Virginia, US
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| Teresa Liu

Senate Inquiry into Abuse of Foreign Workers

In late March 2015, the Senate passed a motion put forward by Labor and the Greens to establish a Senate inquiry to investigate the use of temporary working visas and the reported abuse and exploitation of foreign workers. The Education and Employment References Committee released on 17 March 2016 it’s 374 page report headed A National Disgrace: The Exploitation of Temporary Work Visa Holders, including 33 recommendations. This followed submissions made by Fragomen and others to the Senate Inquiry.
With such a highly charged title, many businesses will be concerned as to the impact of this report on the pipeline of proposed changes to come in 2016 and how this might be further impacted by the federal election.  Fragomen is currently reviewing this report and will provide further guidance and views in the very near future.
The background
It is worthwhile taking a step back to March 2015 and to be reminded that the establishment of this inquiry caused a good level of discussion in the business community and business associations such as the Australia Industry Group at the time. This is because the motion to establish this inquiry came a matter of days after the conclusion of a another inquiry commissioned by the federal government into the integrity of the 457 visa program, where that panel’s review found no credible evidence pointing to widespread rorting of the system, though it did recommend changes to improve the integrity and enforcement of the program more generally. Indeed, the then Assistant Minister for Immigration and Border Protection, Michaelia Cash, called the inquiry politically motivated by people who were ‘fundamentally opposed to the 457 skilled migration program’.
The Senate Committee ’s terms of reference were aimed to broaden  the scope of review to a wider class of visas and to more focus on the impact of the system  on overseas workers rather than local workers. The committee sought views on:
  • The relationship between the temporary 457 visa and other temporary visa types with work rights attached to them.
  • The impact on wages, conditions, safety and entitlements of Australian workers and temporary work visa holders.
  • The impact of Australia’s temporary work visa programmes on training and skills development in Australia.
  • Whether temporary work visa holders receive the same wages conditions, safety and other entitlements as their Australian counterparts or in accordance with the law.
  • The adequacy of monitoring and enforcement of the temporary work visa programmes and their integrity.
  • The role and effect of English language requirements in limited and temporary work visa programmes.
  • Whether the provisions and concessions made for designated area migration agreements, enterprise migration agreements, and labour agreements affect the integrity of the 457 visa programme, or affect any other matter covered in these terms of reference.
Some key recommendations at a glance
A number of recommendations are aimed to increase transparency into the use of relevant work visa programs, employers and contractors, while others are aimed at extending benefits that the government provides to Australians to overseas workers or increasing awareness of workplace rights with certain segments of temporary migrant workers.
Further recommendations are aimed at promoting further analysis into specific areas such as working holiday maker visas and labour hire contractors and those arrangements. Both of these programs and arrangements have come under much scrutiny with high media exposure over the last 12 months and actions taken independently to this review. One example is the Victorian Government in May 2015 establishing its own inquiries into the exploitation of foreign workers, particularly those on working holiday makers, and separately in September 2015, then establishing an inquiry into labour high firms including sham contracting and the abuse of visas to avoid workplace laws.
As it relates to the 457 visa worker program, recommendations have been made for ANZSCO skill level occupations 1 and 2 to no longer be exempt from labour market testing and that there be a prohibition on employers to “replace” local workers with 457 visa holders. Further recommendations include a training levy paid per 457 visa holder to an amount of $4000 per 457 visa worker, that the Migration Regulations to be amended to specify that labour market testing applies to all positions nominated by approved sponsors under labour agreements and Designated Area Migration Agreements, that employer sponsors of professional 457 visa workers are required to employ an Australian tertiary graduate in the same enterprise on a one to one basis, and that employer sponsors of a 457 visa worker (trade) demonstrate that 25% of it’s trade workforce are apprentices (with a threshold of at least 4 tradespersons).
There recommendations are of course significantly more profound in impact if ultimately confirmed by Government, but to some extent is not unexpected, given how the inquiry and committee was initially formed.
As we made clear in our submissions, Fragomen supports any changes that provide the Department with greater compliance resources to ensure the integrity of work visa programmes and restore public confidence in them. We are equally concerned however that this does not come at the expense of facilitating entry for the vast majority of businesses and applications that are compliant and low risk. It is always a balancing act that we appreciate Government has to traverse, and it will be interesting to see how the Government responds to the inquiry’s report in the weeks and months to follow.