NASSCOM GLOBAL MOBILITY

CONFERENCE 2013

2 MAY 2013

BANGALORE, INDIA

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Agenda

• Reforms to the 457 visa program

• Reform of the Employer Sanctions Legislation

• Increased powers for the Fair Work Ombudsman

• Mitigating Risk

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The Future of 457 visas

‘…the government has evidence that some employers – and I emphasise

that word, some – are using 457 visas to discriminate against locals. This

cannot continue.

'Australians deserve the chance to get local jobs on local projects and

the government is determined to make that happen.

'In this context, the government has decided to introduce a set of

changes to the 457 program to ensure employers give Australian workers

a fair go.

Brendan O’Connor Minister for Immigration and Citizenship

press release 23 February 2013.

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More quotes

“Fact: there is clear evidence that in some growing sectors,

importing workers on 457 visas is a substitute for spreading

important economic opportunity to Australian working people.

Outside the resource states of Queensland and Western Australia,

the single largest sector for temporary overseas work isn’t mining –

or even construction – it is information technology.”

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Quotes continued…

“One in twenty temporary overseas workers in Australia is doing IT

work in New South Wales alone.

It is just not acceptable that information technology jobs, the

quintessential jobs of the future, the very opportunities being

created by the digital economy, precisely where the big picture is

for our kids, should be such a big area of imported skills.”

Extract from Address by the Prime Minister –

14 March 2013

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Proposed reforms

• “Make business sponsors declare that they will commit to employing

Australian citizens

• Make training Australian citizens an enforceable requirement of 457

applications

• Make employers show that the position is genuine

• Restrict the number of workers that a business can sponsor

• Tighten the definitions of eligible positions

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Proposed reforms

• Strengthen the market rate provision to stop undercutting of local

conditions

• Tighten on-hiring arrangements so that sponsors cannot bring

someone in and then let them work for an unrelated company at a

different salary.”

Brendan O’Connor Minister for Immigration and Citizenship

press release 9 March 2013.

Additional Reform – English language requirements

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Employer Sanctions -

Background to the changes• What is the current law ?

– criminal offence to “knowingly or recklessly allowing an illegal

worker to work ..”

– applies to normal employment or independent contractor

arrangements

– burden of proof on Commonwealth

• Why change it?

– “Major crackdown on Employing Illegal Workers”

(Minister Bowen’s media release 21 July 2011)

– difficult to prosecute offenders

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What are the changes?

• New “non-fault” civil penalty provisions contravened if;

– Person allows (or refers), or continues to allow, another person to

work , and the worker is unlawful

– Person allows (or refers), or continues to allow, another person to

work in breach of the work-related condition on their visa

Knowledge / intention / state of mind not relevant

• Statutory defences

– were “reasonable steps” taken to check work rights ?

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What are the changes?

• “Allows to work” definition broadened

– definition now captures more complex business arrangements which

disguise illegal worker hire practices, eg

Company A has contract for services with Company B where B provides

staff to A for a 4 week period.

Company B subcontracts this work to Company C , and one staff member

of C who is sent to A is found to be unlawful.

Staff member employed / paid by C.

Company A and B have participated in an arrangement for performance of

work by illegal worker, unless defence available

(above scenario taken from Explanatory Memorandum)

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What are the changes?

• Company executive officers now potentially liable !

– New provisions introduced where civil and criminal offences may

be committed in some circumstances by company officers

– Similar provisions also exist for partnerships and officers of

unincorporated associations

– Liability of other company employees ?

• Extended investigative powers

– Notice to Produce and Search Warrants

– What can DIAC ask for and /or do if they turn up at your office ?

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Tiered enforcement model

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Education,

then

escalation.

Criminal Offences

Fair Work Ombudsman - role

• Inspectors to have power to monitor compliance

with 457 visa conditions

• Existing functions and powers - compliance with

workplace laws

• Joint DIAC/DEWR media release 18 March 2013

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Fair Work Inspectors - powers

• Enter premises

• Inspect any work, process or object

• Interview any person

• Require the production of documents e.g.

employee records and pay slips

• No privilege against self-incrimination

• Civil penalties for non-cooperation

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Implications

• Market rates specified in the visa approval -

allowances, deductions

• Duties and functions match job title and description

in the visa approval - substance over form

• Employee records and pay slips

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So what can you do to manage the risks ?

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• Are your current internal processes up to scratch ?

• Who has responsibility for checking work rights ?

• Educating staff – ensuring that incorrect advice is not provided

• Using VEVO

• Conducting Regular Audits

Yes, can work !

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Q&A

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THANK YOU !