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Visa considerations for prospective Franchisees

Australian Franchisors may be missing out on attracting offshore Franchisees due to trepidation around the necessary visa requirements.

In short, the ‘self-sponsorship’ option under the Temporary Skill Shortage (TSS) programme is essentially closed to all but STEM based enterprises.

Usually, this leaves only two purpose built visa options:

  1. Using the Master Franchisor’s business sponsorship ‘license’ to facilitate the visa arrangements of the investing Franchisee; or,
  2. Using the Business and Investor (‘BIIP’) visa programme, and most readily, the Subclass 188 visa in the Innovation stream.

The problem with using a Master sponsorship license is that the Franchisor is liable for all of the immigration compliance risk throughout the network. Without ultimate visibility and control, this is an untenable risk with little benefit for either party, and it may not even facilitate a clear pathway to Australian permanent residence for the Franchisee.

On the other hand, the BIIP programme is a notoriously difficult visa category that very few migration professionals can handle.

With 13 years of Business and Investor visa experience, we have increasingly wondered how many Franchise opportunities go to waste because of patchy advice, and a poor understanding of how to make the BIIP work. Of course, it may not work 100% of the time, but our specialist team of business-savvy immigration professionals can provide an advisory service to screen your candidate’s eligibility for a Subclass 188 visa. This frees you up to confidently close the Franchise opportunity.

Further information is available from 188@fcbsmartvisa.com.au or speak with our Head of Migration on +612 9922 5188

The Lowdown on Employer Sponsored Visa Reform

Many will be aware that the 457 visa programme is now closed to new applications after being formally ‘abolished’ on Sunday 18 March 2018.

 

It has been replaced by the Subclass 482 Temporary Skilled Shortage visa programme (TSS), which – by and large – is a rebranded and remodelled version of its predecessor.  In companion legislation, consequential changes to the employer-sponsored Permanent Residence framework have also come into effect.

 

The changes have taken effect incrementally since the surprise announcements on 18 April last year, and almost all most of the reform agenda (save for implementation of the ‘Skilling Australia Fund levy’) is in effect at the time of writing.

 

Temporary Work Visa Changes At-a-Glance

 

  1. TSS visa validity periods are determined by the occupation, and the length of time the sponsor wishes to employ them.
  2. Occupations included on the Short-term Skilled Occupation List (STSOL) allow a maximum stay of two years (with only one onshore renewal) – subject to any shorter period requested by the nominator
  3. Occupations included on the Medium and Long Term Skills Shortage List (MLTSSL) allow a stay of up to four years, with a pathway to permanent residence after three years, but this is also subject to any shorter period requested by the nominator. Occupations on the “Regional Occupation List” (ROL) are treated the same as an MLTSSL occupation, but are only available in gazetted regional areas.
  4. Subject to the introduction of the Skilling Australia Fund levy (SAF), sponsors will need to contribute an upfront payment of between $1,200 and $1,800 for each year they wish to sponsor a visa holder (the difference being dependent on whether the business has less or more than $10 million turnover respectively). For MLTSSL occupations, this will add $7,200 to the cost of a 4 year visa, a cost which is non-transferable by the sponsor. The levy is not refundable if the visa application is refused (unless on a health or character basis), and nor is the levy refundable in the event that the sponsored person moves to another employer (which around 20% of 457 visa holders typically do). The levy is also payable in the hands of the inbound sponsor as part of a transfer.
  5. Visa Application charges will increase as follows:
TSS Visa Application Charges Primary Applicant Adult Secondary Child Secondary
STSOL $1,150 $1,150 $290
MLTSSL and ROL $2,400 $2,400 $600

 

  1. Labour Market Testing is now mandatory in all cases unless an international treaty obligation applies (e.g. the China, Korea, Free Trade Agreements, or between WTO signatories amongst others). LMT is highly prescriptive and requires a sponsor to:

Publish at least two English language advertisements for 21 consecutive days, in an Australian national paper or radio, which includes the title (or a description of the position), the name of the sponsor or recruitment agency being used by the sponsor, and the annual earnings for the position.

