The situation of appeals to the Administrative Appeals Tribunal (AAT) (and its predecessor of the Migration Review Tribunal (MRT)) for applicants whose subclass 457 visa applications were refused was narrowed in December 2014. This occurred following the decision of Judge Nicholls in the case of Minister for Immigration v Lee & Ors  (2014) FCCA 2881 (10 December 2014) (The “Lee” decision).

However, the recently decided case of Kandel v Minister for Immigration & Anor, (2015) FCCA 2013 (7 August 2015) (the “Kandel” decision) in the Federal Circuit Court has shed further light on tribunal appeal rights in the situation of refusal of a subclass 457 visa by the Department of Immigration and Border Protection (DIBP).

The “Lee” decision

In the Lee decision, the Federal Circuit Court determined that the MRT did not have jurisdiction to review a subclass 457 visa refusal unless an approved nomination was in force at the time the review application was lodged with the Tribunal.

This case involved a nomination by H2 Property of a citizen of South Korea to be sponsored by the company as a “Marketing Specialist” on a subclass 457 visa. The nomination was approved by the DIBP, however by the time the DIBP made a decision regarding the visa application, the nomination (valid for a 12 month period) was no longer effective and the visa application was refused. An appeal regarding the refusal of the visa application was lodged with the MRT, however the Minister asserted that the MRT had no jurisdiction to review the application given that the nomination had expired.

The Court found that the MRT had wrongly determined that the sponsorship period remained in force for four years and that it only remained in force 12 months after the approval of the nomination. The Court significantly held that it was necessary for an approved nomination to be in force in order for the Tribunal to review the DIBP refusal of a subclass 457 visa application.

The “Kandel” decision

The “Kandel” decision involved the situation where the visa applicant’s subclass 457 nomination and visa application were refused by the DIBP. The visa applicant received a letter stating that the application was not reviewable by the Tribunal. However, in this situation the visa applicant lodged a new nomination application with the DIBP and then seven minutes later lodged an application for review. The AAT found that it did not have jurisdiction to review the decision of the refusal relying on the “Lee” decision that an approved nomination was not in force.

Judge Street in the Federal Court, effectively overturned the “Lee” decision, finding that it is not necessary for a subclass 457 nomination to be approved in order for the refusal of a subclass 457 visa application to be reviewed at the Tribunal. Rather, it is only necessary for a visa applicant to be “identified” in a nomination application in order for the AAT to have jurisdiction to review a decision by the DIBP to refuse a subclass 457 visa application.

Current AAT appeal rights

It seems that under the present state of the law, it will be possible to apply to the AAT in the situation where a subclass 457 visa application is refused at the Department stage:

1. Where the subclass 457 sponsorship application has been refused by the DIBP and is appealed by the sponsoring employer;
2. Where a subclass 457 nomination application by the sponsoring employer has been approved and is still in force; and
3. Where a subclass 457 nomination application by the sponsoring employer has been refused by the DIBP, but a new nomination application has been lodged.

The review situation following the “Kandel” decision has been clarified where as long as the subclass 457 visa applicant has been identified in a nomination application, this will now be sufficient to enable a review by the AAT in the case where the subclass 457 visa application is refused by the DIBP. A nomination is no longer required to be in force in order for the AAT to have jurisdiction to hear the appeal of a refused subclass 457 visa application.

For advice regarding subclass 457 nomination and visa application appeals, please feel free to contact the author by email at rebecca@hartmanlawyers.com.au or by telephone on +61 3 9021 0986 or +61 (0)423 701 747 for instructions.

Disclaimer:

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.

Following the election of the Coalition Government in 2013, we witnessed a relaxation by the Department of Immigration and Border Protection (DIBP) in the processing of Temporary Work (Skilled) (subclass 457) sponsorship, nomination and visa applications. In Prime Minister, Tony Abbott’s, election speech he mentioned the emphasis of the new Government on allowing Australian businesses to develop through the ability of sponsoring skilled overseas workers on subclass 457 visas.

