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AUSTRALIA: Australian Government Revised Labor Market Testing Requirements in the 457 Visa Program

January 01, 2014/in Australia, News /by ABIL

In June 2013, the previous government of Australia decided to undo decades of progressive reform and introduce Labour Market Testing (LMT) into the 457 program. That government was defeated in September 2013 and the new government has substantially watered down the LMT regime with amendments passed on November 23.

The subclass 457 visa is the most commonly used visa to sponsor overseas skilled workers to work in Australia temporarily. Subclass 457 is uncapped and driven by employer demand. This generally means that employers will sponsor overseas workers more in times of high economic growth and low unemployment.

An application for approval of sponsorship must be accompanied by evidence in relation to LMT, unless the employer is exempt from doing so. Legislation specifies the manner in which such testing is to be carried out as well as the period in which LMT must have been undertaken. It also sets requirements relating to the sponsor’s attempts to recruit local labor. However, the November amendments provide for substantial exemptions from the LMT requirements.

The first such exemption provides that LMT is not required if it would be inconsistent with Australia’s international trade obligations, which fall into two categories:

  • World Trade Organization General Agreement on Trade in Services (WTO-GATS) commitments
  • Free trade agreement commitments

Consequently, sponsorship of citizens from WTO member countries would not require LMT. Similarly, intra-company transferees to Australia from a business established in a WTO country are exempt from LMT.

In addition to exemptions based on international trade agreements, sponsorship of executives and senior managers are exempt, as are specialists with two years of employment in Australia. Sponsors are also exempt from LMT for employees in positions that require tertiary qualifications. However, certain occupations cannot be exempted. The current list of occupations in that category includes a range of highly qualified engineers and nurses.

Finally, a sponsor may be exempt from LMT in the case of major disaster in Australia.

FACT SHEET ON THE 475 VISA

https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2014-01-01 09:25:202020-01-09 09:26:40AUSTRALIA: Australian Government Revised Labor Market Testing Requirements in the 457 Visa Program

AUSTRALIA: Australian Government Revised Labour Market Testing in the 457 Program

December 22, 2013/in Australia, News /by ABIL

In June 2013, the previous government of Australia decided to undo decades of progressive reform and introduce Labour Market Testing (LMT) into the 457 program. That government was defeated in September 2013 and the new government has substantially watered down the LMT regime with amendments passed on November 23.

The subclass 457 visa is the most commonly used visa to sponsor overseas skilled workers on a temporary basis to work in Australia. Subclass 457 is uncapped and driven by employer demand. This generally means that employers will sponsor overseas workers more in times of high economic growth and low unemployment.

An application for approval of sponsorship must be accompanied by evidence in relation to LMT, unless the employer is exempt from doing so. Legislation specifies the manner in which such testing is to be carried out as well as the period in which LMT must have been undertaken. It also sets requirements relating to the sponsor’s attempts to recruit local labor. However, the November amendments provide for substantial exemptions from the LMT requirements.

The first such exemption provides that LMT is not required if it would be inconsistent with Australia’s international trade obligations, which fall into two categories:

  • World Trade Organization General Agreement on Trade in Services (WTO-GATS) commitments
  • Free trade agreement commitments

Consequently, sponsorship of citizens from WTO member countries would not require LMT. Similarly, intra-company transferees to Australia from a business established in a WTO country are exempt from LMT.

In addition to exemptions based on international trade agreements, sponsorship of executives and senior managers are exempt, as are specialists with two years of employment in Australia. Sponsors are also exempt from LMT for employees in positions that require tertiary qualifications. However, certain occupations cannot be exempted. The current list of occupations in that category includes a range of highly qualified engineers and nurses.

Finally, a sponsor may be exempt from LMT in the case of major disaster in Australia.

