Immigration Minister moves to tighten theTemporary Work (Skilled) (Subclass 457) Program

04 Mar 2013

Temporary migration is likely to be a hot topic in this year’s Federal election following an announcement on 23 February 2013 by the new Minister for Immigration & Citizenship, Brendan O’Connor, of reforms to the Temporary Work (skilled) subclass 457 visa program. The proposed reforms, which are designed to protect Australian workers and strengthen the integrity of the 457 visa program, will be introduced from 1 July 2013.

The Minister’s announcement has generated much debate from various industry groups with concerns that the proposed reforms will increase red tape for compliant sponsors under the 457 program which is already regulated and monitored.

The announcement also coincides with the passing of the Migration Amendment (Reform of Employer) Sanctions Bill 2012 (Employer Sanctions Bill) through the Senate on 27 February 2013. As outlined in Fragomen’s article in Human Capital last year, the Employer Sanctions Bill introduces new civil penalty provisions against employers who are found to have employed a foreign worker without appropriate work permission, regardless of whether or not the employer knew or was reckless about the worker’s visa entitlements. A commencement date is yet to be announced for the Employer Sanctions Bill but it is expected to also come into effect from 1 July 2013.

About the 457 VisaProgram

The 457 program allows employers to address labour shortages by employing overseas workers where there is an obvious short-coming of specific skills which are not readily accessible in the local employment market.

The program is highly responsive to labour market pressures and is designed to allow employers to sponsor foreign workers to temporarily fill genuine vacancies in their business.

Significant changes to the 457 program in September 2009 were designed to ensure the program continued to meet the demands of the domestic labour marketwhilst enhancing reporting requirements to ensure compliance by sponsorsand protecting local labour market conditions.

Theproposedchanges

The Minister indicated that the proposed changes follow a recent review of the 457 program by the Ministerial Advisory Council on Skilled Migration and are designed to improve the program’s ability to reinforce the effectiveness of the 457 visa to protect local workers.

Foremost, the introduction of a new ‘genuineness’ requirement will mean that employerswill need to showthat they are nominating positions where a genuine skill shortage exists.

Further changes to the 457 program will include:

A requirement for market salary evidence for all applications of positions under $250,000 (a rise from $180,000) that allows the employee to not provide evidence that guaranteed earnings;
An increase of English language requirements for certain positions; and
Tightening of existing compliance and enforcement powers for employers who attempt to abuse the 457 system, including measures to ensure that:
All employees have appropriate work rights;
The working conditions of 457 visa holders meet Australian standards and that such workers are not being exploited;
Ongoing training expenditure throughout the period of sponsorship approval; and
457 visa holders are not on-hired to an unrelated business unless there is a Labour Agreement in place.

Over the coming months, DIAC is expected to release more specific information on implementation of these reforms. Fragomen is closely monitoring these developments and will and will be hosting information sessions to discuss the impact of the reforms to the 457 program and the Employer Sanctions Bill. If you would like to be invited to one of these sessions please contact Anna Huurdeman at [email protected]

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