However, we have now witnessed a complete turnaround on the processing efficiency and relative leniency within the DIBP in regards to subclass 457 sponsorship, nomination and visa applications which was present following the Coalition Government’s election.

Increased processing times

The lack of efficiency and greater level of scrutiny of subclass 457 sponsorship, nomination and visa applications has resulted from:

• The DIBP has changed the processing mechanism so that rather than once case officer assessing each application, it is allocated to a “team” which assesses the file, and therefore it is no longer possible to deal directly with one assessor personally when contacting the DIBP about specific applications;
• The DIBP has increased the amount of Request for Information (RFI’s) sent out on each application; and
• The DIBP is utilising the “genuineness criteria” to add additional scrutiny to positions nominated within a business.

The increase in processing times has led to some frustration for businesses requiring staff to commence their role and for subclass 457 visa applicants wishing to gain certainty of the Australian visa status.

Increased refusals

In addition to greater processing times, it has been reported that there has been a greater number of subclass 457 sponsorship, nomination and visa applications refused by the DIBP. Figures released by the DIBP show that the number of subclass 457 applicant grants declined by over 4.1% since March 2015.

Proceeding carefully

The 457 visa program is essential for businesses to be able to fill positions where there are local labour shortages or where an overseas employee has crucial skills to assist the business. The DIBP seems to seesaw from efficiency and leniency to inefficiency and harshness in assessment. We seem to have now reached the latter period again.

It has therefore become important that in order to maximise the chance of success of a subclass 457 sponsorship, nomination and visa application being approved that it is lodged by a person/organisation with an in depth knowledge of the Migration Regulations 1994, Migration Act 1958 and informing policy and case law.

Should your organisation, or you as an individual, require advice regarding subclass 457 eligibility criteria, we are certainly able to assist. Please feel free to contact the author by email at rebecca@hartmanlawyers.com.au or by telephone on +61 3 9021 0986 or +61 (0)423 701 747 for instruction.

Disclaimer:

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.

The Australian Government has implemented changes to the subclass 457 visa program to slightly relax the English language requirements for visa applicants.

What are the new requirements?

For visa applicants who do not meet the exceptions to the English language requirements, one of the following test scores must be shown:

• An International English Language Testing System (IELTS) overall test score of at least 5.0 with a score of at least 4.5 in each of the four test components;
• An Occupational English Test (OET) score of at least ‘B’ in each of the four components;
• A Test of English as a Foreign Language internet-based test (TOEFL iBT) total score of at least 36 with a score of at least 3 for each of the test components of listening and reading, and a score of at least 12 for each of the test components of writing and speaking;
• A Pearson Test of English (PTE) Academic overall test score of at least 36 with a score of at least 30 in each of the four test components; or
• A Cambridge English: Advanced (CAE) overall test score of at least 154 with a score of at least 147 in each of the four test components.

What are the exceptions to English language testing?

The following exceptions will now apply to requiring English language testing:

• If the nominated occupation does not need a level of English language proficiency for grant of registration, licence or membership, and:
  • The visa applicant holds a passport holder from Canada, New Zealand, the Republic of Ireland, the United Kingdom or the United States of America; or
  • The visa applicant has completed at least five years of full-time study in a secondary or higher education institution where instruction was conducted in English.
• The visa applicant is paid a salary that is more than the English language requirement exempt amount, which is currently $96,400.

Assistance

Should you require specific advice regarding English language requirements for subclass 457 visa applicants, please contact Principal Lawyer, Rebecca Berkovic, at rebecca@hartmanlawyers.com.au.

Disclaimer:

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.

Following an independent review of the subclass 457 visa program, the Australian Government has announced that it will be adopting recommendations to alter the program.

What are the changes?

