Friday, 23rd of January 2015 Issue #2 January
No Borders Newsletter

TOP STORY

Short Term Australian Visa

Issues of this month

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Residency requirements for Australian significant investor visa clarified

The Department of Immigration and Border Protection in Australia has issued new guidance and clarification of residency requirements for the country's significant investor visa programme.

This follows concerns that changes to residency requirement for the Subclass 888 Visa would affect applicants in the Significant Investor Visa stream.

Among these were changes in the pathway to permanent residency for people who obtain the four year provisional Subclass 188 Visa, specifically the announcement of a residency requirement for secondary visa applicants, for example family members, of 180 days per year.

The announcement of a new 180 days per year rule raised concerns that a new barrier had been introduced that might reduce the attractiveness of the visa programme.

Now the DIBP says that the requirement will be for the primary applicant to reside in Australia for 40 days per year or the secondary applicant (spouse) to reside in Australia for 180 days per year.

This residency requirement will be calculated cumulatively over the four year period of the provisional visa. According to advice issued by KPMG, that means 160 days over four years for a primary applicant or 720 days over for years for the secondary applicant (spouse).

There will be no residency requirement for all other secondary applicants. The new requirement is scheduled to take effect from 01 July 2015.

KPMG is also advising businesses that the period of stay for subclass 400 Temporary Work (Short Stay Activity) visas from has been extended from three months to six months. In addition, the visa validity has been extended to allow entry within six months of the visa being granted.

"The changes make these visas much more flexible for businesses, so will be welcomed by those businesses who need specialists at short notice for discreet short term periods," a spokesman said.

The firm pointed out that stays longer than three months will require a strong business case to show that employment conditions satisfy Australian workplace standards, and the activities will not adversely impact Australian workers.

Business will need to provide evidence about the nature and importance of a project, evidence that specialist skills are required, evidence of contractual obligations, and the number of Australians to be employed on the project and the time available to train an Australian to do the proposed work.

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Training Benchmark For 457 Visa

Training Benchmark for 457 visa

Many businesses from every industry have had their applications to sponsor employees under the Subclass 457 visa denied, simply for failing to submit sufficient evidence of meeting the training benchmark.

In order to be approved as a sponsor, an employer must be able to demonstrate that their business provides a certain amount of training to Australian employees. Specifically, the business must spend at least 1% of its payroll on training employees who are Australian citizens or permanent residents. Alternatively, the employer can make a contribution to an approved fund equal to or greater than 2% of the payroll.

Below are the exact words of the relevant legislative instrument:

A) Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business, and a commitment, by the business, to maintain expenditure in each fiscal year, to that level, for the term of approval as a sponsor.

OR

B) Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business, and a commitment, by the business, to maintain expenditure in each fiscal year, to that level, for the term of approval as a sponsor.

If your business is an approved sponsor under the 457 visa program, or is applying to be recognised as a sponsor, you may be able to make a contribution to a fund such as the Learning Potential Fund to satisfy your requirements for Training Benchmark A.

Training Benchmark A requires expenditure equivalent to at least 2% of the payroll of your business.

Alternatively, you may choose to procure or provide training for employees of your business who are Australian citizens or permanent residents, so as to satisfy Training Benchmark B.

Training Benchmark B requires expenditure equivalent to at least 1% of the payroll of your business.

Ascertaining the requirements to satisfy either Training Benchmark for a particular business involves a detailed assessment of the structure of the business as well as the nature of any training plan to be implemented by the sponsor. It is therefore advisable for sponsors and prospective sponsors to seek professional advice from a reputable migration agent who can help you to achieve a favourable outcome.

Remember that the cost of seeking professional advice may be far less than the cost in time, money and the chance of a future life in Australia if a visa is refused due to unprofessional work.

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How dismissing an employee for extended absence can backfire on you

How dismissing an employee can backfire on you

Dismissing employees for extended absence from work often may seem a necessary action to take by Employers. However, the circumstances behind the extended absence will play an important role in determining whether the dismissal is considered fair and just by the tribunal or the Court.

