Subclass 457 and Associated Visa Reforms: What you need to know?

The surprise announcement by the Prime Minister regarding the axing of the 457 Visa program has created a great deal of uncertainty for employers and foreign workers. While there has been limited regulations or official policy guidance notes released from the Coalition, our team at FCB Smart Visa has curated all available information to cut through some of the ambiguity and misinformation circulating at present.

At the outset, the abolition of the 457 visa program announced by Prime Minister Malcolm Turnbull on Tuesday 18 April 2017 is not a wholesale abolition of the employer sponsored visa regime. The politically charged 457 visa program will instead be replaced from March 2018 with a new category of visa, namely the Temporary Skill Shortage (‘TSS’) visa (subject to passage through both houses of parliament).

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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.

Populist rhetoric threatens to undermine subclass 457 visa program

Back in June, FCB Smart Visa reported on the ALP’s pre-election immigration policy platform concerning work-related visas.  The recent political upset in the U.S. has given Bill Shorten (amongst others) new political impetus in bringing immigration squarely back on to the agenda.

At last week’s Migration Institute of Australia National Conference, Shadow immigration spokesman – Shayne Neumann MP – reiterated his party’s commitment to an ‘Australia first’ policy and the use of labour market testing (LMT) to protect Australian jobs from overseas workers (at any given time, there are around 1.4 million temporary residents with some form of work rights in Australia).   Nobody would deny the political and economic significance of strong workforce participation, but the ALP’s LMT proposition appears to be mere political rhetoric, and the value of a new labour market testing regime is highly questionable on account of the following:

  1. Labour market testing for 457 visa applications is only relevant to around 3% of temporary visas carrying work rights in Australia
  2. It already exists for the majority of trade occupations, nursing occupations and engineering roles. The irony is that these are amongst the very occupations that have been cited by the ALP as jobs in need of protection through LMT
  3. It already exists by proxy for every occupation through the ‘market salary’ requirement – a test of the labour market to ascertain the appropriate salary to be paid to the primary visa holder
  4. It already exists by stealth for every occupation through the ‘genuine position’ requirement
  5. Unless case officers are required to sift through, and draw subjective conclusions from responses to job ads, it will be a futile exercise
  6. And if case officers are required to sift through, and draw subjective conclusions from responses to LMT efforts, it will be an unworkable, and extremely resource intensive exercise
  7. The overwhelming majority of industry and employer groups oppose it, the most recent Independent review of the 457 visa program recommended against it, and the OECD found it unreliable for such purposes
  8. Many will recall that universal LMT is effectively a ‘back to the future’ policy having been abolished over 10 years ago (until the qualified re-introduction of the current LMT regime in 2013)

 

Canary in the coal mine

There is a distinct correlation between the volume of 457 visas sought, and Australia’s unemployment rate.  Over the years, the writer has observed a substantial upswing of 457 visa work when national unemployment dips below 5%.  With a current seasonally adjusted unemployment rate of 5.8% and the lowest number of 457 visa grants in 7 years, this correlation appears to be intact, and is testament to the effectiveness of a demand-driven program.  The proposed adjustments are therefore unnecessary and seemingly contemptuous of Australian business’ needs.

Australia’s focal shift from primary and extractive industries to STEM-based economic outputs will require the input and skill of the world’s contemporary leaders in the field.  This can be achieved via collaborative research and other initiatives, but the international labour market is the most significant and obvious conduit to meeting skill shortages in this area.  Atlassian has been particularly vocal in citing the 457 visa program as a key determinant in its ability to operate a base in Australia.  With approximately 200 staff holding 457 visas, Atlassian is unashamedly a ‘power user’ of the program.  However the real story here is the 700 additional Australian employees who have a career in a strategic growth industry because of the 457 program; the significance of which rarely makes its way into populist political discourse.

There are any number of home-grown innovators in Atlassian’s position who plan to remain in Australia with the support of talent supplemented from overseas.  It is self-defeating for any business-friendly government to hamper access to this pool of expertise whilst baying for Australian business to be globally competitive in these industries in real time.

More than one solution

If the government and opposition want to weed out opportunistic sponsors, a more workable solution would be to simply shift the major cost base to the sponsor.  At present, the lodgement fees that must be borne by an existing business sponsor to nominate a 457 visa holder is $330 (or $750 for a first-time sponsor).  By contrast, unless the sponsoring business elects to pay for tor the visa charges on behalf of applicants (as many do), a family of four needs to pay a minimum of $2,650 in visa lodgement fees.  A premium on the Nomination stage would arguably ‘separate the wheat from the chaff’ without affecting sponsors doing the right thing.  At a minimum, this would be a fair exchange for an onerous and ineffectual universal LMT regime.

