Transcription
Visa Subclass 457Integrity ReviewFinal ReportOctober 2008
Table of ContentsOVERVIEW OF THIS REPORT . 4Note on nomenclature .4Note on references.4List of abbreviations .5SECTION 1 - EXECUTIVE SUMMARY . 6SECTION 2 - LIST OF RECOMMENDATIONS . 82.1Introduction.82.2Recommendations.8SECTION 3 - THE VISA SUBCLASS 457 INTEGRITY REVIEW . 173.13.11The Integrity Review .17Secretariat .183.2The temporary skilled migration reform agenda .183.3Work program .183.31Acknowledgements.183.32Disclaimer .19SECTION 4 - VISA SUBCLASS 457 . 204.14.114.2Managing the Subclass 457 visa program.20Subclass 457 visa processing process .20Subclass 457 visa grants.21SECTION 5 - THE INTEGRITY OF THE SUBCLASS 457 VISA - OVERVIEW . 23SECTION 6 - WAGES AND RELATED ISSUES. 256.1Introduction.256.2Minimum Salary Level.256.216.3Market rates .28The skills shortage .326.31Labour shortages.336.32Skills assessment.346.33Labour market testing .386.34The training requirement .406.4Labour Agreements .436.5Regional concessions.472
SECTION 7 - INTEGRITY AND EXPLOITATION. 497.1Introduction.497.2The pathway to permanent residency .497.3English language requirement .527.4Occupational Health and Safety .567.5Secondary visa holders.587.6The role of ‘agents’ .597.61Migration agents .607.62On-hire agencies .637.7Mobility.667.8Transparency .69SECTION 8 - VISA PROCESSING, MONITORING AND COMPLIANCE . 708.1Introduction.708.2Sponsor obligations.708.3Accreditation .748.4Complexity of the legislation and unintended consequences.768.5Information and support .788.6Departmental responsibilities and resources.808.618.78.71DIAC outreach officers .80Role of other agencies.83Jurisdiction of Tribunals .83SECTION 9 - GLOBAL ISSUES . 859.1Introduction.859.2Availability of data.859.219.39.319.4Occupational Classification - ASCO and ANZSCO.86One visa or two?.87Visa substitution.88Assistance for migrants .909.41Funding for English studies.919.42Availability of housing.92ATTACHMENT A - REFERENCES . 94ATTACHMENT B - MINISTER’S MEDIA RELEASE . 96ATTACHMENT C - SUPPLEMENTARY INFORMATION . 98C1IELTS test bands.98C2English Language Training Programs.99C3Visa Condition 8107.1003
Overview of this reportThis paper includes the following sections: Executive summaryA List of RecommendationsThe Visa Subclass 457 Integrity ReviewVisa Subclass 457The Integrity of the Subclass 457 Visa - OverviewWages and related issuesIntegrity and ExploitationVisa Processing, Monitoring and ComplianceGlobal issues.The paper includes the following attachments: a list of the references used in the compilation of this reportthe text of the media release from the Minister for Immigration and Citizenshipannouncing the appointment of industrial relations commissioner Ms BarbaraDeegan to examine the integrity of the temporary skilled migration programsupplementary information on aspects of the Subclass 457 visa programNote on nomenclatureWhen the phrase ‘the department’ is used in this report without further attribution it shouldbe read as ‘the Department of Immigration and Citizenship (DIAC)’.The term ‘Subclass 457 visa holder’ applies only to primary visa holders unless otherwisenoted.References to submissions in this report refer both to written submissions and conversationswith stakeholders.Note on referencesTo avoid repetition, references in this report are generally concise. Full details on eachreference may be found in the references list in Attachment A.4
List of n Chamber of Commerce and IndustryAssociation of Consulting Engineers AustraliaAustralian Computer SocietyAustralian Council of Trade UnionsAustralian Industry GroupAdult Migrant English ProgramAustralian Meat Industry CouncilAustralian Manufacturing Workers UnionAustralian and New Zealand Standard Classification of OccupationsAustralian Public ServiceAustralian Qualifications FrameworkAustralian Standard Classification of OccupationsAustralian Taxation OfficeConstruction, Forestry, Mining and Energy UnionCommonwealth / State Working Party on Skilled MigrationDepartment of Education, Employment and Workplace RelationsDepartment of Immigration and CitizenshipElectrical and Communications AssociationEmployer Nomination SchemeVisa Subclass 457 External Reference GroupEnglish as a Second Language - New ArrivalsFederation of Ethnic Communities’ Councils of AustraliaFair Work AustraliaGeneral Skilled MigrationInformation and Communications TechnologyInternational English Language Testing SystemIndustry Outreach OfficerLiquor, Hospitality and Miscellaneous UnionLabour Market TestingMigration Agents Registration AuthorityMinerals Council of AustraliaMigration Institute of AustraliaMemorandum of UnderstandingMigration Review TribunalMinimum Salary LevelNational Centre for Social and Economic ModellingNew Zealand Standard Classification of OccupationsOccupational Health and SafetyQueensland Resources CouncilRegional Certifying BodyRecruitment and Consulting Services AssociationRegistered Employment AuthorityRegional Outreach OfficerRegional Sponsored Migration SchemeVictorian Automobile Chamber of CommerceChamber of Commerce and Industry WAWorkplace English Language and Literacy Program5
