Ariel Brott outlines the proposed changes to 457 visas and what it means to business. Read on to apply for a FREE consultation worth $387.
As an election draws near, the Minister for Immigration has proposed new laws to crack down on alleged abuses of the subclass 457 visa scheme. What HR professionals might see as an ingenious new way of making their lives harder, the Government has called “a comprehensive package of reform which would balance the interests of workers with the need to strengthen protections for overseas workers”. Either way you look at it, the proposed Migration Amendment (Temporary Sponsored Visas) Bill 2013 will, if passed, change the way you deal with potential foreign recruits.
Labour Market Testing
Labour Market Testing is back, after being abandoned some 10 years ago. This means, in order to nominate foreign workers, employers will have to provide evidence of labour shortages. For example, employers might demonstrate that they have made attempts to fill a vacancy locally through advertising, participation in career expos or fees paid for recruitment attempts. Alternatively, employers might evidence labour shortages by submitting research into labour market trends or expressions of support from relevant government authorities.
Labour Market Testing Exemptions
Exemptions from Labour Market Testing will apply in the case of major disasters. Certain occupations will also be exempt, namely those that require a minimum of either a diploma covered by the AQF and/or three years relevant experience, or a degree and/or five years relevant experience - which is to say Skill Levels 1 and 2 as set out in the Australian and New Zealand Standard Classification of Occupations (ANZSCO).
With most professional and managerial occupations apparently exempt, it would seem these changes are intended to target trade occupations. However, at this stage the impact on non-trade occupations is not entirely clear, as in order to be exempt an occupation will also have to be specified by the Minister in a legislative instrument.
The proposed legislation also:
Codifies sponsor obligations
Authorises Fair Work inspectors to be inspectors under the Migration Act, effectively boosting the number of immigration inspectors from a few dozen to several hundred
Introduces enforceable undertakings as a form of sanction for employers in breach
Extends from 28 days to 90 days the period of time that a 457 visa-holder has to look for a new job or leave the country after ceasing employment with their sponsor
In addition, the Minister has announced that a 457 dob-in hotline will be created for the purpose of reporting employers in breach of their obligations. Further strengthening of the obligation framework is also expected.
The proposed legislation signals two likely developments, of which all HR professionals should take heed.
First, Labour Market Testing will add new obstacles, costs and delays to the recruitment process. Anyone dealing with the recruitment of foreign personnel should become familiar with the proposed requirements and, in order to avoid unnecessary advertising or research, the corresponding exemptions.
Second, we are seeing a move towards greater monitoring and enforcement of sponsor obligations. Employers will need to ensure they have compliance systems in place that hold up to any scrutiny.
Finally, it should be noted that with the forthcoming election, it remains unclear when, if ever, this legislation will actually come into effect, and in what form. I will report further as new information comes to light.
About the author
Ariel Brott is a solicitor and migration agent in the corporate division of Australia’s leading migration firm Erskine Rodan & Associates. If you have any migration-related queries, Erskine Rodan & Associates, in conjunction with Human Capital Magazine, is now offering a FREE consultation worth $387, to all subscribers across Australia, for matters relating to the recruitment of foreign personnel. Whether you need a new immigration adviser, or just a second opinion, we invite you to discuss your concerns with Australia’s most celebrated specialist immigration law firm. To get your free consultation, email: firstname.lastname@example.org