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:
- All workers should be paid Australian wages and benefit from all other Australian terms and conditions of employment
- All workers should be employed only for the work that the visa intends
- Australian workers should not be excluded or disadvantaged as a result of the temporary work visa programme
- 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.