It is time to ditch the political bombast in favour of pragmatic solutions, and to prioritise the passage of the key recommendations made by the extensive independent review into this economically vital visa program.

Alex Kaufman

FCB Smart Visa

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

Exploitation of Overseas Workers – A Summary of Recent FWO Decisions & Compliance Seminar Information

Student visa holders underpaid

Two international students have been found to have been underpaid thousands of dollars, during a random audit of a fast-food business by the Fair Work Ombudsman.

The two employees were each underpaid upwards of $3,000 and the business failed to issue payslips; under the Fast Food Industry Award, they should have been paid $23.74 for ordinary hours, $28.49 on Saturdays, $33.24 on Sundays and $52.23 on public holidays.

The business has now received a Letter of Caution that places it on notice that further breaches of workplace laws may result in enforcement action.

Tour operators underpay visa holders

A Japanese national working in the Australian tourism sector was underpaid approximately $10,000, and has been reimbursed following action by the Fair Work Ombudsman earlier this month.

The employee was paid sporadically for months, then not at all for her final five pay periods before she resigned; the employer said that the underpayments occurred because the business could not afford to pay wages on a regular basis.

“For an employer to simply shrug off their legal responsibilities to staff by saying they can’t afford to pay them is simply not acceptable,” Fair Work Ombudsman Natalie James said.

Court orders business owners to pay overseas workers

A business in Queensland that deliberately exploited vulnerable overseas workers has been penalised over $200,000 and ordered to pay former staff tens of thousands of dollars in back-pay.

The employees, paid as little as $10 an hour, were underpaid amounts ranging from $8,300 to more than $18,000 when they worked at the Japanese Sakuraya café in two different Queensland locations between 2013 and 2014.

The owners have been penalised $28,000, and the company has been penalised a further $140,000, including record-keeping penalties.

The Court further ordered that costs of more than $12,000 be paid to the Fair Work Ombudsman towards the cost of flying witnesses from overseas to Brisbane for the litigation; this is the first successful Costs Order sought by the Fair Work Ombudsman in relation to international witness travel for a trial that did not proceed.

Fair Work Ombudsman Natalie James said legal action was taken because of the employer’s refusal to rectify the back-payments and because one of the owners had previously been apprised of his workplace obligations following complaints from other employees of an associated entity of the business dating back to 2012.

Ms James says the penalty decision is a strong wake-up call to employers who think they can ignore their workplace obligations, and failure by vulnerable employees to complain about being underpaid is also no excuse for employers to continue to take advantage of staff, particularly when the employer has previously been apprised of its minimum wage responsibilities.

Korean backpackers underpaid

Two Korean backpackers working as cleaners in Sydney were underpaid thousands of dollars over the course of three months in early 2015.

Under the Cleaning Services Award they should have received a minimum of $18.01 an hour – rising to $27.02 on Saturdays, $36.02 on Sundays and $45.03 on public holidays. The two were paid a flat rates as low as $15 an hour.

The two were short-changed a total of $5,400 and $4,085 each between March and June, and have now been reimbursed fully after the Fair Work Ombudsman issued a Compliance Notice to the employer.

Employers need a robust approach to identify foreign workers and their visa conditions

“Anyone operating a business, including migrants, needs to ensure they take the time to understand the workplace laws applicable to their business,” Fair Work Ombudsman Natalie James said.

“Visa-holders can be vulnerable if they are not fully aware of their rights or are reluctant to seek help, so we place a high priority on taking action to ensure their rights are protected,” Ms James said.

Almost 75% of all FWO litigation is instigated by visa holders, with 13% of recent FWO decisions involving visa holders (July 2015 – March 2016).

This just goes to show how important compliance with both the Fair Work Act and the Migration legislation is. As the Fair Work Ombudsman has said on a number of occasions, visa holders are often the most vulnerable members of the work force, and it is therefore crucial that employers have a robust system to identify foreign workers and the conditions attached to their visas which relate to their work rights in Australia.

