MEASURE 1: Strengthening the Employer Attestation provision
Currently 457 business sponsors are required to provide DIAC with attestations that the business does not discriminate in favour of overseas workers. It is proposed that this should become a binding agreement between DIAC and the 457 visa sponsor in that the sponsor must demonstrate throughout the period of the sponsorship that they do not discriminate in favour of overseas workers and this would be enforced through monitoring.
MEASURE 2: Training Benchmarks
Strengthen the enforceability of the existing training benchmarks to ensure that sponsors are genuinely contributing to ongoing training of Australians.
- Training benchmarks would become a binding requirement rather than a commitment;
- Business sponsors will be required to keep records of ongoing training;
- Businesses that have been trading for less than 12 months will be required to provide an auditable plan to meet the training benchmarks and to make an ongoing commitment to continue to meet the training benchmarks for the duration of their sponsorship; and
- Businesses seeking to renew or vary their 457 sponsorship agreement will be required to demonstrate that they have met their commitment to training throughout the term of their previous sponsorship.
MEASURE 3: Genuineness criterion
Introduce a “genuineness” criterion in the assessment of 457 visa nominations to ensure that the nominated position and surrounding circumstances are genuine.
It is noted that under existing provisions business sponsors are only required to certify that the tasks of the nominated position correspond to the tasks of a relevant occupation under the 457 program. The genuineness criterion would enable case officers to consider the veracity of the certification provided and will have the power to decide whether a more appropriate ANZSCO classification is appropriate.
MEASURE 4: Amendments to the terms of an approved sponsorship
Business sponsors will be required to adhere to an agreed number of nominated positions for the duration of their sponsorship. There may be an option to amend numbers, if required.
MEASURE 5: Strengthen assessment of generalist occupations.
“Program and Project Administrator”, “Specialist Managers” and certain other generalist occupations would require skills assessments and would be limited to relevant industries only. DIAC may require subclass 457 visa applicants nominated in these occupations to undertake a skills assessment with VETASSESS to substantiate their skills.
MEASURE 6: Strengthening the market rate provisions
Change to market salary rate provisions to ensure that workers on Subclass 457 visas are not used to undermine the employment conditions of Australian citizens and permanent residents. DIAC has proposed the following:
- To expand market salary rate provisions beyond the particular workplace to that workplace’s regional locality; and
- To increase the market salary assessment exemption threshold to $250,000.
MEASURE 7: Undesirable employment relationships
Prohibit on-hire arrangements that fall outside approved Labour Agreements and employment arrangements that resemble an independent contractor arrangement.
MEASURE 8: Strengthen the obligation not to recover certain costs
Regulation currently only relates to the “recovery” of costs from visa holders. It does not prevent sponsors from requesting visa holders to pay these costs up front, thereby avoiding the act of “recovery”. It is proposed that business sponsors will be required to pay certain costs associated with becoming a sponsor and not pass these costs, in any form, onto the overseas worker.
MEASURE 9: Prevent potential for misuse of the English language salary exemption
A new regulation would be introduced at the employer nomination stage to require the visa holder to have met the English language requirement or be exempt. Therefore, if a worker is exempt from the English language requirement based on their salary of over the exemption threshold, if they transfer employers and their salary is under this amount, they will be required to prove they meet the English language requirement.
MEASURE 10: Terms of sponsorship amendments for overseas business sponsors and start-up businesses
Reduce the period of approved sponsorship for overseas businesses and start-up businesses to 12 months or to the term of a contract (which can only be up to three years) and whichever is the longer term will apply.
MEASURE 11: Mandatory eLodgement of Subclass 457 applications
Require all Subclass 457 sponsorship, nomination and visa applications to be lodged using the eLodgement facility.
MEASURE 12: Minor technical amendments to clarify existing provisions
These minor technical amendments will solve ongoing minor issues within the program and do not represent significant shifts in policy.
- Clarifying the need for a direct employer-employee relationship;
- Requiring a visa applicant to be the subject of a valid approved nomination; and
- Extending the Visa Application Charge (VAC) refund provisions to situations where the nomination is withdrawn.
The proposed measures explained above, although they have not yet been enforced into law, will most likely form the basis of upcoming legislative and policy changes to the 457 visa program. DIAC is yet to announce the exact legal changes to the 457 visa program, however we will keep our clients updated with any developments in this area.
The information on this website is intended only to provide a summary and general overview on relevant matters. It is not intended to be comprehensive nor does it constitute legal advice. You are advised to seek legal or other professional advice before acting or relying on any of the content contained in this website.