Section 1 - Executive summaryThis is the final report of the Visa Subclass 457 Integrity Review (the Review) conducted byMs Barbara Deegan, an industrial relations expert appointed by the Deputy Prime Ministerand the Minister for Immigration and Citizenship. This paper summarises the issues raisedunder its Terms of Reference during the course of the Review and provides a series ofrecommendations to improve the integrity and operation of the temporary skilled migration(Subclass 457 visa) program (the program) for the consideration of Government.The Review released a series of three issues papers to prompt discussion and seeksubmissions on integrity issues relevant to the program.The first issues paper was on Labour Agreements and Minimum Salary Levels. It wasreleased in July 2008. The second issues paper was on the English Language Requirementand Occupational Health and Safety. It was released in August 2008. The third issues paperwas on Integrity and Exploitation and it was released in September 2008.This report has been compiled from consideration of the submissions received in response tothe issues papers and feedback received during informal consultation carried out betweenstakeholders and Ms Deegan following establishment of the Review. The Review has alsoconsulted with the Skilled Migration Consultative Panel appointed by the Minister forImmigration and Citizenship during the course of its consideration of the Terms ofReference.Stakeholders have provided the Review with numerous examples of the exploitation ofworkers on Subclass 457 visas. The Australian Human Rights Commission ‘has receivedcomplaints from 457 Visa Holders alleging discrimination in the workplace. The types ofissues raised by people making complaints include: not being paid overtimeworking longer hours or days than non-visa employeeslimited access to sick leave and dismissal if the Visa Holder takes sick leavedismissal because the Visa Holder is pregnantdismissal for taking leave to care for a sick spouse or childovercharges on rent or other expenses organised by the employersexual harassment’.It is worth noting the strong support for the continued integrity of the program that has beenevident over the course of the Review. The Motor Trades Association of Australia aretypical when they note their ‘in-principle support for strengthening the integrity of theSubclass 457 visa procedures, while ensuring smooth access by employers’, they go on tosupport ‘the principles of fairness that underpin the Subclass 457 visa regime’. TheAustralian Council of Trade Unions (ACTU) ‘welcomes this review into the integrity ofAustralia’s Temporary Business Long Stay - Standard Business Sponsorship (Subclass 457)Visa (the 457 visa scheme). The current scheme fails to adequately protect the rights oftemporary overseas workers’.6
Support for the principles underlying the Subclass 457 visa is reflected in the QueenslandGovernment’s statement that ‘the support of the Queensland Government for the 457 visaprogram is contingent upon the clear understanding that it does not undermine Australianemployment opportunities, wages or working conditions’. Likewise the Minerals Council ofAustralia (MCA) ‘strongly support the need for the system to be operated with integrity sothat all parties have confidence that Australia remains internationally competitive infacilitating labour movement whilst at the same time safeguarding employment and trainingopportunities for Australian workers and protecting overseas workers from exploitation’.Similarly, the NSW Government ‘supports the Australian Government’s efforts to reform theemployer sponsored temporary migration program. These reforms should ensure theprogram is flexible and responsive to the needs of Australian employers, while respecting therights and dignity of employer sponsored migrants and ensuring transparency, accountabilityand integrity in the administration of the program’.The Review builds upon stakeholder input to earlier reviews of the temporary skilledmigration program, including the work of the Council of Australian Governments, the JointStanding Committee on Migration of 2007 and the External Reference Group (ERG) earlierin 2008 (see Attachment A for references).7
Section 2 - List of Recommendations2.1IntroductionThe Integrity Review of the Subclass 457 visa has generated considerable interest fromstakeholders across Australia. More than 150 submissions from interested parties have beenreceived, and consultations held with employers, peak industry bodies, unions, governmentagencies, visa holders and academics in all states and territories.The recommendations summarised below and discussed in more detail later in this report arethe result of a consideration of the wide range of views expressed during the consultativeprocess; they are designed to improve the integrity of the Subclass 457 visa program, therebyensuring it has ongoing public support.2.2RecommendationsRecommendationIt is recommended that so far as possible given their special circumstances, Subclass 457 visaholders have the same terms and conditions of employment as all other employees in theworkplace.RecommendationIt is recommended that the MSLs be progressively abolished as other mechanisms (such ascollective agreements or market rate determinations - see below) are introduced to replacethem.RecommendationIt is recommended that a ‘salary floor’ be introduced for workers on the Subclass 457 visa.The salary floor should be set by reference to an appropriate ABS-published wage rate basedupon average weekly full-time earnings.RecommendationIt is recommended that market rates of pay should be paid to all temporary visa holders withsalaries less than 100 000 per year (or the FWA exempted salary level if different). All suchrates should be provided for in industrial instruments (awards, agreements or determinations)enforceable by the Workplace Ombudsman or State equivalent.RecommendationIt is recommended that the federal tribunal with responsibility for employment conditionsshould determine the appropriate market rate to be applied if the matter is in dispute.8