Ensuring regulatory compliance with foreign workers and contracted labour

With an increasing number of high profile cases in recent months, the concerns of our clients are growing. In response, FCB is bringing together workplace and migration experts from across our group (FCB Smart Visa and FCB Workplace Law) to co-present a series of seminars that will  comprehensively cover  all the compliance issues for Australian businesses where foreign workers are involved. This holistic approach to navigating both the industrial and immigration regulatory frameworks is made possible by FCB’s unique expertise in both practice areas.

Details of the seminar series to be held in Melbourne (15/16 September), and Sydney (19/20 September), and Brisbane (23 September) can be found here.

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.

Source: www.fairwork.gov.au

 

Perth restaurant chain investigated for breach of workplace relations laws

The owner and operator of a Perth chain of restaurants is facing legal action after an investigation revealed allegations of serious breaches of workplace relations laws relating to overseas workers.

The franchisee and owner of two restaurants, Tram Hoang Han, is facing court over these allegations in relation to restaurants she formerly ran in the Perth CBD and surrounding suburbs.

The Fair Work Ombudsman (FWO) identified that Ms Han had not kept sufficient time-and-wages records for the prescribed period of seven years. Despite these poor records, the FWO was able to calculate that 100 employees across four restaurants had been underpaid more than $30,000 as a result of being short-changed their minimum hourly rate.

The money was paid back to the workers late in 2015, including to a number of international students, 417 working holiday visa holders and 457 skilled worker visa holders.

Ms Han’s outlets had a standard practice to pay low, flat rates and failed to pay penalties for weekend and overtime work. While this is a clear breach of workplace relations laws, it is also likely a breach of sponsorship obligations under the Migration Act 1958 and Migration Regulations 1994, which as a sponsor, Ms Han would have been bound by for her 457 workforce. Among other things, Ms Han would have been bound by the obligations to keep records, and to ensure equivalent terms and conditions of employment for the 457 visa holders sponsored by her.

Ms Han faces penalties of up to $5,100 per contravention and the company faces penalties of up to $25,500 per contravention. In addition, the Fair Work Ombudsman is seeking a Court Order requiring Ms Han and the three companies to use the educational self-help tools available for employers, to prevent repeated future breaches.

Fair Work Ombudsman, Natalie James said the FWO was committed to helping employers to understand and comply with workplace laws, but operators also needed to make an effort to get the basics right in the first place.

FCB Smart Visa will continue to provide updates on sponsorship obligations and workplace related issues for employers and employees. Based on trends and a large number of recent relevant decisions by the FWO, FCB Smart Visa and FCB HR are currently preparing a seminar series to assist employers with compliance and other related issues. Invitations for this event will be sent out shortly.

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

Labor Issues Immigration Policy Media Release on Work-related Visas

Whilst the Coalition’s immigration policy continues to focus on informal maritime arrivals, the Labor party has released a broad-based immigration policy statement ahead of the 2016 Federal election. A substantial proportion of the platform deals with the temporary work visa system, and proposes significant reforms to the current rules and settings surrounding the employment of foreign workers.

Labor’s proposal is based on what is self – described as fairness and equality, and advocates systems being put be in place to both support a growing economy and allow industries access to the skills they need, while also ensuring that workers are treated fairly and are free from exploitation. Labor’s policy will include greater protection for visa holders, and will also ensure that more resources are allocated to monitoring and enforcement for sponsors and visa holders.

The Labor Party has said that it will apply four key principles to its policy on temporary work visa holders:

  1. All workers should be paid Australian wages and benefit from all other Australian terms and conditions of employment
  2. All workers should be employed only for the work that the visa intends
  3. Australian workers should not be excluded or disadvantaged as a result of the temporary work visa programme
  4. Any free trade agreement entered into by the Australian Government should align with the principles in this policy

Arguably all but the concessions alluded to in point four are already a prominent feature of existing 457 visa law.

The alternative Government has also promised it will establish an enhanced Ministerial Advisory Council on Skilled Migration, and elevate it to an independent statutory body comprised of experts in a range of fields. The Council will continue to provide recommendations to Government on skills shortages, training and education, and coordinate labour market analysis across relevant government departments.

Labour Market Testing (LMT)

Under a Labor Government, employers will be required to undertake universal Labour Market Testing for nominations made under a labour agreement or a standard business sponsorship. This higher evidentiary standard will also require all jobs to be advertised for a period of four weeks, and no longer than four months prior to the nomination. The only exemptions to the LMT requirements appear to be where they would be inconsistent with Australia’s international trade obligations (read: KAFTA / ChAFTA et al), and senior intra-corporate transferees, who will have access to a new visa category altogether.