  1. The primary visa applicant must have at least two years of full time work equivalent work experience relevant to the nominated occupation. This will rule out most graduates and many working holiday makers.
  2. Nominated positions must now be full-time.
  3. A new visa condition (Condition 8607) will mean that a primary 482 visa holder who changes their occupation (whether with a new employer or the same employer), will need to apply for a new 482 visa before they can commence in the new role. A new nomination (and presumably SAF levy) will also apply in this situation.
  4. A comprehensive ‘Genuine Intention to take up a Genuine Role’ test will apply at visa stage, as will a separate “Genuine Temporary Entrant’ requirement for STSOL occupations
  5. Greater focus on compliance with Australia’s workplace law framework

 

The above rules are in addition to a tightening of English requirements, assessment of skills, as well as an assessment of the sponsor’s previous conduct, which are among other changes that have made the process far more onerous than any iteration of the temporary work visa programme before it.

 

Employer Sponsored Visa Changes: At-a-glance

 

The introduction of the new TSS visa framework has implications for the Employer Nomination Scheme (ENS) and Regional Sponsored Migration Scheme (RSMS). In short, the changes are as follows:

 

  1. Those who held a subclass 457 visa on 18 April 2017 will have their pathway to employer sponsored migration preserved under the old ENS and RSMS rules (until March 2022).
  2. All other applicants will be subject to the new requirements that apply including:
  • Age limit of 45 unless exempted by occupation, or paid higher than the Fair Work High Income Threshold for at least three years whilst holding a subclass 457/482 visa
  • Nominated occupation must be on the gazetted (MLTSSL) list at the time of application
  • A three year qualifying period on a 457/482 visa is now required before transitioning to permanent residence (up from two years)
  • The requirement for the market salary rate to be above the Temporary Skilled Migration Income Threshold of the day (currently $53,900)

 

It remains to be seen how employers will react to these new barriers in accessing foreign skills, particularly in the context of historically low unemployment and recognised skills shortages in the Australian labour market. The increased costs alone will have the (presumably desired) effect of cutting out all but medium to large enterprises from participating in the TSS programme.

 

Any business considering using the TSS programme is advised to understand exactly what the new risks entail, and to manage those risks using migration professionals with an understanding of the attendant employment law considerations.

The False Economy of Contemporary Skilled Visa Reform

skilled visa reform

This article explores the shift away from demand-driven economic migration policy, and the likely consequences of the coalition’s blueprint for skilled migration from 2018.

To say it has been a tumultuous year in the immigration space is no exaggeration.  Immigration Secretary Michael Pezzulo, Minster Peter Dutton, and Assistant Minister, Alex Hawke have superintended one of the biggest disruptions to the employer-sponsored visa framework since its inception.

Background

For years, the employer sponsored visa framework was the darling of a demand-driven system of skilled migration, facilitating Australia’s mining boom, and supplementing skilled shortages in key sectors of the Australian economy.  However, the 457 visa programme (and the gateway it provides to employer nominated permanent residence), has been the political plaything of successive governments keen to get tough on perceived visa rorts, and the impact on Australian jobseekers.  Whilst there have been well reported instances of visa fraud and exploitation, these are more politically significant than statistically so.

Reform Agenda

The headlines to most recent round of reforms have been broadly publicised since the joint-Prime / Ministerial announcements on 18 April 2017.   In broad brushstrokes, the changes involve:

  1. Rebadging the 457 visa programme to the Temporary Skill Shortage, or ‘TSS’ programme
  2. Removal of 216 occupations from the list of ‘sponsorable’ occupations for subclass 457 visa purposes
  3. Creation of 2-year and 4-year visa based on the occupational classification (with only the 4-year visa supporting a transition to employer sponsored permanent residence)
  4. Introduction of a caveat system which add additional criteria to a range of otherwise sponsorable occupations
  5. Implementation of universal labour market testing (unless inconsistent with international treaty obligations)
  6. Imposition of higher fees and training levies on sponsors
  7. Ratcheting up of skill, English and work experience criteria for applicants

The net effect of this staggered rollout has been significant, and some commentators have predicted the number of employer sponsored permanent residence grants will drop by two thirds of the current levels following the final phase of the reform package slated for early March 2018.

