New sanctions against charging for migration outcomes

On 30 November 2015, the Migration Amendment (Charging for a Migration Outcome) Act 2015 came into effect to make it unlawful for a person to ask for, offer, give or receive a benefit in return for a migration outcome in relation to certain skilled work visa programmes. These sanctions are not restricted to sponsors of 457 visa holders.

This Act was introduced in response to Recommendation 10.7 of the Independent Review into Integrity in the Subclass 457 Programme. Although there were existing compliance measures to ensure business sponsors were held accountable for a breach of their obligations towards 457 visa holders, the Department of Immigration and Border Protection (“DIBP”) was previously unable to take direct action in cases where payments for visa outcomes occurred. Explicit sanctions were required to address this conduct.

A new criminal and civil penalty framework has been introduced which allows sanctions to be imposed on sponsors and other third parties who engage in such conduct. Sanctions include:

  • up to two years imprisonment;
  • fines of up to $64,000 for an individual person and $324,000 for a body corporate; and
  • visa cancellation.

 

The introduction of these new sanctions send a clear message that payment for visa outcomes will not be tolerated. This new penalty regime is necessary to assist in maintaining and improving the integrity of the 457 visa programme and Australian workplace law.

Understanding Temporary Work Visas in Australia

In the last six months, there have been significant changes in obtaining short term visas for applicants seeking to work in Australia. It is a common misconception that the Subclass 457 is the only option for applicants working in Australia on a temporary basis.  Due to recent changes in Australian immigration law, the Subclass 400 visa may now be more appropriate for an applicant in certain circumstances.

Longer visa terms for the Subclass 400 Visa

The Temporary Work (Short Stay) visa (Subclass 400) is a short term work visa for highly specialized assignments of a fixed term.  The Subclass 400 visa does not require employer sponsorship and has far less onerous requirements than the longer term Subclass 457 Temporary Work (Skilled) visa.  As of 23 November 2014, it is now possible to apply for a Subclass 400 visa with a six month period of stay.  Previous regulations only allowed a maximum six-week stay, with up to three months in special circumstances.
 
In order to obtain a Subclass 400 visa that is valid for six months, a strong business case must be put forward.  Applicants requesting a stay period of more than three months will be required to provide evidence that their activities will not adversely impact Australian workers, including being remunerated in accordance with Australian wages and conditions.  The Department of Immigration and Border Protection (‘DIBP’) will consider the following evidence:

  1. Evidence about the nature, size, duration, and importance of a project to the local community and any potential impacts to the business/community should the project not be able to proceed, including employment opportunities for Australian workers;
  2. Evidence that specialist advice/expertise from overseas is required, which may include evidence from an employment agency of a shortage of similarly qualified persons in Australia;
  3. Whether there are contractual obligations relating to the installation/servicing of a piece of equipment;
  4. Evidence that the applicant’s proposed employer has tried unsuccessfully to hire an Australian to do the proposed work (for example, evidence of job search, training programs, letter of support from the relevant union);
  5. The number of Australians being employed on the project and/or by the business;
  6. Whether there is enough time available for an Australian to be trained to do the proposed work over a longer period; and
  7. The employment conditions of the applicant, including their salary arrangements and whether they are in accordance with local labour market requirements.

If it is likely that the assignment will extend beyond six months, a Subclass 457 visa should be requested at the outset.  In practice, six month visa terms are only granted in exceptional circumstances.  Furthermore, a second Subclass 400 visa for the same tasks and duties can be difficult to obtain out of concern that the assignment is in fact ongoing.  It will be looked on favourably if it is evident that the extension is required due to factors beyond the employer’s control.  However, a subsequent application will be more closely scrutinized, and the applicant’s previous travel to Australia will be examined.  Policy states that a total stay in Australia of more than six months in any twelve-month period may be considered to be “non-ongoing.”
 

Key Subclass 457 visa changes

The Temporary Work (Skilled) visa (Subclass 457) is the visa of choice when the Subclass 400 visa is not suitable for Australian work assignments.  On 18 March  2015, the Australian Government announced that it will support a majority of recommendations made by the Review Committee responsible for assessing the Integrity of the 457 Visa Programme, and implemented the following recommendations: 

  1. The English requirement has been amended from a minimum score in each band to an average score.  For example, in relation to the International English Language Testing System (“IELTS”), the 457 applicant now requires an average of 5 across the four competencies (or the equivalent for an alternative English language testing provider).
  2. The English exemption which required five years continuous study is now amended to five years cumulative study in an English speaking institution.
  3. The approval terms of Standard Business Sponsors has now increased from three years to five years for established business sponsors and one year to eighteen months for start up business sponsors.
  4. The timeframe for the sponsor to notify the Department of Immigration of notifiable events is now extended from 10 business days to 28 days after the event has occurred.
  5. The salary to obtain an exemption from demonstrating “market rate” has been reduced and is now aligned with the income level above which the top marginal tax rate is paid (currently at AUD 180,000).

Recommendations that require consultation with stakeholders may not come into force until 2016.  A key recommendation that is expected to be implemented is the replacement of the current training benchmark required of business sponsors with an annual training fund contribution based on each 457 visa holder sponsored, with the contributions scaled according to size of business.
 
Overall, these are positive changes that are intended to maintain the integrity of the 457 program and streamline the processes for trusted and low risk business sponsors.  By extending Subclass 400 visa terms and implementing changes that ease the administrative burden on both employers and applicants, there is certainly a trend towards providing more flexibility to all parties involved.