• The sponsorship terms for businesses approved as standard business sponsors will increase from the current three years to five years for established businesses.
• For newly established businesses (those operating for less than 12 months), the sponsorship term will extend from 12 months to 18 months.
• English language requirements for subclass 457 visa applicants will be slightly more relaxed.
• Information sharing between the Department of Immigration and Border Protection (DIBP) and the Australian Tax Office (ATO) will be increased.  Information sharing will include the ATO verifying that subclass 457 visa holders are paid their stipulated salary and verifying information provided by businesses to the DIBP.
• Training benchmarks for standard business sponsors (which currently includes Training Benchmark A of contributing 2% of payroll to an industry training fund or 1% of payroll expenditure spent on training Australian staff) will be replaced with an annual training contribution made by the business sponsor.
• Fraudulent actions by business sponsors will become criminalised and accepting payment to sponsor a subclass 457 visa holder will become a criminal offence.

When will the changes take place?

• The Australian Government has implemented the above changes to the subclass 457 visa program on 18 March 2015.

What next?

• Further changes to the subclass 457 visa program are expected to be introduced throughout 2015.

We will ensure that all our clients are informed of changes to the subclass 457 visa program as they occur.  Please contact Principal Lawyer, Rebecca Berkovic, for advice regarding subclass 457 visa sponsorship.

Disclaimer:

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.

Purpose of the amended programme

It was announced by the Federal Government today, that recommendations by an independent review of the subclass 457 visa programme will be adopted.  The Government has announced that the changes are intended to:

• Strengthen the integrity of the subclass 457 visa programme;
• Ensure that Australian workers have priority for Australian jobs; and
• Support employers with genuine skill shortages.

Major changes to the subclass 457 visa programme

The most significant changes to the subclass 457 visa programme that will affect business sponsors and overseas workers applying for subclass 457 visas can be summarised as follows:

1. Standard business sponsors will be approved for five years instead of the current three years, whereas newly established companies will be granted sponsorship for 18 months as opposed to the current 12 month period;
2. The current training benchmarks of Training Benchmark A (contribution of 2% of payroll into an industry training fund) or Training Benchmark B (1% of payroll expenditure spent on training Australian staff) will become obsolete. They are intended to be replaced by an annual training contribution to a government training fund by business sponsors. The amount of the contribution is yet to bme announced and will most likely depend on the number of subclass 457 visa holders and possibly the size of the business;
3. English language requirements for subclass 457 visa holders will become less stringent;
4. Sponsors who comply with their sponsorship obligations are intended byto be rewarded by the Department of Immigration and Border Protection (DIBP) by providing them with streamlined processing for subclass 457 nomination and visa applications;
5. There will be an increase in the sharing of information between the DIBP and the Australian Tax Office (ATO) in terms of verifying information provided by standard business sponsors and ensuring that workers on subclass 457 visas are receiving their nominated salary; and
6. The Australian Government will begin criminalising fraudulent actions under the subclass 457 visa programme, including making it unlawful for sponsors to receive payment in return for sponsoring a worker for a 457 visa.

Implementation

The Australian Federal Government has already begun implementation of the review’s recommendations and has announced that it will further introduce the above changes to the subclass 457 visa programme throughout 2015.

We will keep all our clients informed of future developments and changes to the subclass 457 visa programme.

 

 

Disclaimer:

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.

An independent review into the integrity of the 457 visa regime commissioned by the Department of Immigration and Border Protection (DIBP) has now been released. The review has been praised by the Minister for Immigration and Border Protection (DIBP), the Hon Scott Morrison, who issued a statement saying that the report provided a “balanced and measured” view of the 457 visa programme. Whilst there is as yet no specific implementation date, it is expected that in the coming weeks or months the Government will provide a response to the report.
The independent review commission by the DIBP included a four person panel whose purpose was to “recommend a system that, operating in the national interest, was sound and resistant to misuse (the “integrity” goal), and, at the same time, flexible and able to respond quickly to economic and business changes (the “productivity” goal).”

