At a
National Press Club lunch on 10 September 2014, the Minister for Immigration and Border
Protection, the Hon Scott Morrison, discussed the Government’s response to the
just released report by the panel conducting the Independent Review into
Integrity in the Subclass 457 programme.
The
Minister praised the report for its “balanced and measured” 22 recommendations.
Minister Morrison did not
give any details of the implementation date for the recommendations, but said
that the Government will give a detailed response “in the weeks and months
ahead”.
We will
provide further details as soon as they become available.
Report
Recommendations
Recommendation
1 – Core solutions
1.1 That,
in lieu of the existing Ministerial Advisory Council on Skilled Migration, a
new
tripartite
ministerial advisory council, which is not necessarily prescribed in
legislation, be
established
to report to government on skilled migration issues.
1.2 That
the new ministerial advisory council be supported by a dedicated labour market
analysis
resource.
Recommendation
2 – Core solutions
2.
Acknowledging that, as the OECD has pointed out, employer-conducted labour
market
testing is not “fully reliable”, and in the Australian context has proven
ineffective,
that the
current legislative requirement for labour market testing be abolished.
Recommendation
3 - Core solutions
3.1 That
the Consolidated Sponsored Occupations List be retained as a list of
occupations
which are at Skill Level 3 and above, and that the Consolidated Sponsored
Occupations
List should be able to be amended by two means: first, the addition of skilled
occupations
which can be shown to exist in the community but which may not be on the
ANZSCO
list; and, second, the refinement of the Consolidated Sponsored Occupations
List in
cases
where there may be integrity or appropriateness concerns. Any occupations not
on
the list,
which are usually referred to as semi-skilled, may be addressed as part of the
Labour
Agreement regime.
3.2 That
the new ministerial advisory council provide advice on those occupations where
some
concern exists and recommend additional requirements or limitations on
occupations
and/or
regions.
Recommendation
4 - Market Salary Rate
4. That
the market rate framework continue to operate as a core component of the
457
programme, but that the earnings threshold above which there is an exemption
from
the need
to demonstrate the market rate should be aligned with the income level above
which the
top marginal tax rate is paid (currently at $180 000).
Recommendation
5 - Temporary Skilled Migration Income Threshold
5.1 While
there is an argument for abolishing the Temporary Skilled Migration Income
Threshold,
that it nevertheless be retained to allow for streamlining within the wider
programme,
and that concessions to the Temporary Skilled Migration Income Threshold be
afforded
under Labour Agreements, Enterprise Migration Agreements and Designated Area
Migration
Agreements, as appropriate.
5.2 That
the current Temporary Skilled Migration Income Threshold be retained at
$53 900
p.a. but that it not undergo any further increases until it is reviewed within
two years.
5.3 That
the two roles currently performed by the Temporary Skilled Migration Income
Threshold
(that is, acting as a determination of the eligibility of occupations for
access to the
scheme
and as an income floor) be more clearly articulated in the 457 programme, and
that
consideration
be given to accepting the eligibility threshold as up to 10 per cent lower than
the
Temporary Skilled Migration Income Threshold.
5.4 That
the government give further consideration to a regional concession to the
Temporary
Skilled Migration Income Threshold, but only in limited circumstances where
evidence
clearly supports such concession.
5.5 That
in circumstances where the base rate of pay is below the Temporary Skilled
Migration
Income Threshold, the current flexible approach adopted by the department,
taking
into account guaranteed annual earnings to arrive at a rate that meets the
minimum
requirement
of Temporary Skilled Migration Income Threshold be continued and made
more
visible to users of the programme and their professional advisors.
Recommendation
6 - Training benchmarks
6.1 That
the current training benchmarks be replaced by an annual training fund
contribution
based on each 457 visa holder sponsored, with the contributions scaled
according
to size of business.
6.2 That
any funding raised by way of a training contribution from sponsors of 457 visa
holders
be invested in:
a)
training and support initiatives, including job readiness, life skills, and
outreach
programmes
for disengaged groups, particularly youth who have fallen out of the
school
system;
b)
programmes allowing employers to take on apprentices/trainees from target
groups,
including
Indigenous Australians and those in rural and regional areas;
c)
mentoring programmes and training scholarships aimed at providing upskilling
opportunities
within the vocational training and higher education sectors that
address
critical skills gaps in the current Australian workforce. Target sectors
include
those
industries, such as nursing and the IT sector, that rely heavily on 457
workers;
and,
d)
training and support initiatives for sectors of critical national priority.
Target sectors
include
industries experiencing significant increase in labour demands, such as the
aged care
and disability care sectors.
6.3 That
funds raised through the training contribution be dedicated to this training
role
and that
the government reports annually on how these monies are spent by the
Department
of Industry.
6.4 That
there be a new sponsor obligation to ensure that the cost to the sponsor of the
training
contribution cannot be passed onto a 457 visa holder or third party.
Recommendation
7 - English language requirement
7.1 That
the English language requirement be amended to an average score.
For
example, in relation to International English Language Testing System, the 457
applicant
should
have an average of 5 across the four competencies (or the equivalent for an
alternative
English language testing provider).
7.2 That
greater flexibility be provided for industries or businesses to seek
concessions
to the
English language requirement for certain occupations on a case by case basis,
or
under a
Labour Agreement, Enterprise Migration Agreement or Designated Area Migration
Agreement,
as appropriate.
7.3 That
consideration be given to alternative English language test providers.