The changes appear to have been popular with voters (and the senate), and it is telling that the changes were not predicated on any consultation process with employer or industry groups.

Unintended Consequences

The creation of what is effectively a 2-year ‘guest worker’ visa was clearly designed to cool the numbers of visa grants based on those occupations.  However, the reality has been that numbers have been reduced to a trickle and businesses are finding it extremely difficult to attract anybody via the 457 visa programme because there is little or no prospect of a long term career for the foreign worker.

The irony is that by recognising that there is a short-term skill shortage in these occupations, the Commonwealth Government has effectively removed any incentive and blocked supply altogether.

Current unemployment sits at 5.4% (roughly half of its peak in 1992 and a third higher than its all-time low before the GFC in 2008).  Throughout the writer’s 13 years of practice in this area, use of the 457 visa programme has tracked reliably against to the unemployment rate of the day, (usually taking off at the 5% threshold).  This is a strong indicator that the programme, by and large, was a well calibrated supplement to skill shortages in Australia.  It is therefore difficult to reconcile the reform agenda with the sound economic policy underpinning the demand driven model made famous by the then DIAC Chief Economist, Mark Cully.

Case Study

In recent months, Atlassian has been a very vocal proponent of the 457 visa programme in print and television media. In a recent article in the Murdoch press, Atlassian co-chief executive Scott Farquhar hit out at the federal government’s cutback on skilled worker visas, saying the move will cost Australians jobs and signal to the world that the country is “closed for business”.

Atlassian famously employs around 1000 people in Australia with a relatively high proportion of them (variously 20-25%) holding subclass 457 visas.  The point of frustration for the Atlassian’s in Australia is that without these imported skills-sets in emerging industries, they – like many new-tech businesses –  cannot justify operating in Australia whilst waiting for our STEM initiatives to deliver the necessary skills.

Mr Farquhar goes on to state “The idea that if I bring in 100 people from overseas I will be taking away 100 jobs in Australia is not right”. “It will actually be creating jobs which would otherwise have gone to China or India or the US”.

It is not just STEM based roles that are affected. In the first round of changes to the 457 visa programme, the role of Recruitment Consultant was relegated to the 2-year 457 visa list, with additional criteria, and no prospects of employer nominated permanent residence. Fast forward 6 months and it is slated for removal from the 457 visa programme altogether. This is despite the fact that according to analysis conducted by job search portal ‘Indeed’,  Recruitment Consultant is among the top 20 most difficult vacancies to fill Australia-wide.

Tax Revenue

And there is already evidence of these roles being offshored. In the retail sector, retail buying, m-commerce and merchandising functions are now being been sent to overseas hubs, because it is extremely difficult to fill these roles locally, or attract overseas candidates without a long term opportunity.

At a minimum, this represents a loss to the revenue in terms of income tax, and other contribution to the economy of a tax paying expatriate employee, (which may also include premiums on student school fees, health insurance, and partial forfeiture of superannuation contributions). This is of course in addition to the many other economic, social, and cultural contributions made by temporary and permanent migrants to Australia.

Education Sector

Without a pathway to PR for bright graduates of the Australian tertiary sector, our education export earnings (a record $21.8 billion in 2016) are at appreciable risk.  It is certainly important to ensure that the quality of Australian higher education can stand alone without the promise of automatic permanent residence, and for the most part it does.  This is partly because international competition for foreign students is itself a key driver of innovation, excellence, and integrity in the tertiary sector. But it does no harm to Australia to re-circulate these skills within the domestic labour market (within existing net migration programming parameters). However, for most talented graduates, this will no longer be an option under the 457 visa programme.

