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

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

 

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.

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.

The occupational ceilings for the 2016-17 programme year have now been announced. Occupational ceilings apply to Skilled Independent Subclass 189 and family sponsored Skilled Regional (Provisional) subclass 489 visas and will come into effect on 1 July 2016.

The following occupations have seen an increase in places:

  • Software and Applications Programmers – 6% increase
  • Engineering Managers – 39% increase
  • Electrical Engineers – 2% increase
  • Air-conditioning and Refrigeration Mechanics: 64% increase
  • Registered Nurses – 18% increase
  • Chefs – 15% increase
  • Plasterers – 15% increase
  • Wall and Floor Tilers – 15% increase
  • Physiotherapists – 22% increase
  • Psychologists – 26% increase
  • Medical Laboratory Scientists – 18% increase
  • Solicitors – 58% increase
  • Other Medical Practitioners – 32% increase

While the below have seen a decrease in places:

  • Computer Network Professionals – 28% decrease
  • ICT Business and Systems Analysts – 4% decrease
  • Civil Engineering Professionals – 27% decrease
  • Industrial, Mechanical and Production Engineers – 14% decrease
  • Panelbeaters: 12% decrease
  • Metal Fitters and Machinists – 17% decrease
  • Health and Welfare Services Managers – 17% decrease
  • Social Workers – 18% decrease
  • Architects and Landscape Architects – 16% decrease

The change in the occupational ceilings for the new programme year is good news for accounting professionals, but may have some ramifications for IT professionals who will likely face higher minimum points scores if applying in the 2016-17 programme year.

FCB Smart Visa will continue to provide updates on the occupational ceilings for the 2016-17 programme year 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.

On 1 July 2016, the Department of Immigration and Border Protection (DIBP) will implement changes to the requirements for businesses wishing to become Accredited Business Sponsors.  Businesses that meet the new criteria and have a history of ‘good dealings’ with DIBP are able to gain this status and have their sponsorships approved for six years (as opposed to 5), and benefit from priority processing and ‘streamlined’ processing of 457 nomination applications.

The sponsor must meet all the requirements for Standard Business Sponsorship, in addition to the following special criteria:

  • Be a government agency, a publicly-listed company or a private company with at least AUD four million annual turnover for the last three years;
  • Have been an active 457 sponsor for at least three years (with no more than a six month break in the past 36 months), with no adverse information (based on monitoring, including formal warnings and sanctions);
  • Have sponsored at least ten (previously 30) primary 457 visa holders in the 24 months (previously 12) prior to the application for accreditation;
  • Have lodged an agreed level of decision-ready applications over the previous two years;
  • Have a refusal rate of less than 3% for the previous three years;
  • Have Australian workers comprising at least 75% of their workforce in Australia;
  • Engage all 457 holders as employees under a written contract of employment that includes at least the minimum   employment entitlements as required under the National Employment Standards (unless their occupation is exempt from this requirement);
  • Have all Australian employees paid in accordance with an Enterprise Agreement or an internal salary table that reflects the current market salary rates for all occupations in their business;
  • Have provided details of all business activities undertaken by their business to the department; and,
  • Have provided details of all Principals / Directors of their business to the department.

If you think the changes might bring your business into contention for Accredited Sponsorship status, contact us to for an obligation free assessment.

FCB Smart Visa will continue to provide information relevant to the temporary skilled migration programme when it becomes available. If you would like to discuss how these and other changes will affect you or your business, please call one of FCB Smart Visa’s registered migration professionals on 02 9922 5188.

hospitality-workers

As it presently stands subclass 457 visas are only available for eligible employees who earn above the Temporary Skilled Migration Income Threshold (TSMIT). The current TSMIT has effectively been frozen at $53,900 since July 2013.

As set out in our recent alert, the TSMIT is expected to be increased from July 2016 and estimates suggest it could be increased as high as $59,540. Employer sponsors who pay employees in this salary range should take immediate steps to nominate workers for sponsorship, otherwise the increase in the TSMIT will increase costs and potentially affect their ability to sponsor workers in certain positions.

Eligible sponsorship positions in the hospitality and leisure industry that are likely to be affected include, but are not limited to, the following:

  • Cook
  • Cafe or Restaurant Manager
  • Pastry Cook
  • Program or Project Administrator
  • Sales and Marketing Manager
  • Chef
  • Hotel or Motel Manager
  • Marketing Specialist
  • Accommodation and Hospitality Managers
  • Accountant (General)

An increase to the TSMIT may have the result that it will be cost prohibitive for many employers to nominate workers for 457 sponsorships in the positions above.