FACT SHEET ON THE 457 VISA

https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2013-12-22 13:31:252020-01-22 13:32:03AUSTRALIA: Australian Government Revised Labour Market Testing in the 457 Program

AUSTRALIA: Further Changes to Permanent Entry Employer-Nominated Program

August 22, 2012/in Australia /by ABIL

The Australian government has announced a raft of changes to visa programs effective July 1, 2012. Changes to the employer nominated permanent residence visa program were outlined in the last ABIL Global Immigration Update. Changes to the General Skilled Independent visas and Business Skills visas are outlined below.

SkillSelect

As of July 1, 2012, the introduction of SkillSelect represents a significant change in how Australia manages its skilled migration program. According to the Department of Immigration and Citizenship (DIAC), the new model will allow Australia to “select the best and brightest skilled migrants from a pool of prospective migrants registered on the system.”

SkillSelect will enable skilled workers and business people to submit an Expression of Interest (EOI) to migrate to Australia by recording their details in an online database. An EOI will serve as a quasi-resume for intending applicants with the information accessible by Australian employers as well as state and territory governments, which may then nominate the individual for employment or for a skilled visa. The Australian government may also invite the person to lodge (file) a Skilled Independent visa application.

The objective of the new program is to ensure that Australia’s skilled migration program is based on the country’s economic needs. Through SkillSelect, the Australian government will be able to manage who is able to apply for skilled migration, when they can apply, and in what numbers. This is expected to streamline the program and lead to more efficient processing of applications.

It is also designed to help address regional skill shortages by allowing intending migrants to indicate in their EOI that they are willing to live and work in certain regions of Australia.

Expression of Interest

An EOI includes basic personal information, details of the person’s nominated occupation and relevant work experience, educational qualifications, level of English language ability, and the outcome of a skills assessment (by a gazetted assessing authority) in the person’s nominated occupation. For business skills visa applicants, an EOI requires details of the person’s business and/or investment experience.

An EOI will remain in DIAC’s database for two years. During that period, it will be accessible by employers looking to fill vacancies, state and territory governments looking to attract skills, and Australian businesses.

Changes to Business Skills Visas

DIAC has also announced changes to Business Skills visas, replacing the former program with a new “Business Innovation and Investment” scheme. The new visa structure is designed to attract significant migrant investment, entrepreneurial talent, and demonstrated innovative business history and skills to the Australian market.

As part of these changes, beginning on July 1, 2012, the current 13 Business Skills visa subclasses are consolidated into the following three:

  • Business Talent (permanent) subclass 132
  • Business Innovation and Investment (provisional) subclass 188
  • Business Innovation and Investment (permanent) subclass 888

The reforms include the following key changes:

  • introducing an innovation points test for provisional visa applicants
  • integrating the new Business Innovation and Investment visas with the skilled migrant selection model, SkillSelect (discussed above)
  • facilitating entry of entrepreneurs that have sourced at least A$1milllion in venture capital funding in Australia from a member of the Australian Venture Capital Association Limited
  • increasing asset thresholds to better align with the Australian business community

The suite of business visa reforms are intended to better align Australia’s immigration policy with countries such as the United Kingdom, Canada, Singapore, and New Zealand.

https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2012-08-22 13:32:152020-01-22 13:32:54AUSTRALIA: Further Changes to Permanent Entry Employer-Nominated Program

AUSTRALIA: Reforms to Permanent Entry Employer-Nominated Program Introduced on July 1

May 22, 2012/in Australia, News /by ABIL

The Australian government has announced reforms to the permanent entry employer-nominated visa program to be introduced on July 1, 2012.