Summary of recommendations

The main recommendations of the “Robust New Foundations: A Streamlined, Transparent and Responsive System for the 457 Programme” report worth noting are as follows:

• That a council should be established by the DIBP in order to determine the nominated occupations for the subclass 457 visa occupation list;
• That the labour market testing provisions should be abolished;
• That the current training requirements of Training Benchmark A and B should be abolished and replaced with an annual training fund contribution by business sponsors of $400 per 457 visa holder employed by the business;
• The Temporary Income Salary Migration Threshold of $53,900 should not be increased for a period of two years, during which time it will be reviewed.  There may be provision for a 10 per cent lower threshold (i.e. $48 510) for determining the eligibility of the nominated occupation, which could be known as the Skilled Occupation Eligibility Threshold;
• In terms of English language testing, the current requirement of 5.0 in all four components of the IELTS test is recommended to be replaced by 5.0 as an overall band score and other English language testing, such as TOEFL internet based tests, Pearson Test of English Academic (“PTE”Academic) and Cambridge English: Advanced (“CAE”) are recommended to be acceptable as well as exploring the suitability of other tests, such as the International Second Language Proficiency Rating test;
• That the term of the sponsorship period should be increased from three years to five years for established companies (those operating for more than a year), and from 12 months to 18 months for newly established companies (those operating for less than a year);
• That the “genuine position” requirement be maintained but that case officers undergo training regarding the nature of this criterion;
• It is recommended that a three-tier approach apply to subclass 457 sponsorships set out in the following table:

• That Labour Agreement negotiation times be significantly improved and that template agreements for industries be developed to streamline the process;
• That transitioning to Employer Nomination Scheme or Regional Sponsored Migration Scheme, should require a subclass 457 visa holder to have held their subclass 457 visa for a minimum of two years and have worked for the nominating employer for a minimum of one year, instead of the current two year requirement;
• That there should be greater emphasis on monitoring of standard business sponsor compliance and greater information sharing between the DIBP and other governmental departments, such as the ATO and Fair Work Commission. Visa applicants should be required to provide tax file numbers when lodging their visa applications; and
• That the subclass 457 visa application costs be reviewed, especially those for secondary visa applicants and the recently introduced Subsequent Temporary Visa Application Charge.

Complete list of recommendations

A full list of the 22 recommendations suggested by the independent review are stipulated in the report to be as follows:

Recommendation 1 

1.1 That, in lieu of the existing Ministerial Advisory Council on Skilled Migration, a new tripartite ministerial advisory council, which is not necessarily prescribed in legislation, be established to report to government on skilled migration issues.

1.2 That the new ministerial advisory council be supported by a dedicated labour market analysis resource.

Recommendation 2

2. Acknowledging that, as the OECD has pointed out, employer-conducted labour market testing is not “fully reliable”, and in the Australian context has proven ineffective, that the current legislative requirement for labour market testing be abolished.

Recommendation 3

3.1 That the Consolidated Sponsored Occupations List be retained as a list of occupations which are at Skill Level 3 and above, and that the Consolidated Sponsored Occupations List should be able to be amended by two means: first, the addition of skilled occupations which can be shown to exist in the community but which may not be on the ANZSCO list; and, second, the refinement of the Consolidated Sponsored Occupations List in cases where there may be integrity or appropriateness concerns. Any occupations not on the list, which are usually referred to as semi-skilled, may be addressed as part of the Labour Agreement regime.

3.2 That the new ministerial advisory council provide advice on those occupations where some concern exists and recommend additional requirements or limitations on occupations and/or regions.

Recommendation 4 

4. That the market rate framework continue to operate as a core component of the 457 programme, but that the earnings threshold above which there is an exemption from the need to demonstrate the market rate should be aligned with the income level above which the top marginal tax rate is paid (currently at $180 000).

Recommendation 5

5.1 While there is an argument for abolishing the Temporary Skilled Migration Income Threshold, that it nevertheless be retained to allow for streamlining within the wider programme, and that concessions to the Temporary Skilled Migration Income Threshold be afforded under Labour Agreements, Enterprise Migration Agreements and Designated Area Migration Agreements, as appropriate.

5.2 That the current Temporary Skilled Migration Income Threshold be retained at $53 900 p.a. but that it not undergo any further increases until it is reviewed within two years.

