What are the impacts of the 457 visa changes?

In Summary, the 457 visa changes have substantial effects:

1) Lodged applications for 457 visas for over 216 occupations are being declined retrospectively
2) The difficulty of obtaining short term and medium term 457 visas has increased
3) Permanent residency applications for short term occupations are blocked
4) Strict caveats for many skilled occupations are now enforced and include
- specialised job duties
- minimum levels of work experience
- new maximum age restriction
- increased English skill requirement
- limitations of the exercise of specific jobs to certain regional areas
- specific minimum market salary rates set individually for each occupation
- sponsor's minimum annual turnover and staffing levels criteria for sponsors.

Pptions moving forward?

Has your occupation been removed from the 457 Occupation List?
If your occupation has been removed from the 457 skilled occupation list, we recommend that you consider alternative pathways to a working visa within Australia and contact us now to discuss your personal situation.

Are you currently on a 457 VISA?

Even if you are currently on a 457 Visa, the changes to the 457 visa apply if your occupation has been removed from the skilled occupation lists.

If you are currently on a 457 Visa and your occupation is not listed on the new skilled occupation list, you will not be able to apply for a renewal of your visa and will need to apply for Permanent Residency.

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Fast food businesses will no longer be able to bring in foreign workers on 457 visa

The Minister for Immigration and Border Protection Peter Dutton announced recently that the government has ended the Fast Food Industry Labour Agreement which saw hundreds of foreign workers take jobs at fast food outlets across Australia.

 

McDonalds, Hungry Jack’s and KFC will be barred from sponsoring foreign workers on 457 visas, which are intended to fill temporary skill shortages. This will provide more career opportunities for Australian workers, particularly young Australians.

 

The Coalition Government is committed to implementing reforms that strengthen Australia's skilled migration programme to ensure overseas workers supplement rather than provide a substitute for Australian workers

 

Therefore Australia has introduced a new work visas from November 2016. The new visa subclasses would allow applicants to enter Australia for temporary work or a specified activity.

 

As a result, those currently working in fast food chains on 457 visa will be forced to leave Australia once their agreements run out unless the restaurant is able to present an individual case as to why they should remain in the country.

 

Businesses will be allowed to request for foreign workers in exceptional circumstances and businesses can still make requests under normal labour agreement arrangements to ensure that exceptional circumstances can be considered.

 

Genuine business needs for overseas workers which contribute to economic growth will still be considered

 

The debate on 457 visas which allows employers to bring in skilled workers from abroad has gained momentum recently with the Australian government undertaking a review of the list of occupations available for the application of 457 visa.

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Changes to 457 scheme on the way

It seems that every few years the 457 temporary work visa comes under intense parliamentary and media scrutiny, and we are now at that point again.

In the past few weeks we have seen an intense media campaign highlighting alleged rorts of the system by unscrupulous employers. In addition, possibly reflecting elements of the political agenda of Donald Trump, the opposition leader, Bill Shorten, has introduced a private members bill to review the 457 visa system.

The Migration Amendment (Putting Local Workers First) Bill 2016, calls for stronger testing, stricter licensing criteria for 457 workers and more restrictions for employers.

Not surprisingly, the ACTU is strongly in support of this bill, arguing that the system needs a complete review notwithstanding the fact that a comprehensive review was only recently finalised.

The biggest area of attack on the current scheme is the list of eligible occupations for 457 purposes. This list currently includes 651 occupations which many argue bears little resemblance to areas of general skills shortage.

Adding to the pressure for a further review system is the evidence of exploitation which has surfaced as a result of the 7 Eleven scandal, and more recently, potentially Caltex as well. Typically, employees of these organisations have been either 457 holders, backpackers or students with work rights, and there has been concern that in many cases employers have forced people to work for sub par wages and conditions with veiled threats of possible visa violation charges, and possible deportation if they do not accept terms which have been offered.

A recent statement by the Minister in Parliament makes it clear that the list of occupations will be looked at. Possibly we will also see more stringent labour market testing being introduced in the future.

