Australia: Business Migration Reforms to restrict illegal workers

Temporary Business Entry and Employer Nominated Permanent Residence Schemes

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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