Transcript SENIOR INTERNATIONAL SECONDMENTS AND PROBLEMS FOR …

SENIOR INTERNATIONAL
SECONDMENTS AND
PROBLEMS FOR WORKERS,
EMPLOYERS AND
GOVERNMENT AGENCIES:
THE AUSTRALIAN
PERSPECTIVE
SESSION 7 MIGRANT LABOUR ISSUES
MARIA JOCKEL
AUSTRALIA
24-25 May 2013
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Australia’s Immigration Laws
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The most complex in the world
Consists of 3,000 pages of law overlaid by in excess of
16,000 pages of policy guidelines
There are 140 temporary and/or permanent residency
visas
Both the law and the policy guidelines change constantly
DIAC receives over 13,000 visa applications each day world
wide
DIAC is budgeted to raise in excess of $1.6 billion from
visa application fees in the current financial year
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457 Visa Program statistics
Subclass 457 visa holders in Australia as at 31 March 2003 - 2012
180
160
140
120
100
80
60
40
20
0
Persons ('000)
2003 2004 2005 2006 2007 2008 2009 2010 2011 2012
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Applying for a 457 visa
 Overseas personnel can be sponsored on a
temporary basis for up to 4 years
 Aim is to provide business with streamlined
arrangements to enable the quick transfer of
key personnel
 Backed by robust monitoring and enforcement
measures to ensure integrity of the program
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Overview
 Australia’s 457 Temporary Work (Skilled) Visa
Program
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Addresses labour shortages in specified skilled
occupations on Consolidated Sponsored Occupations
List (CSOL)
Business must train its Australian staff and meet
training benchmark requirements
There is an emphasis on employing local labour and
meeting Australia’s industrial relations and
employment standards
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Reforms to commence 1 July 2013
These include:
 Greater emphasis on employing local labour
 Enhancing the training benchmark requirements
 Enabling more ready refusal of 457 nomination
applications
 Removing English language exemptions for certain
positions
 Enhancing monitoring and enforcement powers to
ensure overseas workers are not used to undercut
local workers and employment standards
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457 visa holders can:
 Work in Australia for between one day and
4 years
 Bring eligible family members
 Travel to and from Australia
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Application Process
 457 visas have a 3 stage assessment process:
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Step 1: Employer applies to become an approved
sponsor
Step 2: Employer nominates the applicant in the
nominated position
Step 3: Nominated applicant applies for visa
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Sponsorship application
 The employer must demonstrate that:
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It is of good standing
It meets the training benchmark requirements
It has a strong record of, or commitment to,
employing local labour
There is no adverse information relating to the
company or a person associated with the
company
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Training Benchmarks
 2 options for Australian employers to
demonstrate a commitment to training Australian
employees:
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Option A: Payment of 2% of total payroll to an
industry training fund each financial
year
Option B: Expenditure of 1% of total payroll on
training Australian employees each
financial year
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Nomination Application
 Company must lodge a nomination application
which includes:
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The ANZSCO occupation specified on the 457 list
Terms and conditions of employment that are no less
favourable to Australian employees
Remuneration at ‘Market Salary Rates’
Base salary above $51,400 income threshold
Skills requirement (qualifications/experience)
Details of the nominee
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Terms and conditions – Market Salary
Rates
• The sponsoring employer must provide the
nominated employee with the same:
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pay;
hours of work; and
leave entitlements
that an Australian would receive for
performing equivalent work in the same
position, at the same location
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Visa Application
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The person nominated to fill the position must:
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demonstrate they have skills and qualifications that match the
nominated vacancy;
Be offered employment at the market salary rate (which
cannot be less than the TSMIT);
Unless exempt, the nominee must demonstrate to have
achieved a score of 5 in each of the four components of the
IELTS test;
Where licensing/registration/membership is mandatory, must
have English proficiency to the standard required for
licensing/registration/membership; and
if necessary provide a skill assessment
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Visa application
Continued
 Can apply inside or outside Australia if
sponsored by Australian company
 Visa period of up to 4 years
 Restricted to work for sponsoring employer
(certain exceptions)
 Can include dependents in a combined
application or as subsequent entrants
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Visa application - Skills Assessment
 Whether a skill assessment is required
depends on:
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The nominated occupation;
The passport that the visa applicant holds;
Whether the occupation requires membership or
licensing;
ANZSCO provides guide as to appropriate
qualification/level of experience
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English Language Requirement
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5 in each of the 4 components of IELTS (or higher if
licensing is required) unless exempt.