Unfair dismissal compensation: calculating the dollars and cents

The Full Bench decision in Brett Haigh v Bradken Resources Pty Ltd T/A Bradken [2014] FWCFB 236 has clarified how the Fair Work Commission (FWC) calculates compensation payable to persons that it finds were unfairly dismissed.

Where the FWC finds that a person’s dismissal was unfair it has the ability to award  reinstatement, re-employment or compensation.  Compensation is capped at the lesser of the employee’s earnings in the 26 weeks prior to dismissal, or 50% of the high income threshold (currently $129,300p.a).

The FWC can only order compensation if it decides that reinstatement is inappropriate.  Unsurprisingly, the FWC makes compensation orders more often that it orders reinstatement: in 2012-2013, reinstatement was ordered in only 14% of cases where the FWC determined that the person had been unfairly dismissed.  This is often because the FWC considers that there has been a loss in trust and confidence between the employer and former employee.

If the FWC makes an order for the payment of compensation, a number of factors must be considered. These are set out in section 392 of the Fair Work Act 2009 (Cth) (FW Act). However, as a practical matter, the following steps will generally be followed in reaching the amounts of compensation to be awarded (taking account of those facts to be considered under the FW Act :

1. Determine how much the person would have earned if they had not been dismissed (nb, all the circumstances are to be considered, including the reason why the dismissal was unfair);
2. Deduct the person’s actual earnings (that is, mitigation) since the dismissal;
3. Consider a deduction for “contingencies”. Contingencies are circumstances that might affect earnings during the period that an employee might have expected to work but for the dismissal;
4. Consider the impact of taxation  (nb, the FWC will normally determine a gross amount);
5. Consider reducing the sum if it would affect the business’ viability;
6. Consider reducing or increasing the sum based on the person’s length of service;
7. Consider a deduction if the person did not adequately mitigate their loss;
8. Consider a deduction for the person’s misconduct; and
9. Apply the compensation cap, if relevant.

Employers who find themselves unlucky enough to be on the wrong end of unfair dismissal proceedings should consider the above factors in responding to an employee’s claim. For example, an employer should be in a position to put on evidence about issues that may have affected the employee’s ongoing employment in any event. An employer should also seek information about an employee’s earnings after their dismissal as a matter of course. 

Subclass 457 Visa Reforms – Temporary Work Skilled Program

Effective 1 July 2013, a number of legislative changes have taken place in an effort to enhance the Subclass 457 Temporary Work Skilled Program.

While the foundations of the program remain unchanged with the changes representing a response to Australia’s economic conditions, there are a number of important amendments to note:

  • All applications, with very limited exceptions, are to be lodged electronically using the Department of Immigration and Citizenship’s (‘DIAC’) online lodgement facility. This change also applies to businesses located outside Australia seeking to sponsor staff under the program.
  • Businesses seeking to apply for Business Sponsorship Approval must now nominate the number of positions anticipated to be filled by sponsored employees. Justification in relation to this number must also be provided.
  • Existing business sponsors seeking to renew their approval must demonstrate that they have continued to meet the relevant training benchmarks during the term of their existing approval. Most business sponsors are approved for a term of three years.
  • The Temporary Skilled Migration Income Threshold (‘TSMIT’) has increased to $53,900. Sponsors must show that the position to be filled by the sponsored employee commands a base salary greater than this amount.
  • The market salary exemption has increased from $180,000 to $250,000. Sponsors are not required to demonstrate that they are paying ‘market rate’ for positions offering $250,000 per annum or more.
  • There are now stricter English language requirements in line with the English language thresholds for permanent employer sponsored visas such as the Subclass 186 Employer Nomination Scheme Visa. Exemptions applying to certain professional positions have been removed, though employees nominated with a salary of $96,400 or more will be exempt. Further exemptions are available to nationals of English speaking countries or employees with the requisite level and length of study in English. 
  • There are less visa terms available to sponsored employees sponsored by ‘start-up’ businesses. Twelve months will be the maximum in such circumstances, as oppose to the customary four years.
  • Sponsored employees on the Subclass 457 visa must commence work within 90 days of their arrival in Australia.
  • There is now also  an additional sponsorship obligation requiring sponsors to continue to meet their training benchmarks on an annual basis for the term of a sponsorship approval.
  • Application fees for additional charges for accompanying family members have also been increased and restructured as follows:

 Application Type (Subclass 457)

 DIAC Charge

 457 Nomination Application Fee (accompanying fee for every primary visa application or for sponsorship transfer)

 $330

 457 Visa Application – Primary Applicant (Employee)

 $900

 457 Visa Application – Dependant aged 18 and over

 $900 (per additional dependant)

 457 Visa Application – Dependant aged under 18

$225 (per additional dependant)

Subclass 186 Employer Nomination Scheme Application Fee Increases

The following increases have also been imposed in relation to the Subclass 186 visa:

Application Type (Subclass 457)

DIAC Charge

186 Nomination Application Fee (accompanying fee for every visa application)

$540*

186 Visa Application – Primary Applicant (Employee)

$3060*

186 Visa Application – Dependant aged 18 and over                                                                                               

$1530 (per additional dependant)

186 Visa Application – Dependant aged under 18

$765 (per additional dependant)

*These fees remain unchanged