457 Visas Are in the News ... Again!
December 7, 2016
What is being said?
The Australian Labor Party has proposed a more rigorous regulatory approach to the Subclass 457 visa programme. This includes strengthening labour market testing requirements, notably, to require a position to be advertised for at least four weeks before a 457 visa can be granted. Other mooted changes include:
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LMT being extended to all positions (whereas LMT is largely restricted to engineering, nursing and trade roles);
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Further scrutiny on the quality of job advertisements;
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Restricting access to the Labour Agreement stream of the 457 visa programme for companies employing a certain proportion of 457 visa holders; and,
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Strengthening the enforcement of the registration requirement for occupations that require licensing and registration.
A few facts
Permanent entry to Australia is highly regulated through the Migration Programme planning levels. The programme is divided between humanitarian, skilled and family intakes and the current planning level for the 2016/2017 planning year is around 200,000 places.
Unlike permanent migration levels, temporary visa grants are unregulated. There are approximately 1.5 million temporary visa holders in Australia with work rights on their visas (i.e. this is excluding tourist visa holders, transit visa holders etc.). Of these 1.5 million temporary visa holders, there are approximately 150,000 primary and secondary 457 visa holders; constituting only 15% of the total. The primary cohort of temporary visa holders are New Zealand citizens. So why the laser focus on 457 visa holders?
In recent years, we have seen a number of media exposés on the exploitation of temporary visas holders in Australia by a limited number of Sponsors; notably the Baiada chicken matter, the 7Eleven scandal and the recent Fairfax media report concerning visitor visa holders working unlawfully on orchards in Northern Victoria.
Given these serious instances of foreign worker exploitation, greater focus of resources is needed on the compliance of businesses in employing those on temporary visas, including but not limited to Subclass 457 visas.
Upcoming changes
The Government has implemented a change to the working condition on the 457 visa whereby a 457 visa holder must not cease work for more than 60 days – a decrease from the previous 90 days. One of the motivations for this change was to reduce competition for Australians trying to find work.
Currently, there are approximately 650 occupations that are eligible to be used under the Subclass 457 visa programme. Both major political parties have undertaken to review this list in what appears to be a sensible measure to improve the integrity of the 457 visa programme.
What does this mean?
Should the changes to Labour Market Testing be introduced, specifically the requirement for all positions to be advertised for four weeks, the lead times for a Subclass 457 visa will increase to at least 12 weeks (taking into account current Departmental processing times). This is not a satisfactory outcome for a skilled worker visa programme that is designed to address short to medium skill shortages in the Australian labour market.
This measure will create a further challenge for multi-national companies wanting to move their staff around the world through intra-company transfers – often these programmes will move Australians to places around the globe, upskilling workers to bring those skills back to Australia while allowing foreign workers to gain exposure to the Australian market before moving on.
More focus should be placed on strengthening compliance and enforcement measures to ensure there is zero exploitation of temporary visa holders, whether they hold working holiday, student or 457 visas, in the Australian labour market thereby targeting nefarious employers of foreign nationals. This solution is preferable to increasing the regulatory burden to obtain the Subclass 457 visa which diverts valuable Departmental resources away from compliance and applies to all users of the 457 visa programme.