5.3 That the two roles currently performed by the Temporary Skilled Migration Income Threshold (that is, acting as a determination of the eligibility of occupations for access to the scheme and as an income floor) be more clearly articulated in the 457 programme, and that consideration be given to accepting the eligibility threshold as up to 10 per cent lower than the Temporary Skilled Migration Income Threshold.

5.4 That the government give further consideration to a regional concession to the Temporary Skilled Migration Income Threshold, but only in limited circumstances where evidence clearly supports such concession.

5.5 That in circumstances where the base rate of pay is below the Temporary Skilled Migration Income Threshold, the current flexible approach adopted by the department, taking into account guaranteed annual earnings to arrive at a rate that meets the minimum requirement of Temporary Skilled Migration Income Threshold be continued and made more visible to users of the programme and their professional advisors.

Recommendation 6

6.1 That the current training benchmarks be replaced by an annual training fund contribution based on each 457 visa holder sponsored, with the contributions scaled according to size of business.

6.2 That any funding raised by way of a training contribution from sponsors of 457 visa holders be invested in:

a) training and support initiatives, including job readiness, life skills, and outreach programmes for disengaged groups, particularly youth who have fallen out of the school system;

b) programmes allowing employers to take on apprentices/trainees from target groups, including Indigenous Australians and those in rural and regional areas;

c) mentoring programmes and training scholarships aimed at providing upskilling opportunities within the vocational training and higher education sectors that address critical skills gaps in the current Australian workforce. Target sectors include those industries, such as nursing and the IT sector, that rely heavily on 457 workers; and,

d) training and support initiatives for sectors of critical national priority. Target sectors include industries experiencing significant increase in labour demands, such as the aged care and disability care sectors.

6.3 That funds raised through the training contribution be dedicated to this training role and that the government reports annually on how these monies are spent by the Department of Industry.

6.4 That there be a new sponsor obligation to ensure that the cost to the sponsor of the training contribution cannot be passed onto a 457 visa holder or third party.

Recommendation 7

7.1 That the English language requirement be amended to an average score. For example, in relation to International English Language Testing System, the 457 applicant should have an average of 5 across the four competencies (or the equivalent for an alternative English language testing provider).

7.2 That greater flexibility be provided for industries or businesses to seek concessions to the English language requirement for certain occupations on a case by case basis, or under a Labour Agreement, Enterprise Migration Agreement or Designated Area Migration Agreement, as appropriate.

7.3 That consideration be given to alternative English language test providers.

7.4 That consideration be given to expanding the list of nationalities that are exempt from the need to demonstrate they meet the English language requirement.

7.5 That instead of the current exemption which requires five years continuous study, five years cumulative study be accepted.

Recommendation 8

8.1 That there be targeted training for decision-makers in relation to the assessment of the genuine position requirement.

8.2 That before decision-makers refuse a nomination on the basis of the genuine position requirement, the sponsor be invited to provide further information to the decision-maker.

Recommendation 9 

9. That the government should explore how skills assessments could more appropriately recognise a visa applicant’s experience.

Recommendation 10 

10.1 That Standard Business Sponsors should be approved for five years and start-up business sponsors for 18 months.

10.2 That as part of the government’s deregulation agenda, the department should develop a simplified process for sponsor renewal.

10.3 That the department consider combining as many sponsorship classes as possible.

10.4 That when more detailed information is available, the department should investigate the alignment of overseas business and Labour Agreement sponsorship periods with the general Standard Business Sponsorship approval period.

10.5 That the timeframe for the sponsor to notify the department of notifiable events as set out in legislation should be extended to 28 days after the event has occurred.

10.6 That the department should explore options that would enable the enforcement of the attestation relating to non-discriminatory employment practices.

10.7 That it be made unlawful for a sponsor to be paid by visa applicants for a migration outcome, and that this be reinforced by a robust penalty and conviction framework.

Recommendation 11

11. That the government should review the fee structure, especially for secondary visa applicants and visa renewal applications.

