Friday, 28th of March 2014 Issue #2 March
No Borders Newsletter

TOP STORY

Migration Agent arrested

Issues of this month

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Closure of ACT state sponsorship applications to overseas applicants

Australian Capital Territory (ACT) has announced yesterday that they have closed the state sponsorship applications of the 190 nomination program to overseas workers. Applications for ACT nomination already submitted before 25 March 2014 will still be processed in queue order.

The processing time for applications lodged in late February onwards is likely to be 4 to 6 months, due to the large number of applications received prior to the publication of the 2014 Occupation List.

The reason of the closure is that the program targets for the Skilled- Nominated (subclass 190) visa had been met for the 2013/14 financial year. It will only affect overseas clients seeking to lodge applications after COB today.

If your clients are living overseas, they will not be able to apply for ACT nomination of a Skilled Nominated (subclass 190) visa until the program reopens in July 2014.

If the applicants are living in Canberra and working in a skilled occupation, they are still able to apply for ACT nomination of the Skilled Nominated (subclass 190) visa providing they meet the current nomination criteria.

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Parental Leave Rights - What an Employer needs to know?

Our Sydney Office

The Fair Work Commission (Commission) has emphasised that women have the right to "give birth to children without foreclosing their employment" in the decision of Hanina Rind v Australian Institute of Superannuation Trustees [2013] FWC 3144 (31 May 2013) (the Rind Case).
The Rind Case confirms the Commission’s views on return to work practices when Employees take parental leave.Serious and genuine consideration of an Employee’s request for varied work arrangements must be part of an Employer’s parental leave process, policy and procedure.
Parental leave is often misunderstood however Employers must be vigilant in ensuring they are well informed as to when an Employee is entitled to parental leave and the obligations for when an Employee returns to work.
Unpaid Parental Leave
The Fair Work Act 2009 provides for an entitlement for unpaid parental leave and is part of the National Employment Standards.
An Employee is entitled to be absent from work for 12 months unpaid parental leave.
Nothing prevents an Employee taking less than 12 months unpaid parental leave.
An Employee may also request a further additional unpaid leave of up to 12 months.The request for further leave must be done so in writing and must be given at least 4 weeks before the end of the first period of unpaid leave.
An Employer may refuse a request only on “reasonable business grounds”.Some examples of what are considered reasonable business grounds for refusing a request include:

  • the excessive financial cost of accommodating the request;
  • inability to recruit a replacement Employee;or
  • significant loss of efficiency or productivity.

Paid Parental Leave
The Paid Parental Leave Act 2010 provides for 18 weeks paid parental leave to eligible primary carers on the birth or adoption of a child.Paid parental leave is fully funded by the Federal Government and is paid at the national minimum wage rate.Primary caregivers are eligible for Paid Parental Leave.
Dad and Partner Pay were also introduced in January 2013 and provides for 2 weeks paid leave at the national minimum wage rate.
Currently the minimum wage rate is $622.20 per week.
Importantly, Employers do not decide who is eligible for Paid Parental Leave.Eligibility is approved by the Family Assistance Office (FAO).The FAO decide if the Employee is eligible and will notify the Employer in writing.
An Employer must respond to the notification within 14 days.The Employer will be responsible as paymaster for the payments but will be fully funded by the FAO.
Any other obligations under industrial instruments such as Modern Awards and Enterprise Bargaining Agreements will be required to be met by an Employer as well as continuing to meet the obligations of passing on the payments made by the FAO.
Ramifications
Employers should ensure that they fully comprehend their obligations regarding Paid and Unpaid Parental Leave.Any breaches of statutory obligations may result in penalties of up to $33,000 for the Company and $6,600 for each individual involved in the breach (this may include human resources, directors and managers).
At this point in time Parental Leave is a reality for Employers and this may change in the near future but as it stands Employers must understand the eligibility of Employees to take parental leave and seek legal advice from our Workplace Relations and Employment Law team for any clarification.