Labour Agreements

A Federal Labor Government will introduce a requirement that sponsors in various industries who have more than a pre-designated proportion of their workforce made up of 457 visa holders, must employ the 457 visa holders under a Labour Agreement, instead of under a Standard Business Sponsorship. As an example, an employer in the Construction sector with more than 33 employees, including at least five 457 holders, will be required to obtain a Labour Agreement.

This requirement may make it easier for businesses to obtain Labour Agreements, but it will also require the Labour Agreement holder to undertake an ‘Australian Job Test’ and provide strong evidence that engagement of the 457 workers will ultimately provide skills and opportunities for Australian employees.

Holders of a negotiated Labour Agreement, and Standard Business Sponsors will appear on a public register.

Market Salary Rate

The market salary rate framework will continue to operate as a component of the 457 visa programme, but the earnings threshold above which there is an exemption from the need to demonstrate market rate should be re-aligned with the income level above which the top marginal tax rate is paid, which is currently $180,001.

Increase in Visa Fees

A Labor Government will increase the 457 visa application charge based on the proportion of sponsored 457 visa holders employed by the sponsor at the time of application. The additional fees will be on a sliding scale (in quartiles) with additional revenue allocated to monitoring and compliance.

Streamlined Visa Processing

Despite the imposition of universal LMT, a Shorten Labor Government will implement streamlined visa processing arrangements based on a risk-tiered approach.

This will allow some businesses to have nomination and visa applications processed in potentially as little as two days, with the maximum time to be within 4 weeks of lodgement.

Path to Permanent Residency

Under a Labor Government, 457 visa holders will be able to apply for permanent residency after two years of work in Australia, regardless of how many employers they have had in this time.

Licencing and Skills Assessment

New visa criteria will generally require applicants to obtain and evidence appropriate licensing / registration no later than 60 days following arrival in Australia.  Certain other nationals in certain occupations will either need to hold a relevant licence when they apply for a visa, or undertake a mandatory skills assessment to demonstrate that they will be able to obtain this licence.

A public register of licenced-occupation visa holders will be established in each profession and in each State and Territory, as part of planned expansion of inter-agency information sharing.

Intra-company Transfers

A Shorten Labor Government will introduce a specific visa category for multinational companies that wish to transfer staff to Australia for up to 4 years

This visa will not require Labour Market Testing, but will only be available to managers, executives, professionals and specialist technicians with a rate of pay higher than that of the prevailing top marginal tax rate (i.e. higher than $180,000 at time of writing).

 

Labour-hire Licensing Regime

Spawned by recent high-profile worker exploitation cases, the Labor party will introduce a universal licensing regime for labour hire companies operating in, or servicing third parties in Australia. Special attention will be given to the agriculture, horticulture, food processing and cleaning industries.

Similar to business sponsorships, labour hire companies will be given a renewable three year licence if they can demonstrate compliance with the Fair Work Act, occupational health and safety laws, immigration laws, and show that they are correctly paying superannuation and tax. Administration of the programme will be under the auspices of a newly formed Labour Hire Licensing and Compliance Inspectorate, an adjunct of the FWO.

Review of Student Visa and Working Holiday Maker Visa Programmes

Given the increasing reports of exploitation and abuse within the Student Visa and Working Holiday Maker Visa programmes, a Labor Government will undertake a review of the integrity of these and will commission two separate reviews into international students and Working Holiday makers in the Australian labour market.

Some of the expected implementations are:

  • The introduction of market rates to apply to holders of these visas
  • Prevention of students and Working Holiday makers obtaining an ABN, to stop these visa holders from acting as contractors or sub-contracts, helping to reduce the risk of exploitation through indirect employment / ‘sham’ contracting arrangements
  • More transparency in the functioning of Approved Employers for seasonal work, ensuring that seasonal workers are able to exercise their rights

Labour Trafficking and Forced Labour in Australia

As a statement of general principle, the Labor policy platform promises to work towards ensuring all migrant workers know their legal rights when applying for employment or education-based visas in Australia. in implementing this policy, all employment or education-based visa holders will be provided with information on entry to Australia to reduce the scope of exploitation in the workplace, and amnesty-based provisions will also encourage reporting of same. Civil penalty proceedings will also be able to be brought by unions in relation to offences in the Migration Act.

 

FCB Smart Visa will continue to provide updates on election related migration issues as 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.