsorship obligations to ensure the working conditions of sponsored visa holders meet Australian standards.

How will the changes affect future 457 visa applicants?

The vast majority of 457 visa applicants who are genuine will not be affected by the changes. In some circumstances applicants whose applications are processed after 1 July 2013 may be required to provide further evidence to demonstrate their claims for a 457 visa.

What affect will the changes have on addressing real skills shortage problems?

Where employers can demonstrate a genuine need for skilled workers from overseas, they will still be able to sponsor people to fill skills gaps. Employers who make genuine attempts to open job opportunities up to Australians, who pay appropriate market rates and who are committed to the ongoing training and up-skilling of Australians will still have access to the subclass 457 program to supplement their skilled workforce.

What is labour market testing and how has it been used in the past?

Traditional forms of labour market testing involves advertising the position prominently in national and local newspapers, trade magazines and/or on job seeker websites over a number of weeks to prove that no suitably qualified Australians could be found for the position.
In the past, by the time an employer approached the Government to sponsor a skilled worker from overseas, they had already tested the local labour market thoroughly. However, they were still forced to go through the prescribed process which usually involved extra costs and delays for the employer.

Why is the government not reintroducing Labour Market Testing?

The 457 program is an important part of how Australia meets a number of our international trade obligations. These obligations mean that the government cannot limit access to the economy of people who wish to do business with Australia. Part of doing business with Australia often involves sourcing skilled labour from other countries. The department claims that Australia will remain open for business people and service providers and the reforms to the 457 program will not adversely impact these obligations.  Only time will tell with the Federal election this year and the roll out of above changes from 1 July 2013.

If you wish to find out more please do not hesitate to contact us.

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