Friday, 20th of March 2015

 

Vol 2

 

TOP STORY

 
 

 

 

Federal Government Announces Changes to 457 Visa

The Government will act on recommendations of a recent independent review of the 457 visa programme to strengthen integrity, ensure that Australian workers have priority and support employers with genuine skill shortages.

The Assistant Minister for Immigration and Border Protection, Senator the Hon Michaelia Cash, commissioned the review in 2014. The panel was tasked with examining compliance within the 457 programme by sponsors of overseas workers to ensure that the scheme was being used as intended - to address skill shortages which cannot be met from the Australian labour market.

The review panel consulted extensively across Australia - meeting with over 140 stakeholders and receiving 189 written submissions, including from businesses, unions, industry bodies and academics.

Key recommendations of the review include an increased focus on targeting employers who seek to misuse the programme, greater transparency around the department's sanctions processes and proactive sharing of information between key government agencies.

Government supports or supports-in-principle the majority of the review's recommendations, with the exception of the recommendation to abolish the requirement for labour market testing (Recommendation 2) which is noted, and the sub-recommendation (Recommendation 7.4) to expand the list of nationalities that are exempt from the English language requirement which is not supported.

 

Recommendation

 
 

Government Response

 
 

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.

 
 

Supported in principle

 
 
 

1.2

 
 

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

 
 

Supported

 
 
 

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.

 
 

Noted

 
 
 

3.1

 
 

That the Consolidated Sponsored Occupations List (CSOL) be retained as a list of occupations which are at Skill Level 3 and above, and that the CSOL 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 CSOL 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

 
 

Supported

 
 
 

3.2

 
 

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

 
 

Supported

 
 
 

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).

 
 

Supported

 
 
 

5.1

 
 

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

 
 

Supported

 
 
 

5.2

 
 

That the current TSMIT be retained at $53,900 p.a. but that it not undergo any further increases until it is reviewed within two years.

 
 

Supported

 
 
 

5.3

 
 

That the two roles currently performed by TSMIT (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% lower than the TSMIT.

 
 

Supported

 
 
 

5.4

 
 

That the government give further consideration to a regional concession to the TSMIT, but only in limited circumstances where evidence clearly supports such concession.

 
 

Supported

 
 
 

5.5

 
 

That in circumstances where the base rate of pay is below the TSMIT, 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 TSMIT be continued and made more visible to users of the programme and their professional advisors.

 
 

Supported

 
 
 

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.

 
 

Supported *

 
 
 

6.2

 
 

That any funding raised by way of a training contribution from sponsors of 457 visa holders be invested in: 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 programmes allowing employers to take on apprentices/trainees from target groups, including Indigenous Australians and those in rural and regional areas 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 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.

 
 

Supported

 
 
 

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 Education and Training (formerly the Department of Industry).

 
 

Supported

 
 
 

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.

 
 

Supported

 
 
 

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).

 
 

Supported

 
 
 

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.

 
 

Supported

 
 
 

7.3

 
 

That consideration be given to alternative English language test providers.

 
 

Supported

 
 
 

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.

 
 

Not Supported

 
 
 

7.5

 
 

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

 
 

Supported

 
 
 

8.1

 
 

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

 
 

Supported

 
 
 

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.

 
 

Supported in principle

 
 
 

9

 
 

That the government should explore how skills assessment could more appropriately recognise a visa applicant's experience.

 
 

Supported

 
 
 

10.1

 
 

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

 
 

Supported

 
 
 

10.2

 
 

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

 
 

Supported

 
 
 

10.3

 
 

That the department considers combining as many sponsorship classes as possible.

 
 

Supported

 
 
 

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.

 
 

Supported

 
 
 

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.

 
 

Supported

 
 
 

10.6

 
 

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

 
 

Supported

 
 
 

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.

 
 

Supported

 
 
 

11

 
 

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

 
 

Supported

 
 
 

12.1

 
 

That sponsors be required to include as part of the signed employment contract: a summary of visa holder rights prepared by the department, and the Fair Work Ombudsman's Fair Work Information Statement.

 
 

Supported

 
 
 

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 on their rights in Australia.

 
 

Supported

 
 
 

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.

 
 

Supported

 
 
 

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.

 
 

Supported

 
 
 

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.

 
 

Supported

 
 
 

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.

 
 

Supported

 
 
 

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.

 
 

Supported

 
 
 

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.

 
 

Supported

 
 
 

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.

 
 

Supported

 
 
 

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.

 
 

Supported in principle

 
 
 

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.

 
 

Supported

 
 
 

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.

 
 

Supported

 
 
 

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.

