Visa Newsletters

25th March 2008

Court cases highlight risk of non-compliance
Labour Agreement News
UK Police Clearance Certificate
Condition 8112 and 8547 changes
DIAC clarifies “Closely Related”

Failure to implement Compliance Management Procedures can be a fatal mistake

Being in the media is not always desirable, as the following links regarding incidents of breaches of immigration, workplace and other related laws would suggest.

The acute labour shortage in Australia has forced more and more employers to recruit skilled workers from overseas.Temporary overseas workers, like all Australians, enjoy the rights and obligations under the workplace law.In addition, these overseas workers enjoy the rights and obligations of the Australian immigration law.Employment of overseas workers, contrary to popular belief, generally imposes greater costs and risks to an employer.For example, under the 457 program, an employer must pay:

  • a minimum salary based on 38 hours per week;
  • return travel airfare for the holder and dependents
  • public hospital and medical costs incurred if these costs are not paid for by the holders
  • removal costs etc.

The public hospital/medical costs continue until they are paid!(even if the holder has left Australia.)

As discussed in our past Alerts, the DIAC has strengthened its enforcement measures to ensure strict compliance with the immigration laws.In addition to the sponsor's obligations under the law, the Federal Government passed the Employers Sanctions Act last August making it a criminal offence to knowingly or recklessly employ an illegal worker, including employment of a worker breaching visa conditions.

Incident (1) highlights the onus upon the employer to acquire a sound understanding of the concomitant obligations before and after becoming an approved business sponsor, and to implement compliance management measures to reduce future exposure.This case suggests that temporary workers can sue their employer for unfair dismissal.Similarly, the large penalty imposed by the Federal Magistrates' Court in (2) confirms that the court does not tolerate deliberate exploitation of foreign workers and these workers can expect to receive the full protection of the Australian workplace law.Item (3) provides a summary of recent cases involving abuses of the 457 program, but is also representative of the generally heightened level of media attention that the topic of foreign workers now attracts.

Risk is now a chief concern of business leaders world-wide and many business organisations now have full risk management procedures to mitigate the effects of risk.Yet few employers in Australia, including large business organisations, have included breach of immigration law as a risk issue.The above incidents highlight the danger of ignoring compliance risks.Failure to manage these risks properly would lead not only to business interruption and financial loss, but the damage to the reputation of a company may take years to rebuild.

Abacus Visa specialises in Australian immigration law.We provide a comprehensive range of services to assist our business clients to manage the 457 visa programme.

  • Business sponsorship and the related nomination and visa applications.
  • Devise a well-considered application strategy to meet your short and long-term expatriate needs.
  • Advice on compliance with sponsorship obligations and the related immigration laws.
  • Develop policies and procedures for your business to ensure on-going regulatory compliance.
  • Train your staff on immigration procedures and compliance requirements.
  • Maintain a comprehensive database of your sponsored employees.
  • Response to DIAC audit and monitoring relating to your sponsored employees.
  • Verification with DIAC and advice on legal and work rights status of your prospective employees.
  • Assist your sponsored employees to purchase health insurance cover.
  • Superannuation access for departing sponsored employees.

Labour Agreement

From 31 October 2007, the Labour Hire Industry must apply for access to a labour agreement in order to sponsor overseas workers.The DIAC promised an expedited process .Unfortunately, there has been little action since, with only one firm granted access, causing huge disruption to the LHI.I am not confident the latest Ministerial Announcement is indicative of any further progress on this front.It would suggest that access to a LA will now have to go through three agencies, DIAC, DEWR and the relevant industry body (bodies!).

Immigration Package to ease skills shortage

The Minister of DIAC recently announced the following:

  • Established an External Reference Group made up of industry experts to examine the temporary skilled migration program (yet again).
  • Fast tracking of the 457 visa processing time for accredited sponsors – likely to benefit health and mining sectors.MIA has been lobbying hard for sponsors with sound records to be included for fast tracking processing.
  • Extending the working holiday visa to include employment in the construction industry in regional Australia.
  • An additional 6,000 placesbringing to 108,500 the total number of permanent visas under the skills stream program in 2007-2008.(Employer sponsored visas (e.g. ENS856) are given the highest priority because they put a migrant worker directly into a skilled job.)

457 vs 856

With the increasing obligations imposed on the 457 sponsors, employers may wish to consider the advantages of sponsoring the existing 457 holders to become permanent residents under the subclass 856 Employer Nomination Scheme.Once a 457 holder has become a permanent resident, the employer will no longer be subject to the sponsor's undertakings.The employer will continue to have obligations to the worker under the relevant workplace and related laws.The employer must be aware that the holder is also no longer tied to the employer, except under the terms of the employment contract and can therefore change employment as they wish.

Tip: Ensure an appropriate employment contract is in place prior to sponsorship.

Processing Time and Issues

Applications lodged with complete supporting documents receive faster turn around time.DIAC officers should not have to request additional information, since this should have been provided at the time of lodgement (exception – applications that must be lodged due to visa expiry).

UK Police Clearance Certificates - Changes

DIAC has advised that a new system for UK Police clearances is now being put in place and form 47P is being revised to include the changes. New system for UK Police Clearances

Clients of MIA members can receive priority access to the IELTS tests

The Migration Institute of Australia has negotiated an arrangement for MIA members to obtain earlier IELTS test bookings for their clients in Sydney.These bookings are only available to MIA members.Please contact our office for details.

DIAC POLICY CORNER

Condition 8112-changed again

Subclass 456, 459, 956 (ETA) and 977 (ETA) visascarry condition 8112.

DIAC has announced yet another change to the policy on what activities can be carried out by people holding these visas.For details of this change, please visit: Changes to policy 8112

Condition 8547 – Working Holiday Makers – Restriction and Waiver

Policy changes on 8547 were introduced quietly by DIAC recently.While the general restriction of six months with one employer (8547) still applies, the Procedures Advice Manual (PAM) reflects some changes for those holding bridging visas, including the ability to remain with or return to the same employer in some circumstances.Please contact our office for details.

“Closely Related” - 2 year study rule – DIAC clarifies policy guidelines

Where an applicant claims to have met the two year study rule for their completed Australian studies, the completed Australian qualification/s must be ‘closely related’ to the nominated skilled occupation.The ‘closely related’ requirement is to ensure that applicants have qualifications that are compatible with their nominated skilled occupation.

The DIAC explanation is as follows:

“The critical factor under policy in determining whether the qualification is closely related to the occupation is whether the skill sets underpinning the qualification/s are complementary to and can be used in the nominated occupation – in terms of subject matter and the level at which those skills were obtained.”

Problems existing under the current two year ruling are where eg: in circumstances where a qualification not being ‘closely related’ to the nominated occupation include where the occupation is not related to the nominated skilled occupation ie: an applicant’s nominated occupation is Registered Nurse and they have completed a bachelor of commerce to meet the two year study requirement. Another circumstance in where a qualification would not be considered as ‘closely related’ to the nominated occupation is where the level at which the skills obtained were inconsistent with the level at which the applicant is skilled to work. For example, an applicant who completes a Certificate III in Furniture Making and a Masters of Information Technology to meet the two year study requirement. Although basic IT skills are generally applicable to most occupations the high level skills gained by completing a Masters course is inconsistent with the skills that would be useful on a day to day basis as an entry level tradesperson.”