Friday, 6th of February 2015 Issue #1 February
No Borders Newsletter

TOP STORY

Skilled visa fraud

Issues of this month

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Immigration raids major firm over alleged visa fraud

Immigration investigators have conducted a series of raids on a multi-national firm working on major Australian mining and infrastructure projects as part of one of the nation's biggest inquiries into working visa fraud.

The raids targeted the offices of Murphy Pipe & Civil (MPC), with documents and other material seized.

The firm has allegedly assisted dozens of Irish workers fraudulently obtain 457 temporary skilled and other visas to work on key national projects, including the multi-billion dollar Queensland Curtis Liquefied Natural Gas project and Western Australia's Sino Iron project.

The probe was launched in response to revelations in Fairfax Media last year about the failure of the immigration department to investigate wide-scale visa rorting on the giant projects and in a range of other sectors.

The MPC inquiry is one of several investigations reopened in response to the Fairfax Media expose and forms part of a major and ongoing revamp of the way the department investigates alleged visa fraud.

It also raises questions about whether some of Australia's biggest infrastructure and mining players, including the company managing the Curtis LNG project, QGC, have failed to conduct thorough due diligence on the workforces supplied by sub-contractors such as MPC. QGC did not respond to questions.

The revelations have sparked fresh debate about the use of overseas workers to meet labour shortages, which the business lobby says is vital.

The federal government is considering relaxing entry requirements for short-term foreign workers in a move opposed by unions, which claim the overseas worker visa schemes cost local jobs and erode conditions.

Australian Council of Trade Unions president Ged Kearney said the action against MPC highlighted the need for reform of the visa system.

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Citizenship Tests More Accessible Outside of Australian Cities

Training Benchmark for 457 visa

A new partnership between Australia’s Department of Immigration and Border Protection and the Department of Human Services is making citizenship testing more accessible in regional areas.

The partnership is expanding citizenship services in regional Australia, making it easier for immigrants who are resident outside capital cities to sit a citizenship test.

Under the new outreach model, DIBP now refers regional clients to DHS sites, such as Centrelink and Medicare offices, for citizenship test appointments. These offices verify the identity of clients who want to apply for Australian citizenship, and facilitate interviews and tests locally. DIBP then decides on the citizenship application.

Previously, DIBP staff would periodically travel to regional areas and use Centrelink and Medicare offices to deliver citizenship tests to clients. However, this approach was demand driven and clients often had to wait until a sufficient number of applications had been lodged in their area for a visit to occur.

DIBP and DHS had a trial of the new regional delivery model in 2012 with outstanding success and clients surveyed during the trial period were strongly in favour of more regular appointments being available.

'Interviews with DHS staff also found they were very positive about the project and felt a strong sense of contributing to the promotion of Australian citizenship,' said citizenship programme management officer Elizah Abdul-Hamid.

The new model is now fully operational and more than 270 appointments are now available each week across 29 regional and remote centres.

As well as being more efficient, the new service delivery model also provides a more streamlined, consistent, regular, weekly service to regional clients, and removes workplace health and safety risks involved with DIBP officers travelling long distances, often with computing equipment and client files.

'The DIBP-DHS citizenship service delivery partnership is a positive example of working collaboratively with other government agencies to find more efficient ways of doing our business,' Abdul-Hamid explained.

The department continues to closely monitor application patterns and should a viable level of demand emerge, it will consider further locations in consultation with DHS.

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Partner Visa

Partner visa

A youthful and enthusiastic South African ‘John’ was travelling around world in the mid 80’s, the decade that gave birth to the internet and somehow people connected without Facebook.

Arriving in London on a dreary and brisk autumn day, John managed to secure a bed with a kind modest Londoners family. During this overnight sojourn he met Donna, the only daughter of his hosts, and was instantly captivated by her brunette locks and enchanting deep hazel eyes. After a cosy traditional tea with his proverbial inn keepers, John managed to find an intimate moment with Donna; they whiled away the hours ruminating about their passions and dreams, the story book evening ended in an impassioned embrace.

To paraphrase the lauded romantic playwrights, ‘happy days must always come to end’, with John leaving London to continue his European journey the star crossed lovers promised to keep in touch. Postcards were exchanged constantly for the first 3 months, then as many European affairs are wont to do, the post card romance slowed down and finally ended. Donna’s heart was broken but she valiantly moved on slowly letting the sorrow fade away with time.