Recommendation 12

12.1 That sponsors be required to include as part of the signed employment contract:

a) a summary of visa holder rights prepared by the department; and,

b) the Fair Work Ombudsman’s Fair Work Information Statement.

12.2 That improvements be made to both the accessibility and content on the department’s website specific to 457 visa holder rights and obligations, and utilising the department’s significant online presence more effectively to educate 457 visa holders ontheir rights in Australia.

Recommendation 13

13.1 That consideration be given to creating streamlined processing within the existing 457 programme as a deregulatory measure. To maintain programme integrity, streamlining should be built around risk factors including business size, occupation, salary and sponsor behaviour.

13.2 That should the recommended nomination and visa streamlining outlined in this report be implemented, the department should investigate a redefined accredited sponsor system. Current accredited sponsors should retain their priority processing benefits until their sponsorship ceases; however, no further sponsors should be afforded accredited status until a new system is implemented.

Recommendation 14

14.1 That Labour Agreement negotiation times be significantly improved to enable a demand-driven and responsive pathway for temporary migration, where the standard 457 programme arrangements are not suitable.

14.2 That to enable the Labour Agreement pathway to be more open and accessible for additional industry sectors, consideration be given to the development of other template agreements that will address temporary local labour shortages in industries of need.

Recommendation 15

15.1 That 457 visa holders be required to work for at least two years in Australia before transitioning to the Employer Nomination Scheme or Regional Sponsored Migration Scheme, and that consideration be given to the amount of time required with a nominating employer being at least one year.

15.2 That consideration be given to reviewing the age restriction on those 457 visa holders transitioning to the Employer Nomination Scheme or Regional Sponsored Migration Scheme.

15.3 That consideration be given to facilitating access for partners of primary sponsored 457 visa holders to secure permanent residence under the Temporary Residence Transition stream.

Recommendation 16

16. That consideration be given to the allocation of more resources to programmes aimed at helping sponsors understand and comply with their obligations, whether those programmes are delivered directly to sponsors or through the migration advice profession.

Recommendation 17

17. That greater priority be given to monitoring, and that the department continue to enhance its compliance model to ensure those resources are applied efficiently and effectively.

Recommendation 18

18.1 That there be greater collaboration between the department and the Australian Taxation Office to uphold integrity within the 457 programme and minimise the burden on employers.

18.2 That a change to 457 visa conditions be introduced to place an obligation on the visa holder to provide the department with their Australian tax file number.

Recommendation 19

19.1 That the Fair Work Ombudsman’s current complementary role in monitoring compliance and referral of findings to the department for action should continue.

19.2 That the department should provide information in real time that is both current and in a format compatible with that of the Fair Work Ombudsman.

Recommendation 20

20.1 That the department monitor decisions of the Fair Work Commission, so as to determine if sponsors have breached obligations or provided false and misleading information.

20.2 That the department require sponsors, when lodging a new nomination application to certify that there has been no change to the information provided to the department in relation to whether the business or an associated entity has been subject to “adverse information” as that term is defined in the legislation.

Recommendation 21

21.1 That dedicated resourcing be made available to the department to enable the investigation and prosecution of civil penalty applications and court orders.

21.2 That the department disclose greater information on its sanction actions and communicate this directly to all sponsors and the migration advice profession as well as placing information on the website.

Recommendation 22

22. That the department investigate the feasibility of system improvements that facilitate greater linkages with information held by other government agencies.

Conclusion

At the present time, the “Robust New Foundations: A Streamlined, Transparent and Responsive System for the 457 Programme” report simply stipulates recommendations made by the independent panel to the DIBP.  We are yet to discover from the DIBP Minister whether or not these recommendations will be implemented.  We will keep our clients informed as to if and when these recommendations are adopted by the DIBP.

 

Disclaimer:

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.

The Department of Immigration and Border Protection (DIBP) has the right to monitor companies sponsoring workers on Temporary Work (Skilled) (subclass 457) visas, (which are known as standard business sponsors) at any stage during the sponsorship period. However, sponsorship monitoring need not be stressful, provided the standard business sponsor ensures that the sponsorship obligations continue to be met by the company.