 
 

Supported

 
 
 

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.

 
 

Supported

 
 
 

19.2

 
 

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

 
 

Supported

 
 
 

20.1

 
 

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

 
 

Supported

 
 
 

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.

 
 

Supported

 
 
 

21.1

 
 

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

 
 

Supported*

 
 
 

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.

 
 

Supported

 
 
 

22

 
 

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

 
 

Supported in principle

 
 
 

* Supported subject to further consultation

 
 
Click here for 20 Minutes Free Consultation

Inclusion of Sponsored Family Visitor visa in Offshore Biometrics Programme

From 6 May 2015, as part of our global expansion of biometrics collection, the Department of Immigration and Border Protection (DIBP) will start collecting biometrics from visa applicants in designated countries who are applying for a subclass 600 Visitor visa in the Sponsored Family Visitor stream.

A list of designated countries and visa subclasses included in the biometrics programme is available.

Applications for the Sponsored Family Visitor stream visa will continue to be lodged and processed in Australia. However, applicants will need to attend their closest Australian Visa Application Centre (AVAC) or Australian Biometrics Collection Centre (ABCC) in person to provide biometrics (facial photograph and fingerprints) after the application has been lodged.

Affected applicants will receive correspondence from us requesting to undertake biometrics. Applicants must ensure that they take this correspondence with them to the AVAC/ABCC, otherwise they will not be able to provide their biometrics.

The AVAC/ABCC will charge a service fee for biometrics collection.

 
Click here for a Free Detailed Visa Assessment

TOP 5 PITFALLS FOR RESIDENTIAL CONVEYANCING

1. REVIEW AND UNDERSTAND THE CONTRACT

The REIQ and the Queensland Law Society approved Contract for Houses and Residential Land ('REIQ Contract') is the industry standard contract used in all residential conveyancing in Queensland.

The standard terms and conditions of the REIQ Contract have been continually reviewed and refined as various contractual disputes have arisen, been litigated and resolved. As a result, the standard terms and conditions are now extremely comprehensive, but also quite complex, and it is important that you and your acting solicitor fully understand their operation and effect.

Most conveyancing contracts also have a number of 'special conditions', which are specific to the particular property being sold or are requested by a party to the contract. These include 'sunset clauses' whereby if a particular event, such as the sale of an existing property, does not occur by a certain date (the sunset date), either party may terminate the contract.

It is vitally important that you and your solicitor understand both the standard clauses and any special conditions in your contract. Any uncertainty should be resolved with the other side as soon as possible.

2. UNDERTAKE ALL RELEVANT SEARCHES AND CAREFULLY REVIEW THE RESULTS

A vendor or seller only has a duty to disclose 'latent' defects in their title or ownership of the property - that is, those which the purchaser (or an expert employed on their behalf) is not reasonably able to discover on inspection of the property.

The buyer is given the opportunity to discover any 'patent' defects through undertaking its own enquiries and third party searches.

The REIQ Contract gives the buyer the opportunity to terminate or seek compensation from the vendor if certain defects are discovered though this search process. However, strict time limits apply which dictate when the buyer must exercise their rights or lose their benefit.

If the relevant searches are not undertaken and properly reviewed in a timely manner, the buyer may lose their right of termination or compensation from the seller. Furthermore, the property may be adversely affected by something which may affect the value of the property or the buyer's use and enjoyment of the property.

3. ACT EFFICIENTLY AND BE AWARE OF DEADLINES

Every stage of a conveyancing matter is governed by strict time frames. This is due to the very nature of the transaction, whereby both parties are usually motivated to complete the transaction in the shortest period of time, while allowing the buyer adequate time to undertake due diligence enquiries, searches, arrange for finance, etc.

Meeting these strict deadlines can be further complicated where cooperation is required from third parties such as building inspectors, search providers and financiers.

Therefore, it is vitally important that both the buyer and their solicitor remain apprised of these deadlines. The buyer's solicitor must monitor the progress of the conveyancing and maintain efficient systems and timetables to ensure that deadlines are met and acted on, or that an extension is requested if required.

Failure to meet such deadlines may result in the loss of contractual rights vested in a party to the contract to either terminate or seek compensation.

4. UNDUE RELIANCE ON CONVEYANCING CLERKS/PARALEGALS

It is with good reason that the Queensland Law Society mandates that all conveyancing matters be carried out under the strict supervision of an experienced solicitor, even if the majority of the procedural work and correspondence is handled by a conveyancing clerk or paralegal. History has shown that the bulk of professional indemnity/negligence insurance claims against law firms have arisen from conveyancing files.