The federal court case of McGarva v Enghouse Australia Pty Ltd¹ held that an Employer is accountable for dismissing an employee that was absent for 10 months. The employee was suffering from cancer during that period which made him incapable of attending work.

The Employer argued that the employee was not protected from dismissal for being temporarily absent from work due to an illness or injury on the basis that his absence was extended for 3 months and he was not paid personal/carer's leave during the period of the absence.

However, the Court had an alternative view of the circumstances and came to the conclusion that the Employer did not dismiss the employee due to absence because of illness or injury, rather the reason behind the dismissal was in fact considered to be due to the employee suffering from a physical disability.

As a result, discrimination law was brought into play, which exposed the Employer to the discrimination standards in determining the fairness of the dismissal. Ultimately, the Court examined whether the employee was treated less favourably compared to an employee in the same or similar circumstances who did not have a disability and/or whether he was subjected to a requirement that he could not meet which can only be met by a person without a disability.

Despite the fact that the Employer could have defended the discrimination claim by arguing that the employee could not fulfil the inherent requirements of the job. The Court held that the evidence in this case suggested that the employee would have been able to fulfil the inherent requirements of the job with reasonable adjustments.

Employers need to be cautious when dismissing an employee based on absence resulting from illness or injury due to the fact that it will be critical to clearly identify and prove the reasons for the dismissal.

It is advised that in order to lessen the risk of a claim for unfair dismissal by the employee, you will need to:

  • Consider factors that will determine the impact of the dismissal on the employee, such as their employment history with you and their age; and
  • Provide the employee with the opportunity to respond to the reason for dismissal prior to proceeding with the dismissal.

Generally, as the Employer you will need to ask yourself the following questions prior to dismissing the employee for extended absence:

  1. Is the reason for the dismissal based on the employee not meeting your sick leave notice requirements?
  2. Is the reason for the dismissal due to the employee's absence extending for more than 3 months?
  3. Is the reason for the dismissal based on concluding that the employee's illness or injury (i.e. the reason for the absence) means that the employee can no longer perform the job?

If you answered yes to any of these questions, you will need to justify your decision of dismissal to the court bearing in mind the factors that will be considered crucial to your case, which will often require guidance from a lawyer. Consultation with a professional in Employment Law is strongly advised to obtain the required assistance and to tackle these issues.

NB Lawyers offers a FREE 20 minute legal consultation to all Employers.

For further information please contact Jonathan Mamaril, Special Counsel on 07 3876 5111 or email jonathanm@nb-lawyers.com.au.

Written by

Jonathan Mamaril
Special Counsel
NB Lawyers
jonathanm@nb-lawyers.com.au
www.lawyersforemployers.com.au


¹ (2014) FCCA 1522

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Australian officials clamping down on exploitation of backpackers

The Fair Work Ombudsman in Australia has issued a warning to growers, hostel owners and labour hire contractors that it will not tolerate the deliberate exploitation of backpackers and seasonal workers this summer.

The Agency has received fresh complaints about backpackers being lured to regional centres by dodgy labour hire operators, allegedly treating them poorly, bullying and sexually harassing them and ripping them off to the tune of hundreds of dollars.

It is reviewing fresh reports against one operator who allegedly charges backpackers $450 to find them jobs, and then pays them as little as 60 cents an hour to work on local farms. The operator reportedly charges up to $150 a week for backpackers to stay in sub-standard houses and caravans, with allegations of up to 32 people being accommodated in one home and 12 more sleeping in the garage.

Backpackers and seasonal workers are advised not to enter into work arrangements with people they meet at regional airports or bus depots and not to respond to questionable adverts where there is only a first name and a mobile number.

"These people will approach you with promises of guaranteed work picking fruit or vegetables and accommodation and transport. If it sounds too good to be true, then it probably is," said O'Shea.

They should also be aware that they should receive at least $21.08 an hour on a casual hourly basis and keep a diary of hours worked, the places where they work and the type of work they are doing.

"Enjoy your working holiday in Australia and remember that the growers rely on visitors such as yourself to harvest their crops but they should treat you well and make sure you are not exploited," added O'Shea.

