Friday, 6th of November 2015

 

Issue #1 November

 

TOP STORY

changes to working holiday visa
 

ISSUES OF THIS MONTH

Changes to Working Holiday Maker Visa scheme

 

Small Business are at risk too

 

Court: AAT Cannot Unreasonably Refuse Adjournment to Provide Information

 

Fraud Alert - ACS

 

Race on to file for citizenship, to avoid deportation

 

Immigration and passport control in Australia to be hit by another strike

 
 

Changes to Working Holiday Maker Visa scheme

Australia has announced changes to the popular working holiday maker visa scheme that is particularly aimed at young people staying and working in the north of the country.

Visa holders who secure work in certain high demand industries in northern Australia will be able to apply to work for a single employer for up to 12 months, compared to the usual limit of six months.

The changes will also apply to work in northern Australia in aged and disability care, construction and mining. The aim is to attract more young people to areas outside of Sydney where many tend to want to stay.

Further changes will follow in 2016 which will allow Work and Holiday (Subclass 462) visa holders to extend their stay in Australia by a further 12 months if they work for at least three months in agriculture or tourism in northern Australia.

Australia’s WHM visa programme encourages youth mobility and tourism by allowing young adults aged 18 to 30 years to have an extended holiday in Australia, during which they can offset their travel costs by engaging in short term work.

 
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Small Business are at risk too

Small business at risk too

Small Business Termination - Pregnant employees and Risk

Small Business Employers time and time again must battle many elements to their business, cash flow, investors, marketing, leases and product/service development. Government in a very limited way have built in safe guards for small business owners in employment legislation however those protections only go so far in relation to termination of employment.

The Federal Circuit Court case of Sagona v Piccoli Investments is an apt reminder of the price a small business can pay - and in particular how not to react to an employee announcing their pregnancy.

Sagona v Piccoli Investments

Ms Sagona was a salaried photographer and salesperson with Piccoli Photography, a small business based out of Melbourne. Ms Sagona had been employed for 12 years, the last 10 as a photographer. In August 2012, she announced she was pregnant. Four weeks later she resigned, alleging constructive dismissal.

After announcing her pregnancy Ms Sagona was allegedly told that she could not do photo shoots or have sales appointments beyond a time because it was not a 'good look' for customers to see a pregnant woman in the business. The business owners denied this.

Subsequently, the business decided that Ms Sagona should work longer hours.

The employers also:

  • demanded that Ms Sagona sign a "variation" to her contract, making her remuneration and ongoing employment contingent on the meeting of unattainable sales targets;
  • required her to work additional hours;
  • suggested that a return to part-time work after the conclusion of her maternity leave would not be "workable".

Ms Sagona resigned, claiming that she had been constructively dismissed (i.e. forced to quit) by the business' conduct.

Held: The Court found that the business had taken "adverse action" against Ms Sagona by dismissing her. While the employer had raised concerns about Ms Sagona's safety (such as working outdoors on long shoots and carrying heavy equipment), the Court noted that:

The business had never sought to obtain a medical opinion on Ms Sagona's fitness to undertake her regular duties. This meant that any judgement by the business that Ms Sagona was unable to perform the inherent requirements of her role as a result of the pregnancy, was "not based on objective evidence"

The employer's actions were taken "without reference" to sections 73 and 81 of the Fair Work Act 2009 (Cth). Importantly, these provisions govern the circumstances in which an employer can direct a pregnant employee to take unpaid parental leave, and transfer of a pregnant employee to a safe job, respectively. Both sections provide employers with the ability to request medical evidence of fitness for work and/or fitness to continue in the employee's position for a particular period.

Damages

The damages award in this case was considerable, including $164,079 for economic loss and $10,000 for distress, hurt and humiliation. In addition, the Court considered:

  • The need to discourage employers from demanding award-free employees work "all hours necessary"; and
  • The importance for women to continue in employment during pregnancy and continue in their careers after having a child

The Court awarded penalties of $45,000 to be paid by the business and $8,000 to be paid by each of the two individual owners as a result of the above considerations.

The Significance of this case for small businesses

This case is important because of the damages alone, which is one of the higher monetary awards for discriminatory conduct. But there are three other important aspects:

The first is that Ms Sagona sought penalties (as she is entitled to do) and that the Court decided that those penalties should be paid to her personally - rather than as consolidated Revenue. Those penalties totalled $61,000.

The second is the fact that the business owners were personal defendants, as persons knowingly involved in the contraventions. Not only did they have penalties imposed against them, but they were jointly ordered to pay the compensation along with the business.

It is important to note that it is increasingly more common for managers and business owners to be joined as personal defendants and if they are found liable, to have penalties imposed on them personally. This is true for prosecutions by the Fair Work Ombudsman as well and extends to other types of contraventions such as for a breach of the National Employment Standards or industrial instruments.

The third is that the defendants claimed that the business was small and in financial difficulty. However, this was not deemed a valid excuse by the court in determining the penalty.

It is vital for small business employers to be wary of General Protections matters and to be aware that they can also be joined as personal defendants if found liable for contravention.