RecommendationIt is recommended all sponsors be required to make payment of wages or salaries to visaholders by direct credit to an Australian bank in the name of the visa holder.RecommendationIt is recommended that sponsors of Subclass 457 visa holders be required to maintain incomeprotection insurance for those workers for the duration of their employment, unless analternative protection is provided for in a Labour Agreement.RecommendationIt is recommended that two new lists of skilled occupations for which temporary visas maybe granted are developed by DEEWR, in consultation with DIAC and industry parties. Onlyoccupations requiring genuine skill (professional, semi-professional and trades) should beincluded on the lists.RecommendationIt is recommended that consideration be given to requiring, where practicable, offshore skillstesting by a qualified workplace assessor employed by a Registered Training Organisationand acceptable to the Commonwealth for all occupations included on the standard list ofoccupations.RecommendationIt is recommended that where offshore skills assessment is not practicable each visaapplication be accompanied by a statutory declaration signed by the employer stating thatthey are satisfied that the applicant possesses the necessary skill to perform tasks of theoccupation to the Australian standard.RecommendationIt is recommended that applications for Subclass 457 visas be considered with reference tothe skilled migration lists recommended elsewhere in this report.RecommendationIt is recommended that an employer seeking to sponsor more than 20 workers from thestandard list of occupations (excepting those with salaries in excess of 100 000) should berequired to be a party to a Labour Agreement.RecommendationIt is recommended that DEEWR be requested to provide, after consultation with relevantindustry bodies and Government agencies (Skills Australia, industry training councils, forexample) a list of training options from which employers can choose in order to demonstratea meaningful and focussed commitment to training. The menu should be flexible and shouldcontain options capable of being monitored and enforced.9
RecommendationIt is recommended that Labour Agreements be utilised in the following situations: where mandated for particular industry sectors or groups (e.g. on-hire companies,meat industry)for occupations not included in the standard occupation lists to be compiled byDEEWR and DIACwhere an employer intends to sponsor more than 20 visa holders (in positions withsalaries of less than 100 000).RecommendationIt is recommended that appropriate resources be made available to DEEWR and DIAC toenable Labour Agreements to be concluded in a timely manner.RecommendationIt is recommended that the Government remove regional concessions from the Subclass 457visa program.RecommendationIt is recommended that no visa holder be permitted to remain in Australia for more than 8years in total on a Subclass 457 visa. The visa is to last no more than 8 years (e.g. two 4-yearvisas or four 2-year visas etc.). Temporary visa applicants must go offshore beforereapplying for a visa after the 8 year period.RecommendationIt is recommended that more comprehensive information on pathways to permanentresidency be provided on the DIAC website and such information should be designed toremove the perception that the Subclass 457 visa is a guarantee of permanency. Visaapplicants should be provided with as much official information as possible to counteractmisleading information supplied by agents or sponsors.RecommendationIt is recommended that the Subclass 457 visa be renamed the ‘Temporary Employment Visa’in all publicly available information to reinforce its temporary nature.RecommendationIt is recommended that the current procedures which give precedence to employernomination for permanent residency for visa holders be rebalanced to give greater weight tothe length of time worked by the visa holder for any Australian employer under thetemporary visa. It should not be necessary for Subclass 457 visa holders with a number ofyears of employment in Australia to apply offshore for permanent residency in circumstanceswhere the application is not supported by an employer.10
RecommendationIt is recommended that the current English language requirements attached to theSubclass 457 visa program be retained for all occupations included on the new standard listof occupations with the exception that applicants should also be found to have met theirrequirement should they achieve an average score of 4.5 without reference to the writtencomponent.RecommendationIt is recommended that the relevant instrument be amended to exempt from the Englishlanguage requirement those workers applying for visa renewal whose current visas weregranted before that requirement took effect.RecommendationIt is recommended that the current exemption from the English language requirement for visaholders earning salaries in excess of 77 850 be raised to 100 000 (or the FWA exemptedsalary level if different).RecommendationIt is recommended that variations to the English language requirement should only beavailable in exceptional circumstances by means of Labour Agreements containingappropriate safeguards.RecommendationIt is recommended that the numbers, location, occupation and industry of Subclass 457 visaholders be provided to relevant State and Territory OH&S authorities.RecommendationIt is recommended that the rights of Subclass 457 visa holders who are involved in safetycomplaints are properly protected and the necessary mechanisms put in place so any visaholder required for the purposes of a prosecution of a complaint is permitted to remain inAustralia for that purpose.RecommendationIt is recommended that secondary visa holders retain work rights but that any LabourAgreement providing for the migration of secondary visa holders should address the workrights of that group.RecommendationIt is recommended that dependents be allowed full working rights upon attaining working ageduring the currency of the primary visa, until the dependent attains the age of 21 years.Children aged 21 years and over should be regarded as independent, unless they are in fulltime study or have a medical condition that prohibits them from becoming independent.11
