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 are subject to monitoring by the Department of Immigration and Border Protection.

 

From 1 June 2013, employers engaging or contracting legal workers face significant civil penalties up to $76,500 if it can be established that the employer:

 

• has allowed the person to work or does not have a visa,
• has allowed a person to work without a proper work condition,
• has referred a person to work who falls under the above categories, or, has participated in an arrangement where an illegal worker is allowed to work.
   

Employers who are investigated in respect of any of the above breaches must be able to prove that reasonable steps have been taken to verify that an employee or contractor had appropriate permission to work.

 

Two of the most common ways for foreign workers to be employed in a business are first, via the 457 program or second, as students who hold work rights.

 

Available statistics indicate that as at the end of June 2012 the number of businesses employing 457 Visa holders exceeded 22,000. This represented in excess of 160,000 primary and secondary visa holders, all with work rights.

 

Businesses which employ 457 Visa holders are approved by the Department of Immigration as sponsors, and part of the sponsorship process involves the sponsor agreeing to assume a number of obligations which may be subject to monitoring by the Department. Included in these obligations is an undertaking to ensure that the employed worker is to be remunerated appropriately for the role.

 

It is not necessary to have a sponsorship in place in order to employ students, and therefore no formal monitoring is involved. Nevertheless, businesses employing students are obliged to comply with the law and must verify that the students have proper work permissions. Normally students are permitted to work up to 20 hours a week while courses are in session and full-time during vacation periods.

 

Nevett Ford lawyers are specialised in all areas of migration and can advise you on your obligations in relation to employment of foreign workers, as well as providing migration advice to those wishing to apply for an Australian visa.

 

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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 189 program. We also expect that those at 65 points who have already lodged an EOI will likely get an invite before Jun 2016.

 

Therefore, any new Expressions of Interest (EOI) lodged from now on at 65 points may struggle to be allocated a place in the 2015/2016 program year.

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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 permitted to work in Western Australia, a positive skills assessment and State nomination does not guarantee you will meet the licensing or registration requirements of the relevant licensing or registration authority.  Those considering applying for Western Australian nomination are advised to check with the appropriate licensing or registration authority to verify their suitability for licensing or registration.

 

Occupations may have the following status.

Available = occupation is available for nomination
Restricted = occupation is under review and invitations will not be issued pending the outcome of the review
Closed = occupation is closed for invitations

 

Occupations are categorised as schedule 1 or schedule 2.

 

The occupations identified on WASMOL do not relate to any specific job vacancies, nor represent any guarantee of a job, but rather identify occupations that are considered a priority for the State. It is recommended that you research employment opportunities in Western Australia (in your occupation) before making the decision to migrate.

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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 same location.

Occupations accessible under the DAMA:

http://www.australiasnorthernterritory.com.au/Working/bsm/employer-nominated/dama/Pages/accessible-occupations.aspx

 

 

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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 Bill also promotes fairer contracts between franchisers and its franchisees.  The harsh terms of some franchisee contracts, which leave little profit for franchisees, have been reported as a major reason for franchisees attempt to cut costs by reducing wages rates.

The Bill has been read for the second time.  

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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 leaders and members of the state government and the opposition so that he can outline his plans for the introduction of legislation to federal parliament so that the migration program can be revised and be able to attract skilled foreign workers so that labour shortage can be met growth can finally be encouraged.


”We need to do this,” the Senator urged. ”We need to do it really urgently.”


”If we can boost business migrants in the thousands, if we can have billions of dollars coming into the state … I reckon that would be unambiguously good for South Australia,” he further went on to say, proving his point.


According to Senator Xenophon, Senator Jackie Lambie, the independent senator from Tasmania, is going to co-sponsor the bill.


”It is about Tasmania as well,” Senator Xenophon said. ”Tasmania and South Australia are lagging behind all other states with population growth.”


Source: SkyNews.com.au

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Graduate Temporary Subclass 485 Visas

The Temporary Graduate subclass 485 visa is work visa for international students who have completed 2 years of study in Australia. It can last from between 18 months and 4 years depending on your situation.

It is a good way to extend your stay in Australia to improve your chances of becoming eligible for a permanent or provisional skilled visa.

Eligibility Streams

There are two eligibility streams for the Temporary Graduate Subclass 485 Visa:

• Post Study Work Stream: commonly referred to as the Post Study Work Visa (PSWV). This eligibility stream was introduced in March 2013 for students applying for their first student visa after 5 November 2011
   
• The Graduate Work Stream: criteria are similar to the 485 Graduate Skilled visa as it was prior to March 2013
  Common Criteria
  There are a number of criteria which are common to both the PSWV (Post Study Work) stream and the Graduate Work Stream:
   
  Age - The main applicant must be under 50 at the date of lodgement.
   
  English - The main applicant must demonstrate their English language ability, either through holding certain types of passport or by undertaking an English test. Evidence of threshold English must be provided at date of lodgement 
   
  Study in Australia - You must meet the 2 year study requirement and have completed qualifications within six months of applying for the visa.

Including Family Members

• You can include the following types of family members in your application:
• Spouses, de facto partners and same-sex partners
• Dependent children.

If you already hold a 485 visa, you can apply for family members to join you in Australia on 485 visas.

Duration and Conditions

Duration of the 485 visa will depend on your circumstances.

Graduate Work stream visas are valid for 18 months from the date of grant of the application.

Duration of the Post Study Work Visa depends on which qualification has been completed in Australia as follows:

• 2 years: completion of Bachelor Degree, Bachelor with Honours, Masters by Coursework or Masters (Extended)
• 3 years: Masters by Research
• 4 years: Doctorate

Whilst on a 485 visa, you have unrestricted work rights in Australia.

You must maintain private health insurance whilst on a skilled graduate visa.

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