7.4 That
consideration be given to expanding the list of nationalities that are exempt
from the
need to demonstrate they meet the English language requirement.
7.5 That
instead of the current exemption which requires five years continuous study,
five
years cumulative study be accepted.
Recommendation
8 - Genuine position requirement
8.1 That
there be targeted training for decision-makers in relation to the assessment of
the
genuine position requirement.
8.2 That
before decision-makers refuse a nomination on the basis of the genuine
position
requirement, the sponsor be invited to provide further information to the
decision-maker.
Recommendation
9 - Skills assessments
9. That
the government should explore how skills assessments could more
appropriately
recognise a visa applicant's experience.
Recommendation
10 - Sponsorship
10.1 That
Standard Business Sponsors should be approved for five years and start-up
business
sponsors for 18 months.
10.2 That
as part of the government’s deregulation agenda, the department should
develop a
simplified process for sponsor renewal.
10.3 That
the department consider combining as many sponsorship classes as possible.
10.4 That
when more detailed information is available, the department should investigate
the
alignment of overseas business and Labour Agreement sponsorship periods with
the
general
Standard Business Sponsorship approval period.
10.5 That
the timeframe for the sponsor to notify the department of notifiable events as
set out
in legislation should be extended to 28 days after the event has occurred.
10.6 That
the department should explore options that would enable the enforcement of
the
attestation relating to non-discriminatory employment practices.
10.7 That
it be made unlawful for a sponsor to be paid by visa applicants for a migration
outcome,
and that this be reinforced by a robust penalty and conviction framework.
Recommendation
11 - Fees
11. That
the government should review the fee structure, especially for secondary visa
applicants
and visa renewal applications.
Recommendation
12 - Information provision
12.1 That
sponsors be required to include as part of the signed employment contract:
a) a
summary of visa holder rights prepared by the department; and,
b) the
Fair Work Ombudsman’s Fair Work Information Statement.
12.2 That
improvements be made to both the accessibility and content on the
department’s
website specific to 457 visa holder rights and obligations, and utilising the
department’s
significant online presence more effectively to educate 457 visa holders on
their rights
in Australia.
Recommendation
13 A streamlined approach
13.1 That
consideration be given to creating streamlined processing within the existing
457
programme as a deregulatory measure. To maintain programme integrity,
streamlining
should be
built around risk factors including business size, occupation, salary and
sponsor
behaviour.
13.2 That
should the recommended nomination and visa streamlining outlined in this
report be
implemented, the department should investigate a redefined accredited sponsor
system.
Current accredited sponsors should retain their priority processing benefits
until
their
sponsorship ceases; however, no further sponsors should be afforded accredited
status
until a new system is implemented.
Recommendation
14 - Labour Agreements
14.1 That
Labour Agreement negotiation times be significantly improved to enable a
demand-driven
and responsive pathway for temporary migration, where the standard
457
programme arrangements are not suitable.
14.2 That
to enable the Labour Agreement pathway to be more open and accessible for
additional
industry sectors, consideration be given to the development of other template
agreements
that will address temporary local labour shortages in industries of need.
Recommendation
15 - Pathways to permanent residence
15.1 That
457 visa holders be required to work for at least two years in Australia before
transitioning
to the Employer Nomination Scheme or Regional Sponsored Migration
Scheme,
and that consideration be given to the amount of time required with a nominating
employer
being at least one year.
15.2 That
consideration be given to reviewing the age restriction on those 457 visa
holders
transitioning to the Employer Nomination Scheme or Regional Sponsored Migration
Scheme.
15.3 That
consideration be given to facilitating access for partners of primary sponsored
457 visa
holders to secure permanent residence under the Temporary Residence Transition
stream.
Recommendation
16 - Role of education
16. That
consideration be given to the allocation of more resources to programmes
aimed at
helping sponsors understand and comply with their obligations, whether those
programmes
are delivered directly to sponsors or through the migration advice profession.
Recommendation
17 - Monitoring
17. That
greater priority be given to monitoring, and that the department continue to
enhance
its compliance model to ensure those resources are applied efficiently and
effectively.
Recommendation
18 - Inter-agency cooperation
18.1 That
there be greater collaboration between the department and the Australian
Taxation
Office to uphold integrity within the 457 programme and minimise the burden on
employers.
18.2 That
a change to 457 visa conditions be introduced to place an obligation on the
visa
holder to
provide the department with their Australian tax file number.
Recommendation
19 - Fair Work Ombudsman
19.1 That
the Fair Work Ombudsman’s current complementary role in monitoring
compliance
and referral of findings to the department for action should continue.
19.2 That
the department should provide information in real time that is both current and
in a
format compatible with that of the Fair Work Ombudsman..
Recommendation
20 - Fair Work Commission
20.1 That
the department monitor decisions of the Fair Work Commission, so as to
determine
if sponsors have breached obligations or provided false and misleading
information
20.2 That
the department require sponsors, when lodging a new nomination application
to
certify that there has been no change to the information provided to the
department in
relation
to whether the business or an associated entity has been subject to
"adverse
information"
as that term is defined in the legislation.
Recommendation
21 - Sanctions
21.1 That
dedicated resourcing be made available to the department to enable the
investigation
and prosecution of civil penalty applications and court orders.
21.2 That
the department disclose greater information on its sanction actions and
communicate
this directly to all sponsors and the migration advice profession as well as
placing
information on the website.
Recommendation
22 - Systems enhancements
22. That
the department investigate the feasibility of system improvements that
facilitate
greater linkages with information held by other government agencies.