RecommendationIt is recommended that efforts be made to reach agreements with other governments designedto regulate the activities of offshore agents involved in finding employment, or obtainingvisas, for Subclass 457 visa applicants.RecommendationIt is recommended that employers be expressly prohibited from entering into anyarrangement for the purpose of obtaining money from a visa holder as a consequence of thevisa holder obtaining the employment and be prohibited from making any deduction from thewages of a visa holder for payment to any agent.RecommendationIt is recommended that there be enhanced scrutiny of the operations and conduct of migrationagents.RecommendationIt is recommended that the procedure for making complaints against migration agents beprovided to all prospective clients together with a schedule setting out the standard feesgenerally charged for particular services.RecommendationIt is recommended that all official documentation sent by DIAC to migration agents becopied to the clients of those agents.RecommendationIt is recommended that DIAC information be amended so that any reference to the role ofmigration agents should make it abundantly clear that while these agents are registeredpursuant to a legislative process, they are not government officials and no responsibility istaken for their actions or conduct.RecommendationIt is recommended that consideration be given to removing the requirement for legalpractitioners with practising certificates to be registered migration agents in order to provideimmigration assistance.RecommendationIt is recommended that there be clarification of the ability of staff of communityorganisations and similar bodies who are not registered migration agents to provide limitedimmigration information and assistance without breaching the terms of the legislation.If necessary, changes should be made to the legislation in order to allow these organisationsto assist visa holders, in particular.12
RecommendationIt is recommended that information be widely disseminated concerning the ability of DIACstaff to provide assistance with immigration procedures.RecommendationIt is recommended that Labour Agreements be retained as the only manner in which on-hirecompanies can sponsor under the Subclass 457 visa program.RecommendationIt is recommended that additional resources be directed to monitoring of visa holders fromhigh risk groups sponsored by on-hire companies.RecommendationIt is recommended that the Visa Condition 8107 be amended to make it clear thatSubclass 457 visa holders may cease work for one sponsor and find work with anotherapproved sponsor. Further, the ability to do so should be explained in the informationprovided to all visa applicants.RecommendationIt is recommended that visa holders be allowed up to 90 days to find a new sponsor unless itis apparent that there is no likelihood that this will occur and the visa holder is unable toprovide for him or herself (and dependents where relevant) during this period.RecommendationIt is recommended that Subclass 457 visa holders should be provided with assistance,including: website information on transferring to another approved employer information on how to find another sponsor, such as a list of approved sponsorsand how to have an employer approved as a sponsor access to Job Search Support from Job Network while seeking new employment.RecommendationIt is recommended that consideration be given to requesting Trades Recognition Australia toprovide a simple service for Subclass 457 visa holders to have their trade qualificationsassessed against Australian standards (this would also assist visa holders in applications forpermanent residence).RecommendationIt is recommended that while additional time should be allowed for Subclass 457 visa holdersto find new employment there should be no change to the current requirement that sponsorscontinue to pay wages for 28 days.13
RecommendationIt is recommended that the names of sponsors with 20 or more Subclass 457 visa holders bepublished on the DIAC website.RecommendationIt is recommended that the Government institute a levy from employers for eachSubclass 457 visa holder they sponsor. The levy is to be pro-rated across the term of the visaand collected through the tax system. Funds gathered through the levy are to be used to fundthe provision of services to visa holders and removal costs if required.RecommendationIt is recommended that the government provide Medicare coverage of public health costs toSubclass 457 visa holders and their dependents by means of the proposed employer levy.In the alternativeIt is recommended that it become a visa obligation for all Subclass 457 visa holders tomaintain public health cover for themselves and their dependents.RecommendationIt is recommended that if
The Visa Subclass 457 Integrity Review Visa Subclass 457 The Integrity of the Subclass 457 Visa - Overview Wages and related issues Integrity and Exploitation Visa Processing, Monitoring and Compliance Global issues. The paper includes the following attachments:
