Coalition Senators'
Additional Comments
1.1
Throughout
the course of this inquiry Coalition Senators have been very concerned about
the examples of unscrupulous employers who have exploited temporary work visa
holders in Australia, which must be condemned. Coalition Senators have no
tolerance for those who do the wrong thing, and believe the case has been made
for stronger laws to deter wrongdoing and better enable wrongdoers to be held
to account.
1.2
Coalition
Senators note that the Minister for Employment has established a Ministerial
Working Group, which includes the Minister for Immigration and Border
Protection, Assistant Treasurer, and Minister for Justice.[1]
The benefit of such a group is that it can address issues concerning vulnerable
visa holders which transcend the silos of government, over multiple portfolios.
1.3
While
Coalition Senators are broadly supportive of the Chair's Report they note that
many of the recommendations have been made before the Ministerial Working Group
established by the Government has had adequate time to respond to these issues
in the labour market.
1.4
Additional
comments have been provided below against some of the recommendations of the
Chair's Report as follows:
Recommendation
2
1.5
Coalition
Senators do not agree with this proposal as it could create an additional
incentive for temporary residents to remain onshore long-term and lead to
perverse market, social and demographic outcomes. For example, the existence of
streamlined pathways to permanent residence for international students prior to
2010 lead to poor social, demographic and labour market outcomes.
1.6
Skilled
migration visa settings are based on national need, and aim to target high
quality migrants who will use their skills and attributes to contribute
directly to Australia's economic well-being, and who are less likely to compete
with Australian workers in the labour market.
1.7
Australian
workers should have priority in the labour market, and this proposal adds
additional supply to the labour market without appropriate reference to labour
market need, impacts on Australian workers or the skill level of the temporary
visa holder.
1.8
Temporary
visa holders can apply for permanent residence at any time providing that they
meet the requirements for a permanent visa.
Recommendation
4
1.9
Coalition
Senators do not support this recommendation.
1.10
Transparent
and accountable consultation with stakeholders is a key part of the labour
agreement programme to ensure that employment and training opportunities for
Australians are not undermined and that the risk of exploitation of overseas
workers is mitigated. Prior to requesting a labour agreement, applicants must
consult with relevant industrial stakeholders. Relevant stakeholders include
the industry body which best represents their interests, the union which best
represents the interest of the applicant's employees, and any other agency or
community group that may be impacted by the proposed labour agreement, such as
schools and health services. The feedback from stakeholders is taken into
account in the determination of the labour agreement application.
1.11
The
requirement for consultation adds a significant impost on the applicant for a
labour agreement. A requirement to further consult stakeholders on the outcome
of the labour agreement would be of no value, but would add additional, unnecessary
impost on the applicant. The outcome of the labour agreement application may
also be of commercial sensitivity, and there may be privacy implications.
Recommendation
5
1.12
Coalition
Senators do not support this recommendation.
1.13
The
2014 independent review of the temporary work Subclass 457 visa programme (the
Azarias Review) recommended that the Temporary Skilled Migration Income
Threshold (TSMIT) be reviewed within two years. On 23 December 2015 the
Minister for Immigration and Border Protection, the Hon Peter Dutton MP,
announced that Mr John Azarias had been appointed to undertake an
evidence-based review of the TSMIT, and this Review has commenced. The Terms of
Reference for this review require consideration of a range of issues, including
factors that should determine the settings, the appropriate base level,
indexation and regional concessions for TSMIT.
1.14
Any
decision to amend or index the TSMIT should only be taken following
consideration of the evidence and recommendations made by this independent
review.
Recommendation
8
1.15
Coalition
Senators do not support this recommendation however would support a review of
the current exemption settings.
1.16
The
Migration Amendment (Temporary Sponsored Visas) Act 2013, which was
introduced and passed under the former Labor government, provides exemptions
from labour market testing in circumstances where the skill level of the
nominated occupation is equivalent to Skill level 1 or Skill Level 2 as
provided for in the Australian and New Zealand Standard Classification of
Occupations (ANZSCO) (except for protected qualifications or protected
experience).
1.17
Exemptions
to the labour market testing apply to specific occupations within skill levels
1 or 2 are prescribed by legislative instrument. The legislative instrument of
exemption for occupations in skill levels 1 and 2 is disallowable by either
house of the parliament.
1.18
In
introducing this legislation, former Labor Minister O'Connor provided for these
exemptions from labour market testing for higher skilled occupations in
recognition that labour market testing of these higher skilled occupations is
not always appropriate and may be impractical. Former Minister O'Connor also
noted in his second reading speech that he intended to exempt most highly
skilled occupations.
1.19
Further,
the 2014 Azarias Review of the integrity of the 457 programme noted that labour
market testing adds unnecessary regulatory cost.
Recommendation
9
1.20
Coalition
Senators note that this recommendation would be incompatible with Australia's
obligations under the World Trade Organization General Agreement on Trade in
Services (WTO GATS) Commitments, and free trade agreements.
1.21
Australia's
international trade obligations fall under two categories: World Trade
Organization General Agreement on Trade in Services (WTO GATS) Commitments, and
free trade agreements. Australia is bound under these international trade
obligations to provide exemptions to certain categories of workers, and the
adoption of this recommendation as currently worded would be incompatible with
these obligations
1.22
The
recommendation should be amended to include the following words "unless
Labour Market Testing would be inconsistent with Australia's Free Trade
Agreement obligations".
Recommendation
13
1.23
Coalition
Senators believe this recommendation is problematic and would create an
additional regulatory burden for employer sponsors of 457 visa workers,
limiting the ability of businesses to respond to labour shortages in a timely
and flexible way. It is impractical and would add unnecessary costs to small
businesses and regional employers.
Recommendation
14
1.24
Coalition
Senators do not agree with this recommendation as it would create an additional
regulatory burden for employer sponsors of 457 visa workers and be difficult
for Government to monitor and enforce. It is impractical and would add
unnecessary costs to small businesses and regional employers.
Recommendation
15
1.25
Coalition
Senators note that the $4000 value of this proposed levy amount is not based on
any evidence or underpinning. The 2014 Azarias Review of the integrity of the
457 programme recommended that the current training benchmarks be replaced with
a training levy of $400-800. This recommendation was accepted by the Government
and is under development by the Department of Immigration and Border Protection
and the Department of Education. Most Subclass 457 visa holders are employed in
professional occupations, so a focus on apprenticeships would not address skill
shortages experienced by Subclass 457 sponsors.
Recommendation
18
1.26
Coalition
Senators note that there would be significant practical hurdles with
implementing this recommendation.
1.27
Temporary
visa holders, by definition, are only in Australia temporarily; a Fair
Entitlements Guarantee (FEG) recovery process is likely to take some time, and
the amount of entitlements which could be recovered may not be justified.
1.28
As
the FEG is underwritten by the taxpayer, it should be a programme reserved for
the protection of Australian citizens, who may have decades of entitlements
payable after years of working.
Recommendations
23
1.29
The
Coalition Senators believe this recommendation is unnecessary, as a visa breach
does not currently invalidate employment, nor would it stop the remedies
available to an employee under the Fair Work Act.
1.30
It
is also very important that there are no incentives for workers, especially
those from overseas, to work in contravention of the Migration Act or their
visa requirements. Similarly we must make sure there is no benefit for
employers to engage those in breach of their visa obligations.
Recommendation
24
1.31
Coalition
Senators do not support this recommendation as it provides tacit endorsement
for visa holders to breach their visa conditions without recourse or penalty
and is inappropriate. Decision makers already have discretion, so visas are not
cancelled for minor or less serious non-compliance therefore the recommendation
is redundant.
Recommendation
25
1.32
It
is beyond the scope of this review to impose restrictions on future Free Trade
Agreements. Coalition Senators reiterate the significant benefits that flow
from entering into Free Trade Agreements.
Recommendation
28
1.33
Coalition
Senators note that the Department of Immigration and Border Protection is not
funded to provide visa holders with workplace entitlement training.
1.34
The
government proactively makes available information on employee entitlements and
protections. Unions and other groups are not prevented from supplementing this
information, but their actions in doing so should not be funded by public
monies.
Recommendation
29
1.35
Coalition
Senators do not support this recommendation. Migration regulations provide
discretion for delegates to not cancel a visa, and it is appropriate that these
discretions are exercised on a case by case basis. The cooperation of visa
holders with regulatory agencies in investigations and prosecutions, including
the Fair Work Ombudsman, is given strong weight by delegates in their
considerations to refrain from cancelling a visa. Furthermore, it would be
inappropriate for a government agency to withhold important information of
unlawful activity from another agency.
1.36
Coalition
Senators reiterate the importance of not providing incentives for workers to
work in contravention of the Migration Act or their visa requirements.
Recommendation
31
1.37
The
Coalition Senators do not agree with this recommendation. This is a review
recommending another review.
1.38
The
matters referred to in this recommendation are matters of policy for the
incumbent government, not an 'independent tripartite panel'.
Recommendation
32
1.39
Coalition
Senators do not agree with this recommendation as it would punish those labour
hire firms which are already complying with relevant laws.
1.40
While
there are undoubtedly a minority of labour hire firms which are doing the wrong
thing, what they are doing, in most cases, is already illegal. Coalition
Senators support the prosecution of these illegal operations.
1.41
Coalition
Senators also note that there are other inquiries underway at present into
labour hire companies and look forward to the resolutions.
Recommendation
33
1.42
The
Coalition Senators do not agree with this recommendation. The scope of this
inquiry did extend to the consideration of the ratification of international
treaties. Furthermore, the mere ratification of a treaty does not itself alter
any domestic laws.
Senator
Bridget McKenzie
Deputy
Chair
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