Main obligations

It is crucial that as a subclass 457 sponsor, companies ensure the following:

1. That all subclass 457 visa holders actually work in their nominated occupation;
2. That the company pays subclass 457 visa holders the salary stipulated in their nomination application form at regular intervals (weekly, fortnightly or monthly); and
3. That records are kept by the standard business sponsor that can be produced upon request by the DIBP of the following:

a. any money paid to the subclass 457 visa holder, such as payslips and salary information;

b. any leave taken by the subclass 457 visa holder;

c. copy of the employment contract of the subclass 457 visa holder; and

d. notices of salary increases of the subclass 457 visa holder.

It is reminded that the nominated occupation and salary of subclass 457 visa holders is contained in the nomination approval notices sent from the DIBP. We are happy to assist should your company wish to check the nominated occupations and salaries or your subclass 457 visa holders.

Change in circumstances

As a standard business sponsor, it is necessary to inform the DIBP of any change in circumstances of the company. Examples of a change in circumstances include the following:

• If the subclass 457 visa holder ceases or is expected to cease employment with the company (if they are terminated or resign), then the standard business sponsor must inform the DIBP of this event;
• The DIBP must be notified of a change to the address or contact details of the business; and
• If there is a change to the duties carried out by the subclass 457 visa holder, then the DIBP must be notified of this change.

It is necessary for standard business sponsors to notify the DIBP of a change in circumstances within 10 days following the event. We can certainly assist in advising the relevant section of the DIBP of a change in circumstances for a standard business sponsor. If your company is unsure whether it is under an obligation to inform the DIBP of a change to the role of your subclass 457 visa holder or your company, it is always preferable to err on the side of caution. We are happy to provide advice to our clients on what constitutes a change in circumstances.

Training obligations

It is reminded that part of the obligations as a standard business sponsor is to maintain training of Australian staff throughout the sponsorship term.

Training obligations consist of the following options:

• If the standard business sponsor applied under Training Benchmark A, the company must spend an equivalent of at least two per cent of payroll in payments to an industry training fund that operates in the same industry; or
• If the standard business sponsor applied under Training Benchmark B, the company must spend an equivalent to at least one per cent of payroll in the provision of training to employees of the business who are Australian citizens or Australian permanent residents.

The company must meet the training obligation in each 12 month period within which it employs a sponsored visa holder (including if the sponsored visa holder is not employed by the company for the full twelve months).

Please let us know if you have any questions regarding the training obligations and how your company can continue to meet this requirement throughout the term of the sponsorship.

Complete sponsorship obligations

We have attached a complete copy of the standard business sponsor sponsorship obligations published on the DIBP website. Please let us know if you have any questions regarding your company’s sponsorship obligations.

It is important to understand your sponsorship obligations and to maintain the correct records to remove any stress should the DIBP monitor your company in the future.

 

 

Disclaimer:

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.

The Federal Government has now abolished the ceiling placed on businesses applying to nominate workers on Temporary Work (Skilled) (subclass 457) visas in the process of applying to become standard business sponsors.

Following the host of changes to the subclass 457 visa program introduced on 1 July 2013, it became necessary for businesses to elect a ceiling on the amount of overseas workers they could nominate for the term of the sponsorship. This was a problematic process as it was difficult for a business to predict into the future exactly how many overseas workers the business may require.

Prior to the abolishment of the provision, should a business reach the nomination ceiling, they would be required to apply to the Department of Immigration and Border Protection (DIBP) to vary the terms of the sponsorship arrangement.

Following the abolishment of the nomination ceiling, businesses applying for subclass 457 sponsorship approval processed after 14 February 2014 will still be required to state how many overseas workers they intend to nominate, however further nominations can still be lodged after this number has been reached. This provides businesses with more flexibility in sponsoring overseas workers on subclass 457 visas.

Please contact us for further information regarding the new labour market testing provisions.

Disclaimer:

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.

