New policy changes under the current Coalition government in
relation to sponsoring skilled workers, took effect on 1 July 2016.
The uncertainty over the outcome of the recent election leaves us
with little comfort of what's to come in the area of employment
and migration, and whether there will be further changes.
In recent times, the focus on immigrants has shifted (slightly)
away from Australia's treatment of its asylum seekers, to
exposing the vast numbers of immigrants employed in Australia on
subclass 457 visas and other skilled working visas. A
recent ABC headline phrased the issue as "corruption and
widespread rorting 'undermining Australia's immigration
The article states that while the government has been focused on
asylum seekers and "stopping the boats," many immigrants
have taken advantage of this and have been able to obtain skilled
457 visas on the basis of fraudulent and misleading information
supplied to the Department of Immigration and Border Protection,
and that this has been made possible as a result of unethical and
dishonest practices by the migrating employee, sponsoring employer
and migration agents.
Labor Party has promised if elected, to crack down on the
exploitation of the skilled workers migration program and on the
exploitation of migrant workers themselves, by, amongst other
things, establishing an enhanced Advisory Council on Skilled
Migration as an independent statutory body tasked to monitor
skilled visa programmes and compliance with the program by migrants
and sponsoring employers. A Shorten Labor Government will also
introduce more rigorous evidentiary requirements for labour market
testing, a requirement aimed at ensuring that employers have tested
the Australian market for suitable employees, before making the
decision to employ a skilled worker from overseas.
Under the current government, the Coalition has also taken steps
to strengthen the skilled migrant program by the Department
releasing new policies that apply to the 457 program on 1 July,
The 1 July changes
The changes come in the form of more stringent requirements that
apply to employers wishing to sponsor and nominate skilled
migrants. The new policies have an increased focus on the
"genuineness" requirement. The genuineness requirement
requires employers to be able to demonstrate to the Department that
there is a position that exists within the business, that requires
the skills of the migrating employee, and that the Australian
labour market has been adequately tested to ensure that there are
no suitably qualified Australian employees. The increased focus on
the genuineness requirement aims to tackle situations whereby a
nominated position may have been created to secure a migration
outcome, in circumstances where the need for a skilled migrant is
The new guidelines also assist Department officials in being
able to pick out which nomination applications might not be genuine
by providing certain "flags" that may suggest a
fraudulent nomination. These flags include:
There is information to suggest the nominated position was
created in order to assist a family member to come to
There is information to suggest the tasks of the position
don't align with the tasks of the nominated position described
in the Australian and New Zealand Standard Classification of
Occupations (which describes all occupations in the Australian and
NZ work forces)
The nominated position is inconsistent with the nature or size
of the business.
Alongside new measures to prevent exploitation of the 457
program, there were also new measures introduced on 1 July to speed
up the process for employers who have a history of good dealings
with the Department. Such employers are classified as
Accredited Sponsors have satisfied certain requirements, such as
having at least $4 million annual turnover for the last three
years, having been an active 457 sponsor for at least three years
and having at least 75% of their workforce in Australia comprising
of Australian workers. Once a sponsor becomes an Accredited
Sponsor, the sponsorship is valid for six years (as opposed to five
years for a standard business sponsor) and they receive priority
processing for visa and nomination applications.
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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Recent amendments to the Migration Act and regulations, along with the imminent commencement of the new federal safety net under the Fair Work Act, highlight a number of issues for consideration by employers in documenting terms and conditions of employment for foreign nationals engaged to work in Australia under Subclass 457- Business (Long Stay) visas.
If you employ 457 visa holders in your business, you should ensure that you are meeting your sponsorship requirements.
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