Training Levy

From March 2018, a Skilling Australians Fund (SAF) levy will be imposed on sponsors when nominating a person for either a TSS visa or for an employer-nominated permanent residence visa. This levy ranges from $1,200 p.a. for the TSS visa, to a one off payment of $5,000 for a permanent visa applicant, and is designed to replace the ‘training benchmarks’ that currently exist in the 4557 visa programme.

This will relieve many sponsors from having to invest between one and two percent of payroll in training Australian employees or through industry training funds, Putting aside some unresolved issues relating to ‘double dipping’, it is understood that many business already meeting the benchmark/s consider this a tax on them for already doing the right thing.  With a finite training budget, the theory is that many businesses will need to carve out existing training budgets to pay the training fund levy.

Conclusion

It is difficult to see how throttling access to the international labour market is consistent with Australia’s interest in being competitive on the global stage.  The Department of Immigration and Border Protection is single-mindedly focussed on its border protection remit (the dominant culture since the merger in 2015), at the expense of an effective economic migration programme that has supported the Australian economy remarkably well for over 20 years.

If any of the probable consequences outlined above come as a surprise to the Government, then it is incumbent on our immigration leaders to pay more attention to economists, employers, industry, and Australian workers, in favour of making populist lurches for short term political advantage.

For inquiries, please contact Alex Kaufman, Head of Migration at FCB Smart Visa at +612 9922 5188 or ajk@fcbsmartvisa.com.au

Recruiting Agencies Unite!

The Department of Employment is responsible for undertaking a regular review of the Short-term Skilled Occupation List (STSOL) and Medium and Long-term Strategic Skills List (MLTSSL). These occupation lists are used for employer-sponsored and skilled migration to meet short and medium/long term needs for the Australian economy.

The Department of Employment has today released a draft ‘traffic light bulletin’ that slates occupations for removal, retention, and/or cross-grades between the STSOL and MLTSSL.

What should be of major concern to recruitment agencies throughout the country is the real possibility that Recruitment Consultant (ANZSCO 223112) is removed altogether from the list of ‘sponsorable’ occupations for 457 / TSS visa purposes from January 2018. The other three occupations in the firing line are:

  • Accommodation and Hospitality Managers
  • Hair or Beauty Salon Manager
  • Building Associate

If stakeholders are concerned about the adverse consequences of removing these occupations from the 457 visa programme, they can contact us on 02 9922 5188 or register their submissions directly with the Department of Employment no later than 1 December 2017 using this portal.

ALERT: Transitional Arrangements Announced for Employer-Nominated Visas

Following DIBP commentary at the Migration Institute of Australia’s national conference in Melbourne last week, the DIBP has now officially shed some further light on the transitional arrangements that will apply to many people seeking employer-nominated permanent residence after the March 2018 round of legislative changes.

 
Specifically, the DIBP has now confirmed that people who held, or had applied for, a subclass 457 visa on 18 April 2017 will be able to access certain existing provisions under the Temporary Residence Transition stream, specifically:

 
1. Occupation requirements remain the same (i.e. there is no specific ‘list’ or other restrictions on the nominated occupation as long as the nominee continues to work in the same position for the same employer as approved for their subclass 457 visa).

 
2. Despite the introduction of a universal age ceiling of 45 from next March, the upper age limit for those using the transitional arrangements will remain at 50.

 
3. There will be no additional work experience requirement imposed for this cohort, and the current requirement to have worked at least two out of the three years prior to nomination on a subclass 457 will remain in place.

 
The welcome announcement gives some clarity to those who stood to be adversely affected from a wholesale change in the eligibility requirements. However, the limited information does not address a number of key scenarios, such as:

 
– Whether applying for a 457 visa renewal (or subsequent TSS application) after April 18 will affect the grandfathering arrangements.
– Whether transferring to a new employer by way of a nomination lodged after 18 April 2017 will affect the grandfathering arrangements.
– Whether refused 457 applications that were overturned on appeal after 18 April will be able benefit from the grandfathering provisions.

