DISSENTING REPORT BY COALITION SENATORS
Framework and
operation of subclass 457 visas, Enterprise Migration Agreements and Regional
Migration Agreements
Introduction
1.1
Coalition Senators believe that Australian workers should, as a
priority, be adequately resourced to enable them to be up-skilled and
empowered, to gain meaningful employment.
1.2
Australian
businesses overwhelmingly prefer to hire Australian workers in preference to overseas
workers on the basis that it is more economical and less complicated to fill
skill requirements from the local workforce.
1.3
There is a
shared consensus across business and the community that Australia's skilled and semi-skilled
migration program
should only be employed to supplement our domestic workforce where necessary.
1.4
The Coalition
does not consider that an effectively managed temporary labour migration
program will threaten Australian jobs. Rather, it is an important tool to
secure the future of businesses and grow employment opportunities to enable
business to employ more Australians.
1.5
The
Australian skilled and semi-skilled migration program should be sufficiently
robust to ensure that the employment opportunities of Australians must always
be protected, whilst recognising that an appropriate and sustainable human
capital strategy for Australia must be readily available to safeguard business from
labour and skills shortages.
1.6
The 457 visa
is the dominant component of Australia's temporary skilled migration program.
It is designed to provide a prompt response to fluctuations in demand for
skilled and semi-skilled workers where such demand cannot be met by the
Australian workforce.
1.7
An effective
policy for temporary skilled migration is vital to the efficient operation of
the labour market and has the capacity to deliver significant economic benefits
at a national and regional level.
1.8
Foreign
workers on 457 visas account for approximately one per cent of Australia's
labour force.[1]
and account for approximately two per cent of our skilled workforce.
1.9
At these low levels
it is both unrealistic and naive to suggest that the 457 skilled migration
program is flooding the national labour market with foreign workers.
1.10
There is significant
evidence to show that 457 visa holders make a positive economic contribution to
the economy through the payment of taxes and the spending of wages, whilst in
Australia.[2]
It is also relevant to acknowledge that 457 visa holders are required to pay
for health care insurance and are not entitled to access government welfare
programs.
1.11
Australia
faces an increasing labour shortage and responding to this labour challenge in
a positive manner is a key productivity issue for Australia that cannot be
ignored.
1.12
The ongoing
demand for labour and skills and the challenges that they present cannot be
underestimated by Government and failure to effectively respond to identified
labour shortages will negatively impact on the national economy.
1.13
The failure
of the Labor Government to develop appropriate human capital strategies is all
the more alarming against the background of numerous projects across the nation
which could be jeopardised by labour shortages.
1.14
Included in
this pipeline are projects to the value of (approximately):
-
Western
Australia: $293.9 billion worth of projects;
- Queensland: $199.1
billion worth of projects;
- New South
Wales: $84.6 billion worth of projects;
- Victoria and
Tasmania: $57.6 billion worth of projects;
- South
Australia: $50.1 billion worth of projects; and
- Northern
Territory: $43.5 billion worth of projects.[3]
1.15
Currently
across Australia there are approximately 259 approved projects with a value of
$446.4 billion, while a pipeline of 163 less advanced projects will potentially
deliver a further $282.4 billion of investment.[4]
1.16
The
National Resources Sector Employment Taskforce has predicted there could be a shortage of skilled
tradespeople in the resources sector of approximately 36 000 by 2015.
[5]
1.17
Effectively
addressing labour shortages through skilled and semi-skilled migration programs
is not a new phenomenon in Australia.
1.18
The Howard
Government's record of strong economic management was supported by sound policies
designed to provide flexibility for Australia's migration intake and to serve
the national interest. These policies included options to assist business to
address skills shortages.
1.19
The Howard
Government oversaw an increase in the proportion of skilled migration in
Australia's permanent migration program, from around 30 per cent when it
assumed office in 1996 to almost 70 per cent when it left office in 2007.
1.20
The
introduction by the Howard Government of the 457 temporary skilled visa program
ensured greater responsiveness and flexibility in responding to fluctuating
labour demands.
1.21
In contrast
to the Howard Government policies which successfully addressed labour shortages
through skilled and semi-skilled migration programs, the current Labor Government
has burdened the 457 visa program with unnecessary red tape and has effectively
locked many regional areas out of the program. As a result of the mismanagement
of the 457 visa program, business has been frustrated and inconvenienced in its
attempts to address labour shortages.
1.22
To
accommodate Australia's growing requirements for skilled labour, it is critical
for the Government to recognise the need to implement sound policies that can
assist in immediately addressing the labour shortages that business and
industry are experiencing, in particular by making the present 457 visa
program more efficient and user friendly. Up-skilling of Australian workers,
along with supplementation through an effectively managed 457 visa program,
will assist in ensuring the creation of long-term jobs into the future.
1.23
Australia has
been a successful and prosperous nation in large part due to its skilled and
productive workforce. It is critical that appropriate policies be implemented
if Australia is to have a workforce that is capable of ensuring the nation's
strong growth and continued economic success.
1.24
It is clear
from an objective analysis of the evidence given to the inquiry by employers
and employer related groups that the current Labor Government has failed to
implement appropriate policies to address current and future labour shortages
in Australia.
1.25
The Labor
Government's lack of appropriate workforce policies has created a situation
where the Australian labour market is unlikely to produce the stable and
reliable source of labour required to meet both the future short- and long-term
demands of business and industry.
1.26
The former
Rudd Government and the current Gillard Government, in responding to union
objections to the current 457 visa program, have diminished the effectiveness,
reliability and integrity of Australia's skilled and semi-skilled migration
program.
Terms of Reference
relating to Enterprise Migration Agreements and Regional Migration Agreements
1.27
The terms of
reference of the inquiry also refer to Enterprise Migration Agreements (EMAs)
and Regional Migration Agreements (RMAs).
Enterprise Migration Agreements
1.28
The National
Resources Sector Employment Taskforce (taskforce) reported the resources sector
could be 36 000 tradespeople short by 2015.[6]
It advocated the establishment of EMAs for mega resource projects.
1.29
The taskforce's
recommendation was accepted by the current Government and was strongly
supported by the Coalition.
1.30
The former
Minister for Immigration and Citizenship, Minister Bowen, announced the
introduction of EMAs on 10 May 2011.[7]
1.31
Subsequent to
Minister Bowen's announcement, the Government developed the EMA program to
assist Australia overcome both temporary and acute labour shortages for
positions which are unable to be filled by Australian workers in the
high-performing sectors which currently underpin the national economy.
1.32
EMAs are
project-wide temporary overseas migration arrangements for large-scale resource
projects that are intended to address the skilled labour needs of the resource
sector.[8]
EMA's are designed to provide a strategic practical solution to a
complex skilled labour shortage issue for large-scale resource projects in
Australia.
1.33
Coalition
Senators strongly support the introduction of EMAs and believe that these agreements
can play a crucial role in assisting Australia manage temporary and acute
labour shortages affecting major resource projects that contribute
significantly to the national economy.
1.34
EMAs provide
a flexible approach to short-term human capital needs, ensuring a balance in
the supply of labour between Australian and foreign workers, based on the
capacity of the existing workforce.
Regional Migration Agreements
1.35
The
Government announced the introduction of RMAs in May 2011 as part of the 2011-12
Budget proposals. RMAs are designed to assist resource projects in regional and
remote areas that are impacted by labour shortages.
1.36
In
introducing RMAs, the Government envisaged that they would enable local
employers to sponsor workers from outside Australia where they have a genuine
need for labour assistance, while ensuring Australian workers remain the first
choice. The agreements were intended to have a strong focus on fostering
training initiatives for Australians.[9]
1.37
RMAs provide an important way to support regional skill shortages
where those shortages extend beyond an individual enterprise and also impact on
other service organisations in a community. This situation can often be found
in large-scale resourcing projects where a rapid growth in a resources company
quickly outstrips local service industry capacity. Where this occurs in
locations remote from a ready source of workers, labour supply and skill
shortages in the services area can quickly emerge.
Government's failure to progress
EMAs and RMAs
1.38
The Labor Government's
failure to effectively progress EMAs and RMAs is an indictment on the
Government and an indication of their lack of genuine commitment to address the skill needs of the resources sector.
1.39
Since the
Government announced its intention to establish EMAs and RMAs a number of
Australian unions, with strong links to the Government, have mounted an
aggressive media campaign opposing these agreements.
1.40
Despite the
Government's earlier claims to support EMAs and RMAs to address the skilled labour
needs of the resource sector, the Government appears to have succumbed to the negative
union campaign, as to date, only one EMA has been given in-principle support, although
it is not yet operational, and no RMAs have been formalised.
1.41
EMAs and RMAs are of no benefit if it involves long, drawn out
processes.
1.42
Sadly, this has been experienced by the only RMA announced to
date between the Commonwealth and the Northern Territory (NT). The RMA was
announced many months ago but turning this into an actual agreement has been a
slow and frustrating experience for the NT government.
1.43
Despite Coalition
support for EMAs and RMAs, the evidence given to the inquiry indicates that
business and, in particular, the mining industry are both frustrated and
disappointed that, despite 22 months having elapsed since the Government
introduced EMAs, it has failed to negotiate a final agreement with any
organisation.
1.44
Coalition
Senator's concerns regarding the Government's failure to effectively progress
EMAs and RMAs were shared by a number of submitters to the inquiry.
1.45
The Business
Council of Australia (BCA) stated in its submission:
The Committee should enquire as to why the guidelines for the
EMA submissions, released in 2011, are no longer available on the Department of
Immigration website. Removing program guidelines from a government website
without explanation does not send a positive signal to investors already wary
of chopping and changing government policy as it relates to major project
investment in Australia.[10]
1.46
The submission
of the Australian Chamber of Commerce and Industry (ACCI) observed:
Evidence in relation to the operation of Enterprise Migration
Agreements and Regional Migration Agreements cannot be presented due to the
unnecessary and largely political delay in their implementation.[11]
1.47
The Chamber
of Commerce and Industry WA submission noted:
While CCI supports the EMA instrument, the complexity to
establish an agreement has proven to be difficult.[12]
1.48
Similarly, the
WA Government in its submission advised that it was:
...frustrated with the continual delays in the release of the guidelines
for this program since its announcement...The State Government has been
approached by potential applicants for an RMA but the lack of guidelines is
limiting the extent to which the State can provide the necessary support.[13]
Compelling evidence given in
support of the EMAs and RMAs
1.49
Coalition
Senators also note the compelling evidence given in support of EMAs and RMAs.
1.50
In the Master
Builders Australia (MBA) submission, Mr Wilhelm Harnisch, CEO, stated:
The terms of reference for the Inquiry also refer to
Enterprise Migration Agreements and Regional Migration Agreements. We
understand that there is only one signed EMA and no RMAs so it [is] difficult
to comment on their operation. However, Master Builders supports this framework
as an appropriate one for allowing a degree of extra flexibility for e.g. very
large resource projects.[14]
1.51
Mr Simon
Bennison, CEO, Association of Mining and Exploration Companies (AMEC), stated:
AMEC considers that EMAs are a valid process and provide
another avenue in which to access high numbers of skilled labour.[15]
1.52
BCA stated:
...it will be important to continue to offer an efficient EMA
program that will allow 457 visas and EMA's to remain a flexible and fast means
of addressing skills shortages on eligible projects given the important of
timeliness or appraisals to arranging project finance and the timeliness of
work schedules to project success.[16]
1.53
ACCI observed:
These schemes reflected good policy and they should be
progressed as soon as possible to assist large projects and regional areas
crying out for labour.[17]
1.54
The submission
of the Chamber of Commerce and Industry WA (CCIWA) also addressed the issue of
EMAs, noting:
... [CCIWA] is supportive of this instrument and commends the
Federal Government for working with industry to design the EMA. Industry was
concerned that it would be unable to adequate resource major projects if there
was not a supply of skilled labour available.[18]
Coalition Senators' conclusions on
EMAs and RMAs
1.55
Coalition
Senators support EMAs and RMAs.
1.56
They note the
supportive comments of the Shadow Minister for Immigration and Citizenship, Mr
Scott Morrison, MP, who is on the record as stating that 'if backed up and
competently implemented, EMAs and RMAs represent good policy'.
1.57
EMAs and RMAs
should be available to play a crucial role in assisting employers manage
temporary and acute labour shortages affecting major resource projects that
contribute significantly to Australia's economy. These agreements provide a
flexible approach to short-term human capital needs, ensuring a balance in the
supply of labour between Australian and foreign workers, based on the capacity
of the existing workforce.
1.58
The most
effective way to ensure an ongoing availability of jobs for Australians in the
resources sector is to create a business climate which encourages investment in
developing Australian resource assets by offshore multinationals and Australian
companies.
1.59
Actions which
discourage investors doing business in Australia will potentially have a
profound effect on our economy and employment opportunities.
1.60
Coalition Senators therefore recommend that the Government instruct the
Department of Immigration and Citizenship (the department) to process in a
timely fashion the EMAs and RMA that are currently lodged with the department.
Recommendation 1
1.61
Coalition Senators recommend that the Government instruct the Department
of Immigration and Citizenship to process in a timely fashion the EMAs and RMA
currently lodged with that department.
Deliberate campaign to undermine 457 visa program
1.62
Over recent
months, the Government and elements within the union movement have run a media campaign
claiming abuse in the 457 visa program and have resorted to making statements
aimed at demonising both 457 visa holders and their employers.
1.63
The Minister
for Immigration and Citizenship (the Minister), the Hon Brendan O'Connor,
MP, claimed on 28 April 2013 that there have been in excess of 10 000
cases of abuse in the 457 program. As a result of these alleged rorts the Minister
committed the Government to introduce legislation to crack down on the use of
457 visas.
1.64
Coalition
Senators note that the Minister's claim of 10 000 cases of abuse in the
457 program equated to approximately 9 per cent of the total number of
principal visa holders in Australia at 30 April 2013 (108 810).[19]
1.65
In
scrutinising the obvious exaggeration and un-believability of the Minister's
claim of 10 000 cases of abuse in the 457 program, the Coalition
repeatedly called on the Minister to produce evidence to substantiate his
claims.
1.66
It is
unsurprising that the Minister has failed to produce any evidence. In
attempting to justify his exaggerated comments alleging abuse of the 457 visa program,
in March 2013 in the House of Representatives the Minister referred to a department
document which focussed on strengthening the integrity of the 457 visa
program, provided to his Ministerial Advisory Council on Skilled Migration
early this year.
1.67
The Coalition
Shadow Minister, Mr Scott Morrison, MP, subsequently obtained a copy
of this document under Freedom of Information and challenged the Minister on
the veracity of his original allegations.
1.68
Contrary to
the Minister's false claims, the document did not suggest any widespread rorting
or concerns with the program.[20]
1.69
Following the
Shadow Minister's challenge to produce factual evidence that there have been in
excess of 10 000 cases of abuse in the 457 program, the Minister subsequently
admitted that he had made this number up and that his allegations were not
based on any authoritative statistics or other probative evidence.[21]
1.70
Coalition
Senators note that the concerted negative campaign by Minister O'Connor and a
number of unions alleging abuse in the use of 457 visas was strongly criticised
by industry groups, labour market experts and the Migration Council of
Australia (MCA).
1.71
In May 2013,
the MCA released a landmark report on the 457 visa program, including analysis based on a survey of 3800 visa holders and 1600
businesses. It found that only two per cent of foreign workers were
being underpaid.[22]
1.72
As stated by
Ms Carla Wilshire, CEO, MCA:
...the findings show that the 457 visa program is critical
in keeping Australia competitive in an era when industry is global and 98 per
cent of innovation happens outside of Australia'.[23]
1.73
In its
submission, the Australian Industry Group (Ai Group) stated:
The current debate over the program has unfairly focused on
the relatively few employers who do not meet their obligations. In our view,
those employers should face whatever sanctions are available. However, no
evidence has been presented which points to widespread or systemic abuse and we
strongly object to the tone of the public debate which has had the effect of
vilifying both employers and those who themselves hold 457 visas.[24]
1.74
The BCA submission
observed:
The unsubstantiated claims by the government of excessive
growth and widespread rorting in the temporary skilled migrant 457 visa scheme
are harming our international reputation and risk undermining a program that is
vital for the economy. The facts are that there are 105,000 primary 457 visa
holders performing critical roles in Australia, which is less than one per cent
of the workforce, and that number fell in March as visa grants declined...If
there is evidence of systemic rorting then it should be produced, otherwise the
government should simply deal with any employers who are found to be abusing
the system.[25]
1.75
The BCA also stated:
The government's changes to the 457 visa scheme announced in
February were said to be in response to excessive use and so-called rorting,
but with little justification presented. Individual visa holders or employers
not complying with the legislation should be dealt with directly. Ad hoc changes
to the rules only add cost, undermine business confidence and slow business
activity.
1.76
The ACCI
submission stated:
Given the importance of skilled migration, ACCI has become
increasingly alarmed at recent policy announcements and public commentary
around important elements of migration. Worthy programs such as 457 visas, EMAs
and RMAs have, in recent months, become subjected to a series of
unsubstantiated claims of widespread rorting and have been used to invoke
parochial and even racist sentiment with claims of foreign workers 'stealing'
jobs from unemployed Australians. ACCI feels that a careful, considered
approach, based on clear and substantiated evidence, is needed to ensure that
we maintain the value and integrity of the schemes and don't further harm our
reputation overseas as a good destination to do business, work or learn.[26]
1.77
The
Australian Mines and Metals Association submission stated:
...the recent demonisation of 457 visa workers is extremely
damaging. AMMA is particularly concerned at the politically charged context in which
the government announced further changes to the system for 457 visas, and the
lack of essential consultation with industry as a critical interest in the
effective operation of both short term and ongoing skilled labour migration.
a. The depiction of skilled migrants as foreigners that need
to be 'put at the back of the queue', and that Australians are being 'discriminated
against', is base rhetoric that borders dog-whistling and invites allegations
of industrial xenophobia.
b. These emotive claims also ignore the reality that current
rules require labour to first be sourced from the local workforce.[27]
1.78
The Ernst
& Young submission noted:
Recent sensational media reports about the subclass 457 visa
program are unhelpful to a rational public dialogue and discussion about the
appropriateness of Australia's skilled migration program. The program is
important to the needs of business to fill temporary vacancies with skilled
foreign workers. Records published by the Department of Immigration and
Citizenship indicate that there are rare and isolated instances of concern in
the program. It is essential that the current sanctions regime deal with
inappropriate use of the program.[28]
1.79
The Migration
Institute of Australia, in its oral evidence at the Inquiry, confirmed that the
actual statistics did not support the Minister's false claims:
Senator CASH: Ms Chan, you would be aware that the Minister,
Mr O'Connor, claimed that there were at least 10,000 rorts occurring in the 457
visa system, which was then proven to be a 'guesstimate'. Mr Sheldon of the TWU
this morning threw a rounder figure of 100,000 breaches of human rights in
relation to the 457 visa program. Given that you do represent almost half of
the migration industry, what is your experience in relation to the allegations
of rorting within the 457 visa program? And if there are rorts, are they dealt
with by way of a legislative basis?
Ms Chan: We would only have the information that is
provided through DIAC, and the statistics do not support either a 10,000 rort
or a 100,000 rort.[29]
1.80
Perhaps the
most damning evidence in relation to the Minister's false claims of widespread
rorting was provided by his own department at the public hearing of the inquiry.
1.81
The department
confirmed under questioning from Senator Cash that it did not provide the Minister
with any advice that would form the basis of his false claims:
Dr Southern: We certainly did not provide advice
around a number of 10,000.[30]
Claims of rorting by the CFMEU and
the TWU
1.82
Evidence given by the Construction, Forestry, Mining and Energy Union
(CFMEU) in its submission to the inquiry was to the effect that there were
fundamental abuses or rorts of the 457 visa program:
The fundamental abuse or rort of the 457 visa program is when
the Australian government authorises an employer to employ a foreign national
on a 457 visa when a qualified Australian citizen or permanent resident is
available and willing to do the work.[31]
1.83
The CFMEU submission
went onto state that the union would 'provide to the committee, on a
confidential basis and upon request, numerous examples of the exploitation of
457 visa workers'.[32]
1.84
Coalition
Senators note that the evidence provided by the CFMEU on a confidential basis
to the inquiry referred to six cases of alleged rorting.
1.85
At the public
hearing for the inquiry, Mr Tony Sheldon of the Transport Workers' Union of
Australia (TWU) stated that he believed there were more than 100 000
people on 457 visas having their human rights exploited:
Mr Sheldon: And you would look at the question Senator
Cash rightly asked, as you are asking: is there exploitation of people on 457
visas beyond those two months? When you are talking about having a human right
taken from you whereby you can be deported from the country, I would argue that
the entire 100,000 plus are human rights exploited...[33]
1.86
Coalition Senators note that the total
number of principal visa holders in Australia at 30 April 2013 was estimated by
DIAC to be 108 810.[34]
1.87
When asked by
Senator Cash how many allegations of cases of exploitation or rorting had been
reported the TWU, Mr Sheldon's evidence was that there were only 24 such cases:
Senator CASH: In your oral evidence today you did use
the word 'exploiting' in relation to 457 visas. How many allegations or cases
of either exploitation or rorting have been reported to the TWU?
Mr Sheldon: It is 24.[35]
1.88
The evidence
of Mr Sheldon regarding his claims of exploitation of people on 457 visas
appears to be similar to the exaggerated and factually inaccurate claims made
by Minister O'Connor and the CFMEU.
Work-related fatalities among 457
workers
1.89
The inquiry
at its public hearing heard evidence from Mr Kinnaird of the CFMEU that the CFMEU
had data on the work-related fatality rate among 457 visa workers which showed
that it is more than double the rate as that amongst Australian workers:
Mr Kinnaird: Finally, we have data on the work-related
fatality rate among 457 visa workers, which shows that the fatality rate is
more than double the rate among Australian workers in equivalent occupations.
So you would expect that the injury rate would be similar.
CHAIR: What is the source of that and can you provide
that further information on notice, please?
1.90
In relation
to the evidence provided by Mr Kinnaird on notice to the committee, Coalition
Senators note that the data that Mr Kinnaird referred to only covers the period
2008-09, one financial year, and that the number of such deaths in that year
was atypically high.
1.91
In relation
to work-related fatalities among 457 visa holders, Coalition Senators note that
the department holds a register of deaths of 457 visa holders.
1.92
The department
on notice advised the committee that it was aware of the death of 58 visa holders since 2007.
Forty-seven of these deaths were non work-related and 11 work related.[36]
Coalition Senators' conclusions on
allegations of rorting the 457 visa program
1.93
The lack of authoritative statistical or substantive evidence provided
by Minister O'Connor, the CFMEU and the TWU in their spurious claims of
widespread rorting of the 457 visa program is not consistent with the records
published by the department, which indicate that such incidents are rare and
isolated within the 457 visa program.
1.94
Based on the evidence provided to the inquiry, Coalition Senators
conclude that the extremely damaging statements made by Minister O'Connor, the
CFMEU and the TWU, alleging widespread rorting of the 457 visa program, were
politically motivated and designed to undermine the 457 visa program and are
not supported by their own evidence or any other authoritative statistics or
sources.
Evidence regarding Labor Market Testing
1.95
Labour Market
Testing (LMT) was previously a requirement for not only subclass 457
sponsorship but also sponsorship under the Employer Nomination Scheme (ENS) and
Regional Sponsored Migration Scheme (RSMS).
1.96
LMT was
abolished in all of those areas as it was deemed to be complex, onerous and
ineffective.
1.97
The 457 visa
program is only accessible to those employers with a strong record of, or a
demonstrated commitment to, employing local labour and, also, a demonstrated
financial commitment to training Australian workers
1.98
Coalition
Senators note the compelling evidence from industry groups and labour market
experts who argued against the introduction of stringent LMT as part of the 457
visa application process.
1.99
Coalition
Senators agree that the reintroduction of stringent LMT will undermine the
rationale and purpose of the 457 visa program, which is intended to facilitate
the rapid filling of employment positions during temporary skill shortages.
1.100
Coalition
Senators note that there is already an adequate inbuilt mechanism for LMT
within the current 457 visa process.
1.101
The adequacy
of the current inbuilt mechanism for LMT was supported by the evidence of the
Australian Mines and Metals Association (AMMA), which set out and described the
basis upon which an employer is able to access the 457 visa program:
Before a position in a business can be filled with an
overseas worker, the sponsor must certify that it is suitably skilled and that
the qualifications and experience of the visa holder are equivalent to what
would be required of an Australian employed in that occupation. Market rates
and conditions that would be paid to an Australian in the same job in the same
workplace must also be provided.
Sponsors incur additional costs for employing workers on 457
visas such as paying for health insurance, flights to and from Australia, and
agent fees for finding the worker. These additional costs of sponsorship can
amount to $60,000 per person.
457 visas are not a low cost option to avoid the costs of
employing Australian residents. It would be unsound to proceed on any other
basis than that employer's hire foreign workers only as a last resort. This
in-built mechanism makes it unnecessary to incorporate further labour market
testing into the visa application process.
Furthermore, labour market testing – insisting that employers
show evidence of having recruited locally would be debilitating for employers
urgently seeking to fill a position, and who are familiar with the challenges
of the local employment market. Employers seek foreign workers when they
urgently need skills that are not otherwise accessible to them.
Labour market testing would also be fraught with bureaucratic
and administrative problems, as DIAC case officers would also have to assess
the additional information provided, thereby increasing DIAC workload and
inflating processing times for 457 visas. To take this a step further and be
absolutely clear, deliberately inflating process times as a disincentive to
using 457 visas would be: very poor governance indeed, a rank waste of public
resources; and would ill serve the interests of the Australian economy and job
opportunities.[37]
1.102
Coalition
Senators believe that the introduction of stringent LMT ignores the reality
that it is in the employer's best interests to conduct their own LMT and assess
the availability of local skills prior to seeking to utilise the 457
visa process.
1.103
Coalition
Senators note the evidence from various submitters, including Consult
Australia, that Australian businesses overwhelmingly prefer to hire
Australians. Consult Australia submitted that, as it is more economical and
less complicated to fill skills requirements from the local workforce,
employers unsurprisingly conduct their own LMT in the first instance.
1.104
Consult
Australia's submission stated that employers consistently advise that they
prefer to recruit locally available staff rather than having to seek out
temporary skilled migrants:
The cost of employing a temporary skilled migrant is much
larger than the cost of recruiting locally, especially in terms of the cost of
the process and the cost of relocating a new employee and their family to
Australia. Temporary skilled migrants require more support to settle into
Australian business practices, and their families require support to ensure
their experience is a positive one and they do not return home early.
This demonstrates that labour market testing is a normal
procedure for employers in the built environment consulting sector. Placing new
requirements on employers to document and report on labour market testing is
not required, and will end up as unnecessary regulation.[38]
1.105
Consult
Australia's evidence was supported by the submission of Hamilton's Migration
Law, which stated:
...labour market testing is already conducted by employers with
a range of means...Employers are entitled to determine how best to recruit to
fill a vacancy given the workforce available in their particular area. The
statutory form of labour market testing has already been rejected as a feature
of the 457 regime as it was seen to be incompatible with the purpose of the
program which is to flexibly and quickly fill short-term vacancies.[39]
1.106
The evidence
of the Ai Group also supported an employer's preference to recruit locally
available staff:
Sourcing skilled labour via 457 visas attracts a significant
premium over hiring locally and this ensures that in the vast majority of cases
employers will only go down the 457 path when they have exhausted local
options. In this way, employers themselves test the market thoroughly before
choosing to hire through the 457 program. The visas are also available only for
skills which are demonstrated to be in demand. Stringent testing will simply
add more unnecessary bureaucracy...Delays caused by such testing could prevent
a business from meeting urgent commercial needs.[40]
Government proposal to introduce
stringent labour market testing
1.107
The Gillard
Government is proposing to reintroduce LMT as a requirement for 457 visa
sponsorship through the Migration Amendment (Temporary Sponsored Visas) Bill
2013 (the Bill), which is currently before the Parliament.
1.108
The Bill
provides that employers may be required to provide evidence that they have made
attempts to fill the position locally before seeking to become a 457 visa
sponsor. Evidence to be provided would include:
- advertising of the position by the employer;
- participation
in career expos;
- fees paid for
recruitment; and
- results of
recruitment attempts.
1.109
The Bill
introduces new LMT requirements across all skill level occupations with the Minister
having the power to exempt some, but not all, higher skill level occupations.
1.110
The Bill
proposes that the following types of occupations may be exempted if specified
in a legislative instrument:
- professionals
and managers: occupations requiring a bachelor degree or five years of
work experience would be exempt by default; and
- associate
professionals: occupations requiring a diploma or three years of work
experience would be exempt by default.
Evidence against