No paralegal or conveyancing clerk, no matter how experienced, has the legal training to analyse and interpret certain contract conditions, particularly special conditions which may have been drafted by a solicitor acting for the other side.

There are also an ever-increasing number of regulatory limitations on a buyer's right to purchase property in Australia that most paralegals would not be aware of, such as the Foreign Investment Review Board rules, which may require preapproval for or even prohibit certain purchases by foreign nationals.

5. PRE-SETTLEMENT INSPECTIONS AND TITLE SEARCHES

In the time between the contract date and settlement, unscrupulous vendors may deliberately or inadvertently deal with the property in a way that is contrary to the buyer's rights under the contract, including encumbering the property, removing certain fixtures and fittings, or simply not maintaining the property in a proper state of cleanliness and repair.

The only way to ensure that there has been no change in the title or the physical condition of the property between the original date of inspection and the settlement date is to arrange for a pre-settlement inspection and title search. This is something that our firm recommends is always done as the final due diligence on the property prior to completing the purchase.

Whether buying or selling, please feel free to contact NB Lawyers today for an initial free consultation and quote on your conveyancing needs.

Written by:
Justin Russom
Senior Lawyer
NB Lawyers
justinr@nb-lawyers.com.au
lawyersforemployers.com.au

 

Finance, Insurance and Real Estate Lead Job Possibilities in Australia

People looking for jobs in Australia might find fewer opportunities in the coming months as the latest hiring intentions survey shows many have no plans to increase their workforce.

The latest outlook survey covering the second quarter of 2015 from Manpower suggests that employer intentions remain little changed in comparison for forecasts reported three months ago and at the same time last year.

The survey, which asks the hiring intentions of over 1,500 employers in Australia for the coming quarter, found that while 21% plan to increase hiring, the vast majority, 67%, will make no change to their hiring plan and 11% plan to decrease hiring.

According to Lincoln Crawley, managing director of the Manpower Group Australia the stable employment outlook reflects the mixed economic and market signals affecting business confidence.

'Low growth, falling wages and lower consumer confidence coupled with uncertainty about Federal Government leadership is causing many Australian employers to throttle down their hiring plans for the second quarter or stop them altogether,' he said.

'There are some bright spots. However, we're not seeing clear signs that hiring activity will gain any additional traction in the next three months, and employers are expecting to contend with another year of certain uncertainty in Australia,' he added.

Employers in the finance, insurance and real estate sectors reported the strongest outlook and opportunities for job seekers are favourable in the services industry which reported the strongest quarter on quarter increase of all industry sectors. Manufacturing is also showing encouraging signs of improvement, with a 2% increase quarter on quarter and a 7% increase year on year.

Public administration, wholesale trade and retail trade and transportation and utilities employers reported the weakest outlook quarter on quarter, with a slight decrease of 5%, 4% and 2% respectively. The wholesale trade and retail trade and transportation and utilities sectors also saw a considerable decrease of 10% year on year.

'Finance, real estate and insurance remains one of the best performing sectors. The Financial Services Inquiry and recommendations that were handed down earlier this year have put a spotlight on insurance, financial advice and superannuation. We're seeing larger companies beef up their risk and compliance teams due to the increased focus on the sector,' explained Crawley.

'Low interest rates and continued high demand have caused a boom in the Sydney and Melbourne housing markets driving work there. State government is also seeing a return to hiring in some of the larger states,' he added.

Comparing regions, employers in Victoria and South Australia reported the most positive increase to hiring in quarter two, reporting a modest and slight increase of 7% and 4% respectively.

The ACT market remains volatile, with employers reporting the weakest outlook of -5%, a decrease of six points quarter on quarter and 21 points year on year. Tasmanian employers reported the largest drop quarter by quarter, with a moderate decrease of 9%. Similarly, employers in Queensland also reported a moderate quarterly slide of 6%.

Meanwhile, hiring activity in the Northern Territory, Western Australia and New South Wales is expected to see little change from the previous quarter, with employers reporting outlook growth of 15%, 5% and 1% respectively.

'New South Wales is experiencing growth in construction and infrastructure project work and we expect to see demand for all roles in the state increase as employers compete for the best people. Also, the change of government in Victoria, and the announcement of spending on transport infrastructure is giving buoyancy to the market there,' Crawley said.

He pointed out that Australia is facing a rising unemployment malaise, with a fluctuating unemployment rate currently sitting around 6.4%. Youth unemployment is double that at 13.2% last month and unemployment is even high for those with tertiary education.

 
 

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.

"The only limits to being the person you truly want to be are your own self-limiting beliefs and thoughts. In every moment, you have the power to choose your life"

 
 

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