NB Lawyers offer a Free 20 Minute consultation to all Employers and Business Owners. Call +61 3876 5111 or alternatively check out our website on www.lawyersforemployers.com.au for more information.

Written By

Jonathan Mamaril
Principal & Director,
NB Lawyers
07 3876 5111
jonathanm@nb-lawyers.com.au
LAWYERSFOREMPLOYERS.COM.AU

 

Court: AAT Cannot Unreasonably Refuse Adjournment to Provide Information

AAT cannot refuse adjournment

Is there anything you can do if the Administrative Appeals Tribunal refuses to grant your client an adjournment which would make it possible to provide information which demonstrates that the client satisfies the criteria for the grant of a visa?

What if the issue that is of concern to the Tribunal only comes up during the Tribunal’s hearing?

And what if the Tribunal refuses to grant an adjournment not because it is unsure that the applicant can supply the information which would satisfy the particular criterion for grant of the visa, but instead, the Tribunal refuses to grant the adjournment because it harbours “doubts” about whether the applicant satisfies a different, unrelated criterion?

These issues all came into play in a case that was decided by the Federal Court earlier this year, Pathak v Minister for Immigration and Border Protection (2015) FCA 683 (21 May 2015).

And the answer that can be found from this judgment is that if the Tribunal refuses an adjournment “unreasonably” - and as a consequence affirms a Departmental decision to refuse a visa - there is something meaningful that you can do: You can make an application for judicial review to the Federal courts, get the Tribunal’s incorrect decision “quashed”, and get the case sent back to the Tribunal for re-determination. When the case goes back before the Tribunal you can present the information or documentation that was identified to be relevant at the Tribunal hearing, and, all things being equal, demonstrate to the Tribunal that your client is entitled to the visa.

 

Fraud Alert - ACS

ACS fraud alert

The ACS is aware of organisations who are ‘selling’ ACS RPL forms and has in placemeasures to ensure that the integrity of the documentation remains intact.

ACS RPL forms are vetted to ensure the information is not plagiarised either from an external source or another applicants RPL form.

In accordance with the Skill Assessment Guidelines for Applicants

It is your responsibility to indicate when you have drawn on the work of others. Other people’s original ideas and methods should be clearly distinguished, and other people’s words, illustrations and diagrams should be clearly indicated regardless of whether they are copied exactly, paraphrased, or adapted.

Failure to acknowledge your source by clear citation and referencing constitutes plagiarism. All plagiarism will be assessed as not suitable and reported to the Department of Immigration and Border Protection.

If plagiarism is detected an application will be finalised as unsuitable and the application fee will not be refunded.

Any subsequent applications will need to be submitted as a new application and will require the new application fee.

 
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Race on to file for citizenship, to avoid deportation

Bikie gang members applying for Australian Citizenship

Following the governments swift action to deport hundreds of non-citizens with a ‘substantial’ criminal record, media reports say the "outlaw bikie gang members are rushing to file citizenship to avoid being deported."

It is estimated that some 400 people linked to organised crime on the federal government’s National Criminal Threat Database are non-citizens, according to a report in the Daily Telegraph. DIBP is in the process of cross-referencing people on such databases to determine if they could be deported.

The government has already cancelled the visas of over 500 foreigners, since July last year. The cancellations have given little or no regard to the length of time they spent in Australia nor the effect of the cancellation on their Australian born partner and children. All it seems to take for the minister to make the call to deport them is if they had been sentenced to a year in jail or were the subject of criminal intelligence suggesting they were a threat to the community.

Immigration Minister Peter Dutton said in just June he cancelled the visas of 57 criminals and had them removed from Australia or prevented them from returning to Australia.

DIBP figures revealed that New Zealanders make up more than half of the foreigners who have had their visas cancelled. This is followed by citizens of the United Kingdom.

 
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Immigration and passport control in Australia to be hit by another strike

Department of Immigration and Border Protection and  Australian Borders Force

Some employees of the Department of Immigration and Border Protection including the Australian Border Force, who are members of the Community and Public Sector Union (CPSU), will take part in protected industrial action at various work sites between 4 and 11 November 2015.

The Community and Public Sector Union (CPSU) have given notice of 24 hour work bans during this period, which will impact container/ cargo examination facilities and international mail facilities nationally.

The CPSU has also given notice of a 24 hour work stoppage on 9 November at international airports, ports, container examination facilities and international mail facilities nationally.

The Department has contingency arrangements in place to protect Australia's borders and minimise the impact on business operations. The Department is working closely with stakeholders to minimise the impact on business the travelling public and on cargo and mail operations and is ensuring appropriate contingencies are in place for visa and citizenship services. During protected industrial action, the health, safety and security of the public and our staff continues to be our priority.

We will continue to negotiate in good faith with all bargaining representatives to reach an agreement which is within our means, and meets the parameters set by the Australian Government Public Sector Workplace Bargaining Policy.

 
 

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"

 
 

No Borders Group

Email: service@noborders-group.com
Phone: (+61) 07 3876 4000

 
 

NO BORDERS Universal Migration
Level 4, 20 Park Road
Milton 4064
Queensland
AUSTRALIA