As of 23 November 2013, labour market testing provisions have been introduced into the Temporary Work Skilled (subclass 457) visa program.   The changes were established as part of the Migration Amendment (Temporary Sponsored Visas) Act 2013 which was passed by the Australian Federal Government in June 2013.  The purpose of the labour market testing provisions is for sponsoring businesses to demonstrate that they have made a genuine effort to recruit from the Australian population, prior to seeking to recruit overseas workers.

Employers will need to establish that reasonable efforts were made to find suitably qualified and experienced Australian workers for nominated positions in the twelve months prior to lodging a nomination application.  Employers must submit evidence to the Department of Immigration and Border Protection (DIBP) of efforts to recruit locally, unless the nominated occupation selected is exempt.

The labour market testing provisions

Proving that reasonable efforts were made to hire suitably qualified and experienced Australian workers, must include the following steps:

• Employers must have advertised the position locally and must provide information concerning all efforts by the business at advertising and recruiting for the position locally in the 12 months prior to lodging the nomination application;
• Evidence of advertising and recruitment efforts must include the following information:

• the dates recruitment activities occurred;
• the geographic target audience; and
• the outcome of the recruitment, including the number of applications received, number of applicants hired and the general reasons why other candidates were not selected;

• Evidence of labour market testing may also include:
  • labour market research;
  • expressions of support from government employment agencies; or
  • information about the sponsoring business’ participation in job and career expositions;
• Employers must show that there were no suitable Australian permanent resident or citizen candidates able to fill the position.

If redundancies or retrenchments have been made by the sponsoring business or an associated entity of Australian workers in the same or a similar occupation to the nominated occupation within four months of lodging the nomination application, then the business must provide evidence of recruitment evidence from the date that the redundancies or retrenchments were made.

Occupations affected by labour testing and those that will be exempt

The DIBP has confirmed the list of occupations under the subclass 457 visa regime that will be subject to labour market testing.

Labour market testing will only be required for the following types of occupations:

• Trade occupations (ie requiring an apprenticeship or completion of the equivalent of an Australian Certificate IV);
• Technical occupations (ie requiring a Certificate IV);
• Engineers; and
• Nurses.

Basically, any other eligible occupation for the subclass 457 visa will be exempt.  The general criteria of the exempt occupations are that they require a diploma, bachelor degree or higher qualification or equivalent experience.

Labour Market Testing will NOT be required for:

• Most Management Positions;
• Most Professional Occupations; and
• Most Associate Professional Positions (requiring a diploma level qualification).

Exemptions will also apply where labour market testing requirements would be inconsistent with international trade obligations.  International trade obligations include the following situations:

1. The nominated worker is a citizen of Chile or Thailand, or is a Citizen/Permanent Resident of New Zealand;
2. The nominated worker is a current employee of a business that is an associated entity of the sponsor that is located in an Association of South-East Asian Nations (ASEAN) country (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam), Chile or New Zealand.
3. The nominated worker is a current employee of an associated entity of the sponsor who operates in a country that is a member of the World Trade Organisation, where the nominated occupation is listed below as an “Executive or Senior Manager” and the nominee will be responsible for the entire or a substantial part of your company’s operations in Australia.
4. The sponsor currently operates in a World Trade Organisation member country and is seeking to establish a business in Australia, where the nominated occupation is listed as an “Executive or Senior Manager”;
5. The nominated worker is a citizen of a World Trade Organisation member country and has worked for the sponsor in Australia on a full-time basis for the last two years.

Moreover, subclass 457 visa applicants nominated to assist in a relief effort after a major disaster will also be exempt from labour market testing.

Labour market testing provisions will not apply to nominations lodged by parties to a labour agreement.

The effect of the labour market testing provisions

The impact of labour market testing will be limited to specific occupations, such as engineering, nursing and some trade and technical occupations.

When sponsoring businesses wish to nominate workers who do not fall within one of the exemptions from labour market testing, additional steps will be required to demonstrate attempts at hiring within the local labour force.

Please contact us for further information regarding the new labour market testing provisions.

Disclaimer:

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.