 
It is also conceivable that pipeline 457 applications (lodged before 18 April but still undecided), could be affected if the nominated occupation is removed from the next list of ‘sponsorable’ occupations (slated for January 2018) before the nomination is finalised. This issue arises from the combined effect of changing lists, blowouts in DIBP processing times, and the fact that the nomination criteria requires the occupation to be on the gazetted list at the time of nomination decision (not at the time lodgement).

 
There are a number of other possible scenarios that have not been addressed as yet, and we expect to be able to provide further clarity in the days and weeks ahead.

 

 

For inquiries, please contact Alex Kaufman, Head of Migration at FCB Smart Visa at +612 9922 5188 or ajk@fcbsmartvisa.com.au

ALERT: What you need to know about the abolition of the 457 Visa Program

 

 

Following the Prime Minister’s highly publicised announcement today regarding the impending abolition of the 457 visa program, information has emerged of interim plans to replace the Skilled Occupation List (SOL) and Consolidated Skilled Occupation List (CSOL) effective 19 April, 2017.

According to the interdepartmental circular and the recently updated DIBP website, the Consolidated Sponsored Occupation List (CSOL) will be replaced by the Short Term Skilled Occupation List (STSOL). This will involve the removal of 200 occupations from the CSOL (listed below).

As well as narrowing the 457 occupation list, the abridging of the CSOL also affects the following subclasses:

  • Employer Nomination Scheme (subclass 186 Direct Entry)
  • Skilled Nominated (subclass 190)
  • State and Territory Nominated stream of the subclass 489 and some applicants for the Training visa (subclass 407)

In addition, 24 occupations listed on the STSOL will now only be eligible for positions located in regional Australia (for the subclass 457 and the subclass 186) and for the State and Territory Nominated stream of the subclass 489.  These regional occupations are also listed below.

Nominations in the removed occupations will not be processed from Wednesday 19 April 2017.

For a list of all occupations removed, click here.

Importantly, many other commonly used occupations in the program (e.g. Recruitment Consultant and Sales and Marketing Manager) have also had ‘caveats’ applied to them, which have created additional requirements, and in effect raised the bar to a higher level than many of the standard criteria for approval. Further details of these will be provided in subsequent news releases.

In addition, the Skilled Occupation List (SOL) is being replaced by the Medium and Long term Strategic Skills List (MLTSSL).  Occupations currently listed on the SOL will remain available for visas that use the SOL at the sole occupation list (the Skilled Independent (subclass 189), the Graduate Work stream of the Temporary Graduate (subclass 485) and the Eligible Relative Nominated stream of the Skilled Regional (Provisional) (subclass 489).  For all other visas that use occupation lists, there will be 16 occupations removed from the MLTSSL which is published here.

FCB Smart Visa will continue to provide updates on the 457 program as they become available. If you would like to discuss, please call one of our migration agents on 02 9922 5188.

457 News – Store Managers

We often get questions from clients around whether they can sponsor their retail store managers for a subclass 457 visa.  Under current policy, the short answer is that it is not appropriate to use the 457 programme to sponsor a Retail Manager, as it is not included in the Consolidated Sponsored Occupation List (CSOL). Current policy also dictates that sponsoring store managers using other occupations, such as Customer Service Manager (which is on the CSOL), is not appropriate.

However, the position has been qualified somewhat by the Department of Immigration and Border Protection (DIBP).

In a newly released circular relating to sponsoring management positions in the retail sector (particularly in relation to Store Manager positions) the DIBP has advised that they may be flexible with their assessment where the company:

  • Is setting up a number of stores in Australia for the first time; and,
  • Wishes to employ an experienced manager from overseas to manage and lead the new stores in Australia.

However, management of a ‘flagship’ store could conceivably take the role beyond that of a typical Store Manager, and into the realm of Specialist Managers (not elsewhere classified). In most cases applicants for this occupation require a positive skills assessment from VETASSESS, which is often difficult to obtain as it requires a formal qualification.  