Employers contemplating sponsoring someone for a 457 visa, or workers hoping to be sponsored should think about making an application as soon as possible prior to any changes being introduced.

 

 

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Who can become a sponsor (457 visa)?

Who can become a sponsor?

To become a sponsor, you must be able to show that your business:

• is a lawfully operating business
• has no relevant adverse information against your business.

Australian businesses must also demonstrate their commitment to employing local labour as well as non-discriminatory recruitment practices.
There are two ways you can become an approved sponsor:

• Option 1: Apply to be a standard business sponsor
• Option 2: Negotiate a labour agreement.

Option 1: Apply to be a standard business sponsor

The standard business sponsorship arrangement is the most common way to sponsor a skilled worker using the subclass 457 visa program. You must lodge an application to become a standard business sponsor.


You can have only one standard business sponsorship approved at any given time (that is, one sponsorship approval per legal entity) which is usually valid for five years. You can apply to extend your sponsorship at any time during this five-year period by lodging a variation application.


The requirements for approval as a standard business sponsor differ for businesses that are outside and in Australia.


Business in Australia
You must attest, in writing, that you have a strong record of, or a demonstrated commitment to employing local labour. You must also declare that you will not engage in discriminatory recruitment practices.


Make the attestation and the declaration about your workplace record in your sponsorship application form.
You must also meet training requirements. This means you must either:

• meet the training benchmarks if you have traded in Australia for 12 months or more
• have an auditable plan to meet the training benchmarks if you have been trading in Australia for less than 12 months.

Business outside Australia
You must be seeking to employ a skilled worker to either:

• establish, or help establish, a business operation in Australia
• fulfil obligations for a contract in Australia.

If your business does not yet have an operating base in Australia, you are not required to satisfy the training requirement.

Option 2: Negotiate a labour agreement

A labour agreement is a formal arrangement negotiated between an Australian employer and the Australian Government. You might be able to enter into a labour agreement if you are in one of the following situations:

• the occupation of the workers you want to employ is not listed on the Skilled Occupation Lists (Formerly Known as Form 1121i) or theAustralian and New Zealand Standard Classification of Occupations (ANZSCO)
• you are a recruitment company seeking to sponsor skilled workers to be on-hired to another businesses, and the occupations requested are on the Consolidated Sponsored Occupations List (CSOL)
• standard immigration options are not suitable.

You must be able to provide evidence that:

• there is a genuine and systemic shortage of skilled workers
• there are no suitably qualified Australian workers available
• you have a commitment to training Australians.

A labour agreement comes into effect when it has been signed by all parties involved in the negotiations. A labour agreement is typically valid for three years.


How to propose a labour agreement


You need, among other things, to:

• identify the relevant skills shortage in the business and why these vacancies cannot be filled by Australian workers (you need to show you have tried to recruit in Australia)
• specify the number of skilled workers needed from outside Australia
• specify the skill and English language requirements that relate to the nominated occupations. Semi-skilled occupations can be considered provided they are specialised and in demand
• include copies of correspondence showing that relevant stakeholders have been consulted.

You might be able to use a template labour agreement if there is one for your industry or your worker’s occupation. A template labour agreement is a set of standard parameters for similar employers: it does not guarantee an agreement will be approved.


If the template does not suit your needs, you might be able to negotiate an individual agreement.


Labour agreements include a requirement to provide training to Australian employees.
When you have a labour agreement in place, you are an approved sponsor for the term of operation of the agreement. You can then nominate skilled workers from outside Australia under the terms of the labour agreement.


You will also need to meet your sponsorship obligations and any other terms and conditions specified in the agreement.  If you breach the terms and conditions of your agreement, we could suspend or terminate it.


Standard business sponsors

To sponsor a worker as a standard business sponsor, you must:

• be a lawfully operating business
• have no relevant adverse information against your business.

If your business is in Australia, you must also:

• meet training requirements
• demonstrate your commitment to employing local labour
• not engage in discriminatory recruitment practices.

You can use Visa Entitlement Verification Online (VEVO for Organisations) to check the work entitlements of your prospective employees.