Written by
Jonathan Mamaril
Special Counsel, No Borders Legal Advocates
07 3876 5111
jonathanm@noborderslegal.com.au

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No deadline to clear ‘warehoused’ overseas students

Students

THERE is no deadline for a decision in the skilled migration cases of thousands of “warehoused” former overseas students, the immigration department says.

More than 60,000 ex-students took up special 485 visas as part of a 2010 government package that promised stricter skilled migration system in future but offered “generous” treatment under old rules for overseas students already here.

Of the 61,771 granted the special “skilled graduate” visa with an end-2012 expiry date, 46,286 had won permanent residency or a bridging visa by March 10, the immigration department said.

Included in this group are so-called “cooks and hairdressers”-overseas students who targeted the quickest and cheapest qualifications leading to skilled migration.

Monash University researcher Bob Birrell said it was only now becoming clear just how generous the 2010 deal was; tens of thousands of “warehoused” students had been put to the back of the queue but since 2011-12 the department had been deciding their skilled migration applications in large numbers.

This meant the new skilled migration program, with a design and rules supposed to better match visa grants to Australia’s labour market, was still suffering a big hangover from the “cooks and hairdressers” period of the mid-late 2000s.

Dr Birrell said he understood there were another 25,000-odd ex-students and their dependants still “warehoused” in the system.

The department said there was no requirement for it to decide within a given time any permanent visa applications lodged by these ex-students on special 485 visas.

A spokesman said the department could not “determine the likely anticipated date of finalisation for applicants in this cohort.

“This is dependent on the number of applications lodged in higher priority groups, complexities of cases and other factors including any change in the size or composition of the annual migration programme.”

The department was “working through a residual caseload” after the end of the transitional arrangements put in place by former immigration minister Chris Evans.

A Labor administration authorised the 2010 reform trade-off although it had inherited lax skilled migration rules, open to large-scale manipulation by overseas students, from the Howard years.

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Overseas Skills Registry - connecting overseas
skilled workerswith Victorian employers

The Overseas Skills Registry is a new online service making it easier for overseas skilled workers who have skills in demand to connect with Victorian employers.

The registry is designed to broaden overseas skilled workers' local networks, and support them to access job interviews and employment.

Using the registry, overseas skilled workers can create an online profile of their professional skills, qualifications and work experience. Victorian employers can access the registry and connect with individuals who have the skills and expertise they require.
The registry is open to Victorian nominated skilled migrants, international student graduates with previous professional work experience, and eligible overseas qualified professionals who have entered Victoria under any visa category. To be eligible to use the registry, candidates must:

Eligible individuals can register to create a profile on the Overseas Skills Registry and start connecting with Victorian employers.

Find out more at liveinvictoria.vic.gov.au/overseasskillsregistry

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Australia Announces Visa Provisions for Ukrainians

Given the volatile situation in Ukraine, Foreign Minister Julie Bishop and Immigration Minister Scott Morrison on 5th of March 2014 announced visa provisions to allow Ukrainian nationals in Australia to temporarily remain while their nation is under threat.
Ukrainian nationals who are currently in Australia on a visa due to expire and who may be affected by the unrest in Ukraine will be able to approach the Department of Immigration and Border Protection to make an application and receive an extension of their visa for a temporary period.
Subsequent applications may also be made if the situation of unrest in Ukraine is further deemed by the Government at that time to warrant a further extension.
Australian Government travel advice issued by the Department of Foreign Affairs and Trade was upgraded overnight for Ukraine. Australians thinking of travelling to Ukraine and the surrounding area, and those already there, are urged to reconsider their need to travel and are encouraged to log on to the Government's Smartraveller website.

We hope that you have found the information in this issue of our newsletter to be enriching and useful. Stay tuned for our next publication and if you would like to talk to us directly, please do not hesitate to email service@noborders-group.com. In addition, if you would like your contact details updated or removed from this distribution list or you know someone who would like to be added, please email me on the same address.


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