Importantly, there are also limited exceptions to the skill assessment requirement and it is important to get a qualified assessment as to whether your business can access the flexibilities provided for in the current policy framework.

FCB Smart Visa will continue to provide updates on the 457 programme as they become available. If you would like to discuss, please call one of our migration agents on 02 9922 5188.

Changes to the temporary activity visa framework

The Department of Immigration and Border Protection (DIBP) has introduced a new temporary activity visa framework, which will come into effect on 19 November 2016. This change is designed to streamline the application process for individuals and businesses.

From 19 November, the following Subclasses will be closed for new applications:

  • Subclass 401 Temporary Work (Long Stay Activity) visa
  • Subclass 402 Training and Research visa
  • Subclass 416 Special Program visa
  • Subclass 420 Temporary Work (Entertainment) visa
  • Subclass 488 Superyacht Crew visa

These will be replaced by or amalgamated into:

  • Subclass 400 Temporary Work (Short Stay Specialist) visa

This visa would be for people who want to come to Australia on a temporary basis to:

  • undertake short-term, highly specialised, non-ongoing work
  • in limited circumstances, participate in an activity or work relating to Australia’s interests
  • Subclass 403 Temporary Work (International Relations) visa

This visa would be for people who want to come to Australia on a temporary basis:

  • in relation to a bilateral agreement
  • to represent a foreign government or to teach a foreign language in an Australian school
  • to undertake full-time domestic work for a diplomat
  • as a person with statutory privileges and immunities
  • to participate in the Seasonal Worker Programme
  • Subclass 407 Training visa

This visa would be for people who want to come to Australia on a temporary basis to undertake occupational training or participate in classroom based professional development activities.

  • Subclass 408 Temporary Activity visa

This visa would be for people who want to come to Australia on a temporary basis to:

  • work in the entertainment industry
  • participate in a non-ongoing cultural or social activities at the invitation of an Australian organisation
  • observe or participate as an academic in a research project
  • undertake full-time religious work
  • participate in a special programme to enhance international relations and cultural exchange
  • participate in high-level sports (including training)
  • work in a skilled position under a staff exchange arrangement
  • participate in an Australian government endorsed event
  • work as a superyacht crew member
  • undertake full-time domestic work in the household of certain senior foreign executives

The chart below, produced by the DIPB, shows the changes:

picture2

Points to note regarding these changes:

  • The majority of applications will be lodged online, with the exception of the Subclass 403 International Relations Visa, which will remain a paper-based application
  • The new 407 Training Visa will require a Nomination and Sponsorship, regardless of intended stay period. No Nomination is required if the Sponsor is a Commonwealth agency
  • One Sponsorship type will replace the existing six Sponsorship types, and this will be valid for a period of five years. Currently valid Sponsorships can only be used to sponsor new Visa applications until 19 May 2017
  • If applying for a Subclass 408 Temporary Activity Visa, the Visa applicant will not require a Nomination, and the following will also apply:
    • You will not need to be sponsored if applying outside Australia, and your intended stay period will be 3 months or less. If the intended stay period is beyond 3 months, a Sponsorship will be required
    • A Sponsorship will still be required if you apply from within Australia, regardless of the intended stay period

FCB Smart Visa will continue to provide updates on changes to the temporary activity visa framework when they become available.

If you have any migration matters that you would like to discuss, please call one of our migration agents on 02 9922 5188.

Nats Back the Backtrack on Backpacker Tax

27 September 2016: The Federal treasurer today announced the government would scrap the proposed 32.5% flat tax rate on income earned by foreign working-holidaymakers in Australia.

The new measures follow a deal negotiated through Nationals leader, Barnaby Joyce, and has been overwhelmingly welcomed by regional stakeholders who rely heavily on itinerant and seasonal workers under the Working Holiday Visa (WHV) program.

The Federal government offered further incentive by: funding a $10 million advertising campaign targeting overseas workers, reducing the visa application charge by $50 (to $390), and allowing WHV holders to work for up to 12 months with the same employer in certain circumstances.