A lawfully operating business

You must be a lawfully operating business to apply to be a standard business sponsor. This applies to businesses both in and outside Australia.
To demonstrate this you must show both of the following:

• your business is legally established
• your business is actually operating.

A business that exists only on paper cannot satisfy this sponsorship requirement.
If you do not operate in Australia, you must be able to show that you need a skilled worker to:

• come to Australia to establish, or help establish, a business operation with connections with a business located outside Australia
• fulfil, or help in fulfil, a contractual obligation.

If your business is new, you can still satisfy this requirement if you can provide evidence that your business is in fact operating, even if this has been for only a short period of time.
Examples of the documents you can use to show that your business is legally established and operating are in the Document checklist.


If you operate a business under a trust arrangement you must provide details of the Trust Name and the Trust ABN when you complete the application form.  The application should be made using the name of the Trustee as it appears in the Trust Deed.


Details of the principals of your business such as Owners, Partners, Directors and major Shareholders should be provided when you complete the application form.


Contact us today for more information and assistance.

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VISA UPDATE: Subclass 400 Visa (short term work visa)

You can apply for this visa if you need to enter Australia to undertake one of the following activities:


Highly specialised work

You can apply for this visa to do short-term, highly specialised, non-ongoing work in Australia if you have specialised skills, knowledge or experience that both:

• can assist an Australian business
• cannot reasonably be found in the Australian labour market.
  Highly specialised work is usually work that either:
• is done by people with an occupation listed in Major Groups 1, 2 or 3 of the Australian and New Zealand Standard Classification of Occupations (ANZSCO),
  or
• requires skills and knowledge that are specific to an international company, such as installing imported equipment, after-sales service or emergency repairs

Invited participants

You can apply for this visa if you have been invited by an organisation to participate in a cultural or social event or events on a non-ongoing basis.

The inviting organisation must be both:

• operating lawfully in Australia
• directly responsible for the event or have a formal role in preparing for or conducting it.
• You cannot accept any salary, wages or other remuneration for participating in the event, other than:
• prize money
• appearance fees
• reimbursement for your reasonable expenses of doing the activity
• payments from your non-Australian employer.

You can apply for this visa if you are, for example, a sportsperson participating in specific events or touring as part of a sports team, a public lecturer, an artist, an author or a photographer.

This visa is not intended for business people attending a conference or taking part in meetings or business negotiations. You can apply for a Visitor visa (subclass 600)-Business Visitor stream instead (such as Visitor visa (subclass 600). 

Emergency Workers and Other Exceptional Circumstances

In very limited circumstances, this visa may be granted in Australia’s interest. In these cases, the department needs to be satisfied that the activity identified in the visa application is of national significance.

For example, this visa could be granted to emergency workers to come to Australia after a natural disaster.

NOTE: Your work or activity must be non-ongoing. This means that you can finish the work and activity in three months or less. Do not make arrangements to stay in Australia any longer than that. You also should not agree to being rotated through a position on a short-term basis as one of a number of overseas workers. If the work is ongoing, and even if your contract is less than three months, apply for a Temporary Work (Skilled) visa (subclass 457).

Generally you can stay in Australia for up to three months where required, but depending on your work or activity a longer period of up to six months may be allowed in limited circumstances.

 

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457 Visa changes - visa condition 8107

Migration Legislation Amendment (2016 Measures No. 4) Regulation 2016 amends a number of provisions of the Migration Regulations 1994 as listed below:

Schedule 1 - Visa Condition 8107

• This Schedule reduces the time period that a Subclass 457 (Temporary Work (Skilled) visa holder can remain in Australia after ceasing employment with their current sponsor from 90 days to 60 days


•  If 457 holder has not found a new sponsor within 60 days of ceasing that employment, they will be in breach of their visa condition 8107 and their visa may be cancelled.


• This amendment applies to 457 visas granted on or after 19 November 2016.

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The Temporary Work (Skilled) visa (subclass 457) visa

The subclass 457 visa is the most common visa Australian employers use to sponsor skilled workers from overseas.