Some 30 years on and now that the technological revolution has forever changed the way we connect, John and Donna were able to once again reunite. John’s life had taken a different path, he had had to work hard to pay for his education and married a fellow lawyer who worked in his office, meanwhile through all of his life Donna’s kisses still lingered in his dreams. Donna also got married and had 2 children then migrated to Australia.

Coincidentally both John and Donna’s partners had recently passed away. John and Donna reconnected via Facebook and helped each other through their difficult times. After all the tears of sadness and joy, the serendipitous couple came to terms with the realities of their predicaments and wondered how they could be together again when they lived on opposite sides of the world.

According to the Department of Immigration website the couple could not prove their relationship sufficiently to meet the requirements for John to come to Australia and live with Donna; at a loss they thought, ‘what can we do now’?

This is one of many stories we have encountered here at No Borders Group and luckily one of the many couples that we have been able to assist throughout the years, as we continue to help families come together from around the world.

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You'll be shocked at how much the government spends on offshore processing centres

Offshore Processing Centres

"It's disgraceful that families, including young children, are detained in shocking conditions offshore and the Australian taxpayer is left to pick up the multi-billion dollar bill," Greens immigration spokeswoman Sarah Hanson-Young recently told the Sydney Morning Herald.

Some $1.2 billion was spent last year alone to run detention centres on Manus Island, Nauru and Christmas Island, according to newly release Senate Estimate documents. This amounts to over $529,000 per detainee on Manus Island and Nauru which together currently hold about 1930 asylum seekers. The balance was spent on the Christmas Island detention centres which this year is expected to have its numbers dramatically reduced with the removal of children and their families to Darwin.

The figures were released in response to parliamentary questions and come just after the United Nations refugee agency criticised the recent High Court decision over the detainment of 157 asylum seekers on the high seas for a month. In a close 3:4 decision, the High Court ruled that the government's action was lawful.

The government has said it plans to reduce its spending on the offshore detention centres with big cuts to welfare services this year. However, Senator Hanson-Young told The SMH,"If the government really wanted to save money, they'd shut down these multi-billion dollar gulags on Manus Island and Nauru."

During 2014 the number of people who arrived by boat to Australia significantly plunged. Last year 164 people successfully made it to Australian land to seek asylum. This is in stark contrast to the 20,719 people who successfully sought asylum by boat in 2013, according to the report.

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Shades of Grey: When Employees Can Be Compelled To Work Reasonable Additional Hours

Salary employees, typically professionals working in skill, knowledge and process intensive industries can be compelled to work 'extra reasonable hours' where necessary if they:

  1. Are retained under a valid employment contract;
  2. Are paid on a salary basis; and
  3. Have an absorption or 'over-award-payment' clause included in their contract of employment.

This concept taken at face value may seem to be a straightforward legal principle, easy to wrap one's head around. Unfortunately employment law issues are rarely so black and white; often containing minefields of hidden considerations which even the most prudent of Employers can easily fail to take into account without the aid of professional legal expertise.

One such example of employers falling prey to these types of legal snares is the Fair Work Commission decision of Bradley Sheldrick v Hazeldene Chicken Farm Pty Ltd in which it was held that an employee could not be compelled to accept amended terms to his contract of employment which effectively forced a significant increase of additional hours worked by way of a compulsory on call-roster.

The Commission has held that a salary employee may be compelled to work any additional hours as is reasonably necessary to deliver performance as per the terms of their employment contract so it would be easy to assume that such amendments would not pose a problem.

However there exists a fine distinction between genuine requirements for additional work hours and attempts by employers to compel or otherwise strongarm employees into accepting variations in their contracts which substantially increase the amount of hours required to be worked. Non-compliance with an attempt to compel any employee in this manner is not a valid reason for dismissal and applications to the Fair Work Commission on this basis may result in an employer being liable for damages for any loss of income experienced by employee as a consequence.

There is no definitive answer to what constitutes 'reasonable additional working hours' with this question often being decided on a case by case basis taking into account the relevant, unique circumstances of each matter. Consultation with a specialist in the area of employment law is strongly advised when dealing with these types of 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
07 3876 5111
jonathanm@nb-lawyers.com.au

Website: www.lawyersforemployers.com.au

Work Reasonable additional hours

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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