Scott Morrison indicated that the negotiated deal would be funded by changes to the Departing Australia Superannuation Payment (DASP) scheme, and a wholesale increase to Departure tax under the Passenger Movement Charge Collection Act 1978.

A comprehensive summary of the proposed changes is as follows:

  1. WHV holders to be taxed a flat 19 per cent on earnings up to $37,000 (and ordinary tax brackets thereafter) from 1 January 2017;
  2. Employers of working-holidaymakers will need to register with the Australian Taxation Office (ATO) in order to withhold at the 19% tax rate, otherwise withholding must be at 32.5% (although the difference may be claimed back by the visa holder through the tax system);
  3. Reduction of the WHV application charge from $440 to $390 from 1 July 2017;
  4. Employers with premises in different regions can employ a WHV holder for up to 12 months, (i.e. up to six months in each region);
  5. Federal government to provide additional $10 million to Tourism Australia to support a global youth-targeted advertising campaign;
  6. Additional $10 million in government funding to the ATO and the Fair Work Ombudsman to establish an employer register, and assist with compliance and anti-exploitation programs;
  7. A universal $5 Increase (to $60) to the Passenger Movement Charge paid by persons departing Australia  from 1 July 2017; and,
  8. An increase in the rate of tax on the Departing Australia Superannuation Payment (DASP) for working holiday makers to 95 per cent, effective 1 July 2017.

Bipartisan support for the new measures will be necessary in the current parliamentary sitting if the first tranche of changes are to be implemented by calendar 2017.

If you have any migration matters that you would like to discuss in the meantime, please call one of our migration professionals on 02 9922 5188.

A caveat for businesses with foreign workers

Interim figures provided by the Fair Work Ombudsman (FWO) Directorate for Migrant Strategy & Engagement show that 73% of all litigation initiated in the first nine months of the 2015-16 financial year involved visa holders.

This astonishing figure gives further context to the FWO’s Calendar 2015 report which was released earlier this year, and included the following notable data:

  • The FWO received 1916 requests for assistance from visa-holders in calendar year 2015 (almost 13% of total claims)
  • Of this cohort, backpackers on Working Holiday visas continued to account for the highest level of pay disputes, with subclass 457 visa holders, foreign students, recent graduates, and at least 156 ‘unspecified visa holders’ comprising the balance.
  • More than $2.2 million in underpaid wages and entitlements was recovered for more than 500 visa-holders – an average of $4,317 for each claimant.
  • The majority of claims originated from the accommodation and food services sector, and the agriculture, forestry and fishing, and administration and support service sectors.
  • The FWO placed 24 matters before the Courts alleging underpayment of visa-holders and required 15 employers to sign Enforceable Undertakings aimed at addressing non-compliance and encouraging behavioural change.
  • Fair Work inspectors issued 157 formal letters of caution to employers, 145 infringement notices (on-the-spot fines) and 39 compliance notices.

Some businesses are unaware that both the Migration Act and the Fair Work Act can extend liability for contraventions of workplace laws beyond the direct employment relationship.  This means that an employer, referrer, recruiter or end-user of contracted labour can be held jointly and severally liable for the contravention. In addition, culpability can extend to Directors, HR Advisors, Managers (and beyond), under accessorial liability provisions.

In the string of cases that have followed last year’s landmark Choong Enterprises case, the Courts have signalled an increased readiness to impose heavy pecuniary penalties. It is therefore critical that best practice measures be put in place to mitigate the risk of significant civil penalties, reputational damage or even criminal charges.

In response to the interim FWO data, and a myriad of cases in recent months, FCB Smart Visa and FCB Workplace Law will co-present a series of Seminars to comprehensively address compliance issues for Australian businesses. This holistic approach to navigating industrial and immigration legal frameworks is made possible by FCB’s expertise in both practice areas.

Click here for details of the seminar series to be held in Brisbane, Sydney and Melbourne throughout September.

 

Source: www.fairwork.gov.au