It allows visa holders to work for up to 4 years under the sponsorship of their employer. The business that sponsors an overseas skilled worker must be an approved Standard Business Sponsor to be able to sponsor someone to work on a 457.

The subclass 457 visa is a three stage process:

First Stage: The business must apply to become a Standard Business Sponsor to be able to nominate an overseas skilled worker in their company.

Second Stage: The approved business sponsor is required to lodge a nomination for a position in the business that is required to be filled.

Third Stage: The prospective 457 visa applicant needs to make an application for a subclass 457 visa.

Nevett Ford Lawyers can assist with the entire process and guide you through the various legislative requirements.  Contact us today for more information and advice.

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Subclass 187 Regional Sponsored Migration Scheme visa

The 187 regional Sponsored Migration Scheme visa is designed for skilled workers who wish to work in a regional area in Australia. The RSMS helps businesses in regional, remote or low population growth areas, outside the major metropolitan centres to recruit skilled workers to fill positions that are unable to be filled from the local labour market. This is a permanent residence visa.

You can only apply for the 187 RSMS visa if your nominated position is located in regional Australia. Your sponsoring employer must also be actively and lawfully operating its business in this regional area. Regional areas are basically areas that are outside the major metropolitan centres of Brisbane, Gold Coast, Sydney, Newcastle, Wollongong and Melbourne. The good news is that the whole South Australia, Western Australia, Australian Capital Territory, Tasmania and Northern Territory are classified as regional areas. For eligible postcodes that is outside of the major metropolitan areas, please check here.

This visa allows you to work in Australia under one of the three streams:

• the Temporary Residence Transition stream
• the Direct Entry stream
• the Agreement stream.

The Temporary Residence Transition stream is for subclass 457 visa holders who have worked for two years, while holding a subclass 457 visa, in the same occupation with their nominating employer (who is not subject to a labour agreement and who has lodged a valid nomination with us under the Temporary Residence Transition stream), who wants to offer them a permanent position in that occupation.

The Direct Entry stream is for people who have been nominated by their employer under the Direct Entry stream people who have never, or only briefly, worked in Australia temporary residents who do not qualify for the Temporary Residence Transition stream.

The Agreement stream is for subclass 457 visa holders nominated by an employer through a labour agreement.

Your role must be in a regional area and your nominating employer needs to operate their business in the regional area. Although the employer doesn’t need to only operate their business in this area, or have their registered head office in the regional area. As the nominee, you don’t have to live in the regional area. You can travel to the regional area for work purposes. However, you can’t perform your role remotely. You need to be physically in the regional area to perform your role. For example, if your occupation is IT based, and you’ve been offered a role in Ballarat but you’re able to perform this remotely from Melbourne. You are not eligible to lodge the RSMS visa.

If your role requires you to work in several locations, each of these location must be located within a regional area. Occasionally travelling to non-regional areas for meetings, presentations, training etc. is allowed. But if you need to regularly work outside of regional areas, then the nomination application won’t be approved under the RSMS pathway.

For more information or if you need assistance with a 187 RSMS Visa, contact us at Nevett Ford Lawyers.

 

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Shell Australia Chairman believes regional migration is key to resource sector growth

While the media continues to scrutinise the Australian immigration program, recently at a Melbourne Mining Club conference, Shell Australia chairman Andrew Smith, emphasised the importance of immigration in boosting resource industry and economic growth.

Mr Smith said, ‘Often hysterical debate has surrounded Australian immigration in the new millennium. There has been a failure of industry to advocate for an immigration program that will provide economic stimulus to a sluggish economy.’

Mr Smith believes skilled labour shortages in the resources, oil and gas industries in regional areas in Australia’s north such as Broome and Gladstone provide potential for skilled migrants to contribute to growth in the resource industry and the Australian economy.

‘Today Australia’s economic growth is being driven by Melbourne and Sydney with their diverse economies. But as we strive for a more prosperous Australia, we must increase immigration levels and grow population in other areas of the nation. We must look to the economic potential of our regions and our regional centres. And this is where the mining and petroleum sectors can have a great contribution. As a leader in the resource sector, it is the ability of our industry to make a contribution outside the capitals that excites me most,’ he said.

