Temporary Business Entry and Employer Nominated Permanent
The Australian Government has made a number of reforms to the
Temporary Business Entry and Employer Nominated Permanent Residence
Schemes, which commenced on 1 July 2012.
A Consolidated Occupations List
The new Consolidated Occupations List (CSOL) is to be used for
Temporary Business Entry, Employer Nomination Scheme, Occupational
Trainees and General Skilled Migration. The CSOL increases the
number of eligible occupations. Previously the existence of
different occupation lists meant that a number of 457 visa holders
were not able to move to permanent residency because their
nominated occupation was not available through the Employer
Nomination Scheme (ENS).
Temporary Skilled Migration Income Threshold
Standard business sponsors (SBS) have an obligation to pay visa
holders the Australian market salary for the nominated occupation.
If the market rate for a position is less than the Temporary
Skilled Migration Income Threshold (TSMIT) then the position cannot
be nominated under the 457 program. At present the TSMIT is set at
$51,400 and is indexed annually.Where the TSMIT is changed by the
Government, sponsors must ensure that salaries paid to existing 457
visa holders remain at or above that threshold.
Consolidation of Permanent Employer Sponsored Visas
The new reforms have reduced the number of permanent employer
sponsored visa subclasses (including ENS, Labour Agreements and
Regional Sponsored Migration Scheme) from six to two, by removing
on- and offshore distinctions and by absorbing Labour Agreements
into the ENS and RSMS categories.
Increase in Age Limit
The new reforms have increased the age limit of applicants under
the permanent employer sponsored schemes. Previously applicants
were required to be less than 45 years of age (unless exceptional
circumstances applied). Applicants must now be less then 50 years
of age (unless exemptions apply - see below).
Exemptions for Age, Skill and English
Previously, applications associated with permanent employer
sponsored migration could be submitted on the grounds of
"exceptional circumstances" where the applicant did not
meet the criteria for age, English language or formal
qualifications. The new reforms have replaced the exceptional
circumstances model with possible exemptions based on age, English
language and skills. These exemptions interact with the
requirements concerning nominated occupation, salary and the period
of time an applicant has been employed with their nominator. It is
no longer possible for an "exceptional circumstances"
application to be made.
Proposed New Laws: Migration Amendment (Reform of Employer
Sanctions) Bill 2012
The Federal Government is seeking to introduce new penalties to
deal with employers who engage illegal workers. The Exposure draft
of the Migration Amendment (Reform of Employer Sanctions) Bill 2012
proposes a new civil penalties regime which seeks to impose fines
and penalties against individuals and corporations who permit or
refer (including referral through a labour supplier) an unlawful
non-citizen to work, or to work in breach of their visa conditions.
The maximum penalties which may be imposed are $9,900 for
individuals and $49,500 for corporations.
The proposed regime also introduces statutory defences for
employers, where an employer took reasonable steps to ensure the
worker was not an unlawful citizen, or in breach of a work related
condition. The obligation to verify the migration status of a
worker or the visa conditions of a visa holder falls on the
employer. The Bill recognises that the Department Online
Verification system (VEVO) is available to verify status.
The proposals increase the risk of not ensuring that all your
employees have the right to work in Australia.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The Federal Court handed down the largest-ever court fine for breaches of the Subclass 457 business sponsorship program.
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