What can be done to take advantage of the current TSMIT?

The applicable TSMIT governing market rates is the TSMIT in place at the time the nomination application is approved.

At present, the service standard published by the Department of Immigration and Border Protection for processing 457 visa applications is up to 3 months. Therefore, immediate steps need to be taken by employer sponsors to lock in the current TSMIT prior to the anticipated increase. Finalising sponsorship arrangements now will effectively preserve the lower TSMIT for up to 12 months (the standard validity period of an approved 457 visa nomination).

If you would like to discuss how the expected TSMIT increase can be managed or the effect of the increase on your sponsorship arrangements generally, please contact Jacob Wyllie or Alex Kaufman on 02 9922 5188.

Mr John Azarias – Chair of the most recent review into the 457 visa programme – was appointed in December 2015 to undertake an evidence based review of the Temporary Skilled Migration Income Threshold (TSMIT). The TSMIT (the ‘market salary’ benchmark beneath which a subclass 457 nomination will be refused) has been effectively frozen at $53,900 since July 2013.

Stakeholder submissions have now been collected in connection with the review, and the report is due to be tendered to the Minister in April. Whilst specific outcomes are difficult to predict, these may include a tiered TSMIT based on regional areas and/or industry sector. However, it is almost certain that the moratorium on indexing the TSMIT will come to an end, and take effect from as early as July 2016.

An increase to the TSMIT will render some roles ineligible for sponsorship if the market rate for that occupation is below the new TSMIT. Should the TSMIT be increased and pegged to the All Employees Average Weekly Total Earnings, recent ABS data would suggest that the new threshold could be around $59,540.

Nominations for roles in skilled, but traditionally lower paid sectors such as nursing and hospitality would be impacted most by the change, as would roles paying a commissionable component from a low base rate of pay.

Call to action

Under law, the applicable TSMIT governing market rates is the threshold in place at the time the nomination application is approved. This means that depending on timing, an application with a ‘marginal’ annual earnings may be invalidated if the TSMIT increases between lodgement and finalisation. At present, the DIBP’s published service standard for processing such applications is up to 3 months.

Sponsors who are potentially affected by the changes can take steps to insure against an increase by bringing forward lodgement of a genuine nomination application and effectively preserving the lower TSMIT for up to 12 months (the standard validity period of a subclass 457 nomination application). An associated subclass 457 visa application can be subsequently lodged against the approved nomination at any time during its validity period.

Timing, and meticulous preparation are crucial components to this strategy, and should be discussed with us, or your current qualified immigration professional.

FCB Smart Visa will continue to provide updates on new migration legislation as it becomes available. If you have any migration matters that you would like to discuss, please call one of our migration agents on 02 9922 5188.

 

Prime Minister Malcolm Turnbull’s innovation policy has included plans to encourage the best and brightest to choose Australia to start their business. A new innovation visa, which will be introduced in December next year, will be used to actively promote Australia as a destination of choice for many entrepreneurs and business people, and will serve to offer a more direct pathway to permanent residence for those with science, technology, engineering, mathematics and ICT qualifications.

The visa will be open to those with innovative ideas, and the financial backing of a third party. Prime Minister Turnbull has said that the higher-quality and more innovative they are, the more they will drive jobs and meet the demands of Australian businesses.

If the business of those entrepreneurs who have obtained a provisional visa is successful, they would gain more points towards a skilled independent visa, giving them a greater chance to gain permanent residence.

FCB Smart Visa will continue to provide updates on the new innovation policy and visa as information becomes available. If you have any migration matters that you would like to discuss, please call one of our migration agents on 02 9922 5188.

It has been determined that the imposition of Labour Market Testing would ultimately be inconsistent with Australia’s international trade obligations arising under the China-Australia Free Trade Agreement (ChAFTA), hence, Labour Market Testing is not required for the following occupations when the ChAFTA comes into force:

  • Executives, senior managers, and managers, as intra-corporate transferees
  • Specialists and intra-corporate transferees
  • Independent executives
  • Contractual service providers

FCB Smart Visa will continue to provide updates on ChAFTA’s effect on Australian visa programmes as information becomes available. If you have any migration matters that you would like to discuss, please call one of our migration agents on 02 9922 5188.