Mr Smith stated, ‘This will only happen when we grow the population with a mix of internal and international migration to the regions’.

Mr Smith also highlighted the important role immigration plays in driving sustainable population growth to regional areas, providing incentives for the government to invest in regional community infrastructure.

Mr Smith said, ‘Just as Bendigo’s growth was fuelled by an influx of Asian immigration in the 1850s, or nearby Geelong’s growth was fuelled by Italian and Greek migration in the 1950s, the north of our nation must welcome new Australians.’

‘Industry leaders need to both advocate for a balanced mix of skilled and humanitarian migration, then back up our advocacy with meaningful decisions that contribute to legacy. It is only through population growth that economic diversity will be delivered, unlocking the potential of Australia’s north,” he said.

Mr Smith added, ‘These comments are not a call for more or less 457 visa intakes. Specialised tasks in highly technical sectors like ours will always require the temporary importation of specific skills. We have some of the planet’s most desirable mineral deposits but we will only unlock this potential, and its economic dividend, if we are able to bypass populist protectionist voices on immigration policy, and grow our population’.

SOURCE: The Australian newspaper

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How does the 457 visa work?

With a 457 visa you can work in Australia for up to four years. You can bring your family with you (they can work and study) and you can travel in and out of Australia as often as you like.

The employer/sponsor must: 

Apply to be a sponsor to recruit overseas workers; nominate the positions they want to fill; recruit the overseas workers to fill the nominated positions; and act as a sponsor for employees applying for a visa.

 

You as the employee accept the offer of employment from the employer; apply for the visa; and meet all the conditions of your visa.

Am I eligible for the 457 visa?

To apply for a 457 visa as an employee, your application must follow that of your sponsoring employer. To be considered for a 457 visa, you must meet the following criteria:

• You must be sponsored by an employer to fill a nominated position.
• You must work in a skilled occupation that's been approved by the Australian Government on the Consolidated Sponsored Occupations List (CSOL).
• You must have skills, qualifications, experience and an employment background which match those required for the position.
• You must have English language skills (if you do not hold a passport from UK, USA, Ireland, New Zealand or Canada) (some other exemptions apply).
• You must be eligible for any relevant licences or registration required for the nominated position.
• You must demonstrate that you are to be paid at least the minimum salary level that applies at the time a decision is made on your visa.
• You must meet health requirements.
• You must meet character requirements.
• If you are in Australia at the time of application, you must not have prohibitive restrictions or limitations placed on your current visa.
• You must, if over the age of 18, be willing to declare your respect of Australian values and adhere to Australian law.
• You must have health insurance (some exemptions apply for certain passport holders).

Call us today if you would like more information.

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457 Visa Holders Have Work Rights Too

Employers of 457 Visa holders must comply with both Australian workplace and immigration laws, and any workers who are unfairly dismissed or treated improperly have the right to enforce their rights.


A case brought to the Fair Work Commission by Mrs Maricar Virata, a citizen of the Philippines who had been working in Australia on a 457 Visa, is a clear reminder to all employers of their obligations when considering terminating employees on these visas.


Mrs Virata was employed to be the manager of the Halls Gap Motel. Her salary was $55,000 per annum plus superannuation. Her evidence was that she was expected to work from 7 AM until 1 AM, and she was expected to be on call outside those hours if needed, although this was disputed by the respondent.


She was accompanied in Australia by her de facto partner, and it transpired that he was expected to also work just as hard at the motel, and that her remuneration was to be split between the two of them. The Fair Work Commission found that 'on any view’ this arrangement was exploitative.


Ms Virata claimed that at some point she started to ask questions of her employer about her work conditions and that then, when she was on leave in the Philippines, she was sacked by email.


The respondent denied that she was terminated for the reasons claimed by her but because of two complaints by fellow employees, a complaint from a customer, and because of relationship issues between Ms Virata and her partner.


The commission found that none of the reasons put by the respondent by way of justification for its actions were valid. It also found that the respondent did not give plain and clear reasons to Ms Virata prior to making the decision to terminate her; nor was  she given an opportunity to address any of the complaints which been made about her.


Ms Virata had not been given any proper warnings about how her performance was perceived by the respondent and because she was terminated by email once the complaints were put, she did not have an opportunity to respond to them with a support person present.


The commission described the respondent’s processes as being “inappropriate and unfair” and found Ms Virata was entitled to compensation for unfair dismissal.


Another factor taken into account by the commission was that because Ms Virata was on a 457 visa, it would be expected that the consequences of her being terminated were even more serious than might usually otherwise be the situation.


457 Visa holders need to be aware that there are employers who will try and take advantage of their vulnerable situation and terminate their employment without regard to their legal rights. Any worker who believes they have had their rights infringed should seek immediate legal assistance.

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Use of Labour Agreements – 457 Visas

Standard 457 applications involve the sponsoring employer nominating an occupation contained on a list known as the Consolidated Skills Occupation List (CSOL).

It sometimes occurs that a sponsor wishes to nominate an occupation which is not listed on the CSOL, in which case the standard 457 programme is not appropriate.

In situations such as this, the business may wish to give consideration to applying for 457 visas under what is known as a Labour Agreement. These agreements can be utilised in respect of skilled and semi skilled positions if it can be shown that there is a clear lack of available employees in the local labour market. For example, many abattoirs bring meat workers into Australia under Labour Agreements as there is a big shortage of people with the necessary skills to properly bone and slice meat.

The starting point in applying for approval of a Labour Agreement is to be able to demonstrate that there is a skills shortage in the relevant industry. It is also necessary to show what efforts have been taken to obtain suitably qualified persons and what training programs the employer has in place should such persons be found. It is also often necessary to enlist the support of peak body groups or unions where appropriate.

In the past there has been some reluctance on the part of employers to seek to enter into Labour Agreements – probably largely due to the perception that negotiating with a government department is a difficult thing to do. While there may be some truth in that, the department does make it clear that it is open to consider applications, and usually a well-documented case can be finalised within 80 days and even sooner, if urgent.

Nevett Ford lawyers has experience with preparation of labour agreements and would be happy to assist employers who may wish to investigate this option.

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Subclass 457 Visa - Training Benchmark Requirements

As a Subclass 457 Employer Sponsor, the business must meet prescribed training benchmarks. 


The Migration Regulations require that the business must provide clear evidence that there has been, and continues to be, adequate provision for business related training for existing employees (Australian citizens and Australian permanent residents).  This training requirement must be met for at least three (3) years from the date of sponsorship approval, depending on the term of your sponsorship approval (and on the basis that the business continues to employ a subclass 457 visa holder). This policy reflects the government’s intention to ensure that the employment of skilled overseas workers will not prejudice any commitment and investment by the business in providing adequate training to employees who are Australian citizen or permanent residents.

 

TRAINING BENCHMARK REQUIREMENTS

Employers wishing to sponsor under the subclass 457 visa program must demonstrate their contribution and commitment to the training of employees who are Australian citizens and Australian permanent residents is related to the purpose of the business.

 

If your Business Has Been Trading For 12 Months or More

The Sponsor must provide evidence of meeting one of the following training benchmarks:

Ø  Training expenditure to the level of 1% of its payroll of Australian employees for the most recent financial year, OR failing to meet this requirement

Ø  Pay 2% of the payroll to an industry training fund,

 

and a commitment, by the business, to maintain expenditure in each fiscal year, to that level, for at least three (3) years, depending on the term of approval of your business sponsorship.

 

HOW THE BUSINESS CAN PROVIDE EVIDENCE

Expenditure that can count towards this benchmark relating to employees who are Australian citizens and Australian permanent residents includes:

 

Ø  Receipts for a formal course of study for employees or for TAFE or University students attending training in the workplace, as part of the organisational training strategy

Ø  Funding a scholarship in a formal course of study approved under the Australian Qualifications Framework or, for TAFE or University students, as part of the organisational training strategy

Ø  Employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business (please provide a copy of Apprenticeship Agreement)

Ø  Employment of a person who trains the business’ Australian employees who are Australian citizens and Australian permanent residents as a key part of their job (please provide evidence of Trainer’s qualifications)

Ø  Evidence of payment of external providers to deliver training for Australian employees

Ø  On-the-job training that is structured with a timeframe and clearly identified increase in the skills at each stage, and demonstrating:

v  the learning outcomes of the employee at each stage;

v  how the progress of the employee will be monitored and assessed;

v  how the program will provide additional and enhanced skills;

v  the use of qualified trainers to develop the program and set assessments; and

v  the number of people participating and their skill/occupation.

Nevett Ford Lawyers Melbourne can provide advice and assistance with all visa types, including the Subclass 457 visa.

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New Skilled Occupation List (SOL) released for 2016 / 17

The Department of Immigration & Border Protection (DIBP) has announced the New Skilled Occupation List (SOL) for subclass 485, 189 and 489 (family sponsored) visa applications. 

They have also released the Consolidated Sponsored Occupation List (CSOL) which is used for subclass 457, 186 and 190 applications.

The following occupations have been removed from the SOL - Petroleum and Mining Engineer, Metallurgist, Mining Engineer, Dental Hygienist, Dental Prosthetist, Dental Technician, Dental Therapist, Environmental Health Officer, Occupation Health and Safety Advisor. 

The occupations of Orthotist or Prosthetist and Audiologist have been added to the SOL.

There have not been any exclusions from the combined lists that make up the COSL and so no changes to the subclass 457 and 186 eligibilities.

The skilled list that will be used from RSMS / 187 (direct entry) applications from 1 July 2016 has not yet been released.

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Changes introduced to 457 visa

Non–discriminatory recruitment practices


The migration regulations have been amended so that sponsors must declare that they will not engage in discriminatory recruitment practices and also comply with a new obligation not to engage in discriminatory recruitment practices. According to the Department of Immigration “The new obligation seeks to address a community concern that some employers may be relying on the 457 visa programme to employ foreign workers without having regard to the availability of local labour.”


Sponsors should keep a record to demonstrate how subclass 457 visa holders were recruited and that this process did not discriminate based on citizenship or visa status.


Simplification of English Language Exemptions

Subclass 457 visa applicants will be exempt from the English language testing requirements if they have already met the same (or better) English language requirements to gain an occupational license or registration. Where registration and licencing authorities impose and assess English language requirements there is now no requirement for the Department to require the same or equivalent evidence via specified test results.

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Utilising 457 visas for self sponsorship

The use of the SUBCLASS 457 program to 'self sponsor' has effectively been closed by the addition in the 21 November 2015 update to immigration policy:

"Position created to secure a migration outcome"  

Overview (from Immigration policy)

The intent of the 457 program is to enable Australian businesses to temporarily fill short term skill shortages with overseas workers when they cannot find a suitably qualified or experienced Australian citizen or permanent resident to fill the position. The program is not intended to be used for non-citizens to establish a business in Australia and self-sponsor themselves; there are other visa pathways available for such purposes.

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Business groups push for reforms to 457 visa

Business groups push for reforms to 457 visa

The campaign for reforms in the 457 visas are once again reignited by business groups in Australia, declaring that it is high time that ”misinformation” regarding the scheme that benefits skilled foreign workers be dispelled.


It is most likely that this move is just going to spark tensions with Australian unions due to the 457 visa for temporary skilled migrants, however, business groups are adamant in lining up to say that the government should get rid of Labor-era labour market testing arrangements that are at present in the scheme.




A letter has been sent to the Productivity Commission from the Australian Chamber of Commerce and Industry (ACCI) stating that it is better if the labour market testing is abolished. On the other hand, the Australian Mines and Metals Association (AMMA) is warning that this requirement is just going to add red tape to the process.




This comes as a number of employer groups are preparing for a different review of the salary threshold for occupations which can be filled by workers who are holding 457 visas, in the newest inquiry that is probably going to spark controversy over the skilled migration visa scheme.




The Australian Chamber of Commerce and Industry has foreshadowed the argument against the increase in the income threshold for 457 skilled worker visas that are beyond inflation and is arguing that employers located in regional areas should have the capabilities to hire skilled foreign workers on a salary that is at a discount to the threshold, so long as this was in agreement to the market rates of Australia for the people in that specific regional area.






Ms Jenny Lambert, the employment, education, and training director of ACCI, stated that there seems to be ”misinformation” that foreign workers are taking jobs away from Australians.


”That is the wrong basis to move forward,” Ms Lambert said yesterday.
It is by the end of April that the report from the review of the Temporary Skilled Migration Income Threshold is expected to be submitted.






The Australian government agreed to bring forward the review of the Temporary Skilled Migration Income Threshold – which is currently set at fifty three thousand nine hundred – under a deal with Labor to end the wrangling over the China and Australia free trade pact, otherwise known as ChAFTA.






The review is not just going to look at the appropriate level that would be most suited for the threshold, it is also going to look at the roles of indexation as well as regional concessions for the threshold.


During the debate over ChAFTA, it was insisted by Labor that the threshold be increased to fifty seven thousand dollars. However, this push was dropped after the revelation that this kind of pricing would exclude some rural areas out of the scheme should this push through.
Ms Lambert said that the threshold should hold at its present level though there were still good points of argument that were raised for the sake of indexation and inflation.






For regional areas however, there was an argument that a discount be made because there is a difference between regional and metropolitan labour markets.


”The higher you lift the threshold the less businesses and positions would be eligible to have someone come in on a 457,” Ms Lambert stated. ”And that creates real economic problems not just for the business who can not find a skilled worker, but for the regional community who may not have the services available to them because the skilled worker is not available at the price that the region can afford.”




Ms Lambert also stressed that employers should not be able to pay foreign members of their staff less than what equivalent local workers are going to be paid in that region.
Areas hit by skills shortages at that moment, areas such as in the Northern Territory, can ask for something that is called a ”designated area migration agreement.”




Employers can seek concessions of up to ten per cent that is below the threshold under the designated area migrated agreement, so long as the cost of living in that area is lower compared to the national average, and that the foreign workers there are being paid the same as Australians.






Ms Lambert however, said that businesses were not actually guaranteed there would be such agreements to cover them in their areas.






In the mean time, ACCI has made a submission to another review into migration being conducted by the Productivity Commission, saying that it does not agree with a draft finding in support of labour market testing as the testing is the same as ”asking employers to walk through wet cement.”


Mr Scott Marklamb, the executive director of AMMA’s policy and public affairs, said that while there are some highly skilled occupations that were exempt from doing the testing, the ”resource employers support the abolition of this needless and burdensome requirement.”
It was stated by a spokesman for the Business Council of Australia that it consistently called for the elimination of the labour market testing.


SOURCE: The Australian (newspaper)

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Self Sponsorship for 457 Visas

Changes have been made to the Australian immigration policy document (known as the Policy Advice Manual (PAM)) for 457 nominations which means that self-sponsorship is now very difficult. The changes are in relation to the "genuine position" requirement for the nomination. As a result, the nomination would be refused on the basis that the position has been created just to facilitate a visa application.

 

Immigration has set out the following "risk factors" which could indicate the position is not genuine

• Visa applicant is a director or owner of the sponsoring business;
• Visa applicant is a relative or personal associate of an officer of the sponsoring business;

Immigration will wish to see an ASIC historical extract with the application - this would give information on the company owners and directors, and so assist in establishing whether the visa applicant is associated with a company officer. Sponsors must also declare who the company officers and shareholders are in the application for sponsorship approval.

The policy document specifically mentions that the application will be scrutinised if an overseas business is being used to "self-sponsor" a business owner to establish a branch in Australia. The stated reason is to prevent the 457 program from being used to 'circumvent' the Business Innovation and Investment (Subclass 188) program.

  

Based on these changes, "self-sponsorship" is not recommended. 


Nevett Ford Lawyers can assist with advice.  Please contact us if you have any questions or queries.

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