Exemptions:
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Passport from Canada, NZ, Ireland, UK or US
Completed 5 consecutive years of full time study in a secondary full
time and/or tertiary education instruction where the instruction was
in English
Annual base salary is in excess of $92,000
Nominated in an occupation that is in ANZSCO Major
Groups 1, 2, 4, 5, 6, Sub-Major Group 31 or Unit Group
3993 (unless English language proficiency required for
registration, licence or membership)
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Public Interest Criteria
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Applicant
Applicant
Applicant
Applicant
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meets the character requirement
meets the security requirement
has no debt to the Commonwealth
meets the health requirement
Examination requirements will vary dependent on the
applicant’s risk level and whether their activities in
Australia are of special significance
Exclusion periods
Custody considerations for dependent children applying
for a 457 visa
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Rationale for these requirements?
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To stop exploitation of overseas workers
To prevent overseas workers being paid less than
Australians
To reduce the use of overseas workers to undermine
Australian working conditions
To ensure employers invest in training Australian staff
To allow greater flexibility and mobility for visa holders
To ensure overseas workers are skilled and have
adequate English
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Condition 8107
 Employee must only work in the occupation
for which they have been nominated
 New nomination required for:
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Change of occupation; and/or
Promotion or demotion on a permanent basis
 Expectation that a 457 employee will be
engaged full-time in Australia
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Condition 8107 – Leave provisions
 Expectation that a 457 employee will be
engaged full-time in Australia
 Leave without pay allowed in certain
circumstances with prior written approval
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Health Costs – Condition 8501
 457 Visa holders are required to have and
maintain private health insurance at own
expense for the life of visa
 Those with access to reciprocal health cover
must apply for it once they are in Australia
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457 Visa Compliance
 Standard business sponsors must comply with
Sponsorship Obligations
 Complex monitoring, compliance, sanctions
and enforcement provisions
 Central concept is maximizing voluntary
compliance
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Sponsorship Obligations
Standard Business Sponsors
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Cooperate with inspectors
Ensure equivalent terms and conditions
Pay return travel costs when requested
Pay the Commonwealth to locate and remove
Keep certain records
Provide requested information to DIAC
Notify DIAC when certain events occur
Employ 457 visa holder in the approved occupation
Not to recover certain costs from 457 visa holder
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Powers of Inspectors
 Power for inspector to enter place of business or
other place without force.
 Where inspector has cause to believe there is
information, documents or any other thing
relevant to the purpose for which the powers are
being exercised.
 Inspect any work, material, machinery,
appliance, article or facility.
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Powers of Inspectors (Cont.)
 Interview any person.
 Require person who has custody of, or access to,
a document or thing, relevant to the inspection,
to produce the document to inspector within
specified period.
 Require a person to tell inspector who has
custody of document or thing.
 At a specified place within a specified period (not
less than 7 days).
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Pay travel costs from Australia
 Must pay the travel costs of the sponsored
persons, including internal travel.
 Costs are for economy class airfares or
equivalent.
 Costs are to be paid within 30 days of
receiving request by either visa holder or the
Department.
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Pay costs to the Commonwealth
 Sponsor must pay costs incurred by the
Commonwealth in locating and/or removing
the sponsored persons from Australia:
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If the Minister has requested the payment by
written notice.
These costs will be capped at $10,000 (less any
amount paid under travel costs obligation).
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To keep certain records
 Sponsor must keep records of its compliance
with the other obligations:
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All records must be in reproducible and auditable
format; and
A list of records that must be kept is extensive.
Obligation to keep records is for 5 years.
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To provide certain information and records
to the Department
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Sponsor must supply records and information to the
Department relevant to determining whether:
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Sponsorship obligations complied with.
Commonwealth, State or Territory laws breached.
Other circumstances (past or present) in which the
Minister may take administrative action.
 On request and in the manner and timeframe
requested by the Minister.
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To provide information to the Department
when certain event occurs
 Sponsor must provide certain information to
the Department when certain events occur:
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Information must be provided by post or
electronic mail, to specified address and within
certain timeframes of event occurring.
Extensive lists of information, events and time
periods are specified.
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To ensure the sponsored person works in
the approved occupation
 Sponsor must ensure that primary sponsored
person does not work in an occupation other
than the occupation most recently approved:
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New nomination required in respect of new
occupation; and
No independent contractors, unless exempt
occupation.
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Sponsors must not seek to recover certain
costs
 Sponsor must not recover, or seek to recover,
all or part of the costs (including migration
agent costs);
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That relate to recruitment of the primary
sponsored person; and
Associated with becoming or being a sponsor or
former approved sponsor.
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Obligation Not to recover certain costs
from Sponsored Person
Examples of costs that should not be recovered include:
 Recruitment agent fees
 Migration agent fees
 Costs associated with recruitment including:
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Recruitment agencies
Migration agencies
Costs of job advertising
Salaries of recruitment or human resources staff
Training of new staff
Responding to queries from prospective candidates
Travel costs to interview and/or meet the applicant either overseas or
in Australia
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Employer Compliance Model
Criminal
Sanctions
Tools to sanction noncompliance
Tools to deter noncompliance
Escalation
Civil
Penalties
Infringement
Notices
Tools to encourage
voluntary compliance
Warning Notices
Tools to enable
voluntary compliance
Targeted Employer Awareness
Visits
General Employer Awareness
Campaign
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DIAC Compliance Model (Cont.)
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Significant monitoring, enforcement and sanctions
powers
Targeted risk based monitoring, compliance and
enforcement operations
Approach includes education, warnings, infringements,
administrative penalties, and civil and criminal
sanctions
Heavy reliance on third party information, information
sharing and collaboration across Commonwealth, State
and Territory government agencies
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457 Sponsorship Monitoring
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Sponsors are monitored by DIAC to ensure compliance
with obligations in relation to any sponsored persons
(including any sponsored family members)
Sponsors are required to cooperate fully with DIAC
including by providing monitoring reports as required
Comprehensive risk-based auditing
Alignment of monitoring and compliance activities
Unannounced site visits for high risk Sponsors
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Examples of Breaches of 457 obligations
 The Sponsor is found to have paid below
salary as approved in Nomination Application
 Sponsored persons not working in nominated
occupation (eg a less skilled position)
 There is a material change in circumstances
that affects the Sponsor’s capacity to honour
their obligations (restructuring, change of
business etc)
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Consequences of Breaching the obligations
 This can include:
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Imposition of a 3 or 5 year ban on further
Applications for approval as a Sponsor
Former Sanctioned Sponsor, who was ever the
subject of a bar and/or the subject of cancellation
action may suffer adverse consequences in respect of
subsequent applications, including in respect of other
visa categories, other employer sponsored visas
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Imposing Sanctions
 Under certain prescribed circumstances action
may be taken against the Sponsor to:
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Cancel the approval as a business sponsor
Bar further Sponsorship or nomination
applications being made or being approved or
Cancel the 457 visas of any sponsored persons
including members of the family unit
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Framework for penalties
 4-tiered approach:
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Administrative (Cancel/Bar Sponsorship).
Infringements (Fines).
Civil Penalties (Court imposed, for example
Federal Court of Australia, Magistrates’ Court
etc).
Criminal Sanctions
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Framework for penalties – civil penalties
 Failing to satisfy 457 visa sponsorship
obligations
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For an individual: 60 penalty units ($6,600).
For a Body Corporate: 300 penalty units
($33,000).
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Framework for penalties – civil penalties
(cont.)
 Non compliance with an Inspector:
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For an individual: 60 penalty units (currently
($6,600).
For a Body Corporate: 300 penalty units
(currently $33,000).
 Above penalty is for each failure.
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Infringement notice fines
 For the 9 month period to 30 March 2013
there were 56 infringement notices issued
 Total $230,000 in fines
 Average fine was $4,000
 Highest single fine was $9,900
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Criminal Sanctions
 There are extensive provisions in the migration
legislation which enable the Department to
prosecute any person who has aided or abetted
(including that person himself or herself) in
entering into Australia or with an application for a
visa or a further visa, which would permit the
person (including that person himself or herself)
to remain in Australia.
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Improved information sharing
 Commonwealth, State or Territory Government
agencies, including:
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Taxation.
Industrial relations.
Workplace safety.
Fair trading.
Registration & licensing
Law enforcement and others.
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The role of other agencies
 Will generally investigate matters within their
jurisdiction, for example:
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If Fair Work Act issue, the Fair Work Ombudsman will
action.