The Fair Work Ombudsman is currently running two programmes aimed at protecting the rights of overseas and seasonal workers and ensuring employers, hostel owners and labour hire operators understand and comply with their obligations.

A three year Harvest Trail initiative by the Agency’s Regional Services Team is reviewing compliance within the fruit and vegetable growing industry across Australia as a result of persistent complaints and underpayments in the horticulture sector.

Simultaneously, the Overseas Worker’s Team is conducting a yearlong review of the wages and conditions of overseas workers in Australia on the 417 Working Holiday visa following a spike in complaints from backpackers over the past three years.

The Fair Work Ombudsman often receives complaints regarding sub-standard accommodation, or accommodation that is crowded and unliveable and these complaints are referred to local authorities such as the police, councils or even the fire service. Other issues include providers gouging or inflating expenses, such as transport.

In some cases, the Fair Work Ombudsman has encountered situations where a person is virtually bonded to a particular provider on the basis that they have been told that they will not have their visa extensions signed unless they "see out the season with them". These situations are often able to be addressed in conjunction with the local police and Department of Immigration and Border Protection (DIBP).

The most common issue encountered by the Fair Work Ombudsman is in relation to rates of pay or piece work agreements. Often this relates to piece work agreements that do not provide a person with the opportunity, or ability, to pick the required amount of fruit to make at least more than the casual hourly rate under the Horticulture Award. The current hourly rate for a casual fruit or vegetable picker under the Horticulture Award is $21.08.

A piece work agreement, which must be provided to the worker in writing, needs to be set at a rate that would allow an average competent worker to pick enough to earn 15% above the hourly rate.

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Numerous new airline routes to and from Australia announced for 2015

How dismissing an employee can backfire on you

Expats and those heading for a new life will have more choice flying to and from Australia in 2015 with a number of new routes being announced.

Etihad Airways, the national airline of the United Arab Emirates, has announced plans for a second daily non-stop service between Abu Dhabi and Melbourne from 01 August 2015 and is currently the only airline to offer double daily non-stop flights between Melbourne and the United Arab Emirates.

The move will add more than 4,500 seats per week to the route along with more flexibility, with two timings from which to choose and more than double the number of weekly flight connections.

Melbourne will now be linked to more than 50 cities across Etihad Airways global network, including 20 double daily services to popular destinations in the Middle East and Europe such as London, Manchester, Dublin and Beirut.

In conjunction with its equity partners, Etihad Airways will offer double daily services to Rome and Milan with Alitalia, Berlin and Dusseldorf with airberlin, and Belgrade with Air Serbia.

There will also be new daily one stop connections to destinations such as Edinburgh, Geneva, Madrid and Zurich on the Etihad Airways network, Stuttgart and Vienna operated by the Air Berlin Group, and Venice operated by Alitalia, and improved access to other key destinations such as Athens and Brussels.

“We commenced flights to Melbourne in 2009 and it has since become one of the strongest routes on our network. Together with Virgin Australia and our other partner airlines, we have built a large and loyal customer base which has asked us for more choice,” said James Hogan, president and chief executive officer of Etihad Airways.

“We will be the only airline offering double daily non-stop flights between Melbourne and the UAE, and twice daily one-stop services to a vast network of business and leisure destinations worldwide,” he added.

Australian Tourism and Major Events Minister John Eren said it will mean greater choice for leisure and business travellers. “Etihad Airways has close ties to Australia with significant investments in our workforce, infrastructure, tourism, and commercial partnerships across four states. Investing more resources into Victoria not only deepens this commitment but also delivers major economic benefits,” he explained.

Meanwhile, direct flights from Cairns to Singapore will start at the end of May 2015. Virgin Australia partner and Singapore Airlines’ regional wing SilkAir will operate the route on Mondays and Thursdays.

Cairns will be SilkAir’s second Australian destination after Darwin, with Virgin Australia Velocity members able to earn both points and status credits when travelling with SilkAir and onwards with Singapore Airlines.

A formal agreement has been signed to give Australia’s Gold Coast direct flights to some of China’s most populous regions within the next few months. China-based airlines will operate from Chengdu and Wuhan.

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 us on the same address.


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