Key reforms include:

  • removing the existing distinction between applications with respect to whether they are made by applicants who are in or out of Australia
  • replacing the current requirement of paying nominated permanent resident applicants at least the Minimum Salary Level (MSL) of $67,556 for IT-related occupations and $49,330 for other occupations with the need to pay the market salary
  • raising the upper age limit to less than 50 years; exceptions will apply for certain occupations and persons working in Australia for more than four years who were paid more than A$118,100 as of July 1, 2011
  • increasing the English-language IELTS test result to 6 for all applicants except those already in Australia and working for their nominating employer for the last two years; exceptions will apply for certain occupations, and nationals of five English-speaking countries (United Kingdom, United States, Canada, Ireland, and New Zealand)
  • introducing a single consolidated nominated occupation list (NOL) to replace the current sponsored employee 457 occupation list, the Employer Nomination Skilled Occupation List, and the State and Territory Sponsored Occupation List
  • integrating the permanent employer nominated visas with the skilled independent migrant selection model SkillSelect to be launched on July 1, 2012. Intending migrants who complete an Expression of Interest in migrating to Australia in SkillSelect can also indicate whether they are prepared to be sponsored for temporary residence or nominated for permanent residence by an employer.
https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2012-05-22 13:33:352020-01-22 13:34:09AUSTRALIA: Reforms to Permanent Entry Employer-Nominated Program Introduced on July 1

AUSTRALIA: Caution When Dismissing Sponsored Employees

January 22, 2012/in Australia, News /by ABIL

Sponsors should be cautious when considering dismissal of 457 visa holders. As with their Australian counterparts, 457 visa holders have access to employment remedies under the Fair Work Act. Even where a sponsored employee’s employment is terminated under an employment agreement, the dismissal may still be held to be harsh, unjust, or unreasonable. Under Australian immigration law, when a sponsored employee’s employment is terminated, he or she has just 28 days to regularize visa status or leave Australia.

If sponsors fail to comply with relevant workplace law, Fair Work Australia may order one of two sanctions: compensation or reinstatement. This could also affect the sponsor’s continued ability to sponsor expatriates.

When determining whether a dismissal is harsh, unjust, or unreasonable, Fair Work Australia takes into account, among other factors, whether:

  • there was a valid reason for the dismissal;
  • the person was notified of the reason;
  • the person was given an opportunity to respond to any reason related to his or her capacity or conduct; and
  • the person received a warning about unsatisfactory performance before the dismissal.

In Webster v Mercury Colleges Pty. Ltd., Fair Work Australia held that termination of a sponsored teacher was unfair because of the serious financial consequences to the teacher and the social dislocation that was inevitable as a result of his summary dismissal.

In Richard Patemella v Electroboard Solutions Pty. Ltd., the tribunal held that the dismissal was harsh because the employee was not given any warning that his employment was at risk, limiting his opportunity to mitigate his job loss and, as a result, his ability to remain in Australia.

The Fair Work Act requires employees in Australia, including sponsored visa holders, to lodge an unfair dismissal claim with Fair Work Australia within 14 days of their dismissal unless the tribunal is satisfied that there are exceptional circumstances for the delay. The recent decision in Usman Ali v Industries Services Training Pty. Ltd. held that the potentially severe impact on a 457 visa holder of losing his job constituted exceptional circumstances justifying a one-day delay in lodging an unfair dismissal claim.

https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2012-01-22 13:34:192020-01-22 13:35:00AUSTRALIA: Caution When Dismissing Sponsored Employees

AUSTRALIA: The Australian government announced a sponsor accreditation scheme starting November 1.

May 22, 2011/in Australia, News /by ABIL

As part of “Subclass 457” visa reforms, the Australian government has announced a sponsor accreditation scheme, available beginning on November 1, 2011, for certain standard business sponsors.

The Australian Government has announced plans to introduce Accredited Sponsor (AS) status, beginning on November 1, 2011, to facilitate the priority processing of company nominations and temporary entry subclass 457 visas for sponsored employees. AS status can be applied for either with a new sponsorship application or by variation of an existing sponsorship.

The new accreditation process recognizes that many Australian businesses have a long history of good dealings with immigration authorities, including lodging a high volume of good quality, decision-ready applications and an excellent record of compliance with relevant laws.

Once accredited, the sponsorship agreement will last for 6 years; this compares with the current 3 years for standard sponsors. The same form will be used as for an application to become a standard sponsor. If the criteria for AS status are not met, the application for standard sponsorship will proceed and be assessed in the usual way.

To qualify for AS status, sponsors must demonstrate several additional characteristics above the standard sponsorship requirements at the time of application. The sponsor must:

  • be a government agency, a publicly listed company, or a private company, with a minimum of A$4 million turnover per year for the last 3 years
  • have been an active 457 visa sponsor for the past 3 years (with a break of no more than 6 months, not due to any sanction)
  • have no adverse information known about them based on monitoring by Australian immigration and workplace authorities, including formal warnings and sanctions
  • have had at least 30 subclass 457 visa holders granted in the previous 12 months
  • have lodged a high level of decision-ready applications over the previous 2 years
  • have a non-approval rate of less than 3% for the previous 3 years
  • have Australian workers comprising at least 75 percent of their workforce in Australia and a commitment to maintain this level
  • have a Collective Agreement or Enterprise Agreement that covers all 457 visa holders earning less than A$180,000 per annum.

If a sponsor fails to maintain these characteristics, AS status can be revoked, resulting in loss of access to priority processing arrangements.

Australian ABIL member Katie Malyon has indicated that the last of these requirements for AS status means that few sponsors apart from State/Territory governments will be able to access the scheme.
For more information, click here.

https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2011-05-22 13:35:542020-01-22 13:36:49AUSTRALIA: The Australian government announced a sponsor accreditation scheme starting November 1.

AUSTRALIA: Impending Changes to Living Away From Home Allowance Rules

March 22, 2011/in Australia, News /by ABIL

Currently, employees living away from home to perform their employment duties in Australia may be eligible for tax-free benefits for reasonable housing and food costs under the Living Away From Home Allowance (LAFHA) rules. Changes have been proposed to start on July 1, 2011, to address the perceived abuse of these LAFHA tax concessions.

As a result of the proposed changes, employers of foreign workers in Australia will need to consider their recruitment and retention strategies, current contracts of employment, and whether to facilitate transition of current sponsored temporary residence employees to permanent residence.

Essentially, employers have three key options to consider:

  1. increasing the foreign worker’s remuneration so that his or her take-home pay is not affected;
  2. continuing to pay the LAFHA, which means the foreign worker will pay tax under the income tax regime; or
  3. renegotiating contracts of employment so that the foreign worker is reimbursed for reasonable accommodation and food expenses. In this case, the employer incurs a fringe benefit tax liability.
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AUSTRALIA: Floods in Australia

February 01, 2011/in Australia, News /by ABIL

The Federal Government announced on January 27, 2011, that it will fast-track 457 visa processing for workers engaged on rebuilding work in the wake of the devastating Queensland floods.

457 visa holders and eligibility for Disaster Income Recovery Subsidy

Centrelink is an Australian Government statutory agency that delivers a range of Commonwealth services to the Australian community. Centrelink has confirmed that 457 visa holders and other temporary visa holders who can demonstrate a loss of income from the recent floods in Australia may be eligible for the Disaster Income Recovery Subsidy.

Eligibility for a second 417 Working Holiday visa (WHV) based on flood damage clean-up work

Immigration authorities have advised that WHV holders may qualify for a second WHV visa if they volunteer or undertake paid work assisting in the clean-up of recent flood damage in a designated regional area of Australia. This excludes metropolitan Brisbane.

https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2011-02-01 13:37:362020-01-22 13:38:06AUSTRALIA: Floods in Australia

AUSTRALIA: Foreign Investment Review Board (FIRB) crackdowns on purchase of homes in Australia by certain temporary visa holders

January 22, 2011/in Australia, News /by ABIL

Increased FIRB screening and compliance measures, including a hotline and a pilot monitoring system, have been introduced to ensure that temporary visa holders comply with FIRB requirements. Statistics show 15 real estate transactions were prevented by FIRB and a further 73 proposed residential real estate purchases have been voluntarily withdrawn in the last 9 months.

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