If nominated salary not met, the Department will
action.
Workplace Safety issue, relevant agency will action.
 ATO will share information as to levels of
remuneration etc.
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Penalties for employing foreign workers in
breach of work rights
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There are strict civil liability penalty provisions which apply if a person
allows a foreign national to work in breach of their work rights
Statutory Defences
These include:
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A person took reasonable steps at reasonable times to verify visa
status/work rights of foreign national by for example:
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Checking VEVO shortly prior to allowing foreign national to work and
thereafter to see if person is still allowed to work
Creating a contractual obligation for others to verify work rights’ entitlements
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Penalties for employing foreign workers in
breach of work rights (Cont.)
Penalties
 For an individual: $9,900
 For body corporate: $49,500
 The Civil Penalty provisions may be enforced
through applications for civil penalty orders
through the courts in the same way that
proceedings for breaching sponsorship
obligations can now be prosecuted
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Penalties for employing foreign workers in
breach of work rights (Cont.)
 Enforcement powers include:
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Notice to Produce Power
Waiver of the rule against Self Incrimination
Search Warrant
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Checking Work Rights?
 Generally only Australian citizens and New
Zealand citizens (who have entered Australia
on a valid passport) have unrestricted work
rights. All other persons in Australia need to
have visas which enable them to work lawfully
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Fair Work Ombudsman
Prosecutions
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Fair Work Ombudsman v Kentwood Industries Pty Ltd
[2011] FCA 579:
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Western Australian construction company recruited
tradesmen from China and paid them less than $3 an
hour
Brought before Federal Court in Perth by FWO
Company fined $123,000;
Managing Director fined $24,600; and
Back-pay to the workers of $242,000 (plus $65,000
interest)
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Fair Work Ombudsman
Prosecutions continued
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$288,000 against Adelaide cleaning company Saya Pty Ltd, which paid 2
workers - an 18-year-old female and a newly-arrived migrant from Iraq - less
than $4000;
$150,000 against the former operators of two 7-Eleven stores in Melbourne
and Geelong for deliberately underpaying 6 international students almost
$90,000;
$183,400 against Melbourne restaurant operator Penang Kayu Nasi Kander
Pty Ltd and company co-owner Poh Meng Hong for underpaying a Malaysian
chef more than $75,000;
$85,750 against WA construction company Hanssen Pty Ltd for breaching the
workplace rights of 15 457 visa holders from the Philippines and Ireland; and
$43,425 against two companies and a director involved with Perth’s Shimizu
Japanese restaurants for underpaying dozens of staff, including young foreign
workers with limited English
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Employment and Immigration Law
1. Recruitment
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Pre-Contract Negotiation
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Clauses to assist to manage sponsorship
obligations
Health costs
Reimbursement of certain costs
Market salary rates
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Employment and Immigration Law (Cont.)
2. Engagement
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Report changes in duties
Ensure work is in the approved nominated occupation
Ensure equivalent terms and conditions of employment
Compliance with Condition 8107
Contractors and on-hire agencies
Changing employer
Mergers and acquisitions
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Employment and Immigration Law (Cont.)
Termination of employment
 Long service leave
 Avoiding unfair contract litigation
 Notify to DIAC within 10 working days
 Obligation to pay return travel costs
 Cessation sponsorship obligations
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Employment contract
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Subject to grant of 457 visa
Term of employment (not exceeding 4 years)
Termination procedure
Base Salary: gross annual salary excluding all benefits,
allowances and superannuation
Guaranteed Annual Earnings: gross annual salary plus
all benefits and allowances (including LAFHA)
excluding superannuation
Include clauses enforcing the Sponsorship Obligations
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Conclusion
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While the 457 visa allows for streamlined
arrangements to enable the quick transfer of key
personnel to meet targeted skilled labour force
shortages
It is backed up by rebuffed monitoring, enforcement
and sanction powers which include administrative,
infringement notices, civil penalty orders and in serious
cases criminal sanctions
Getting the right advice at the right time is vital to
meeting international secondment needs
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Key Contacts
Maria Jockel
Partner
Accredited Immigration Law Specialist
Leader of National Migration Law Group
Holding Redlich
Level 8, 555 Bourke Street
Melbourne Victoria Australia 3000
MARN 9802742.
T +61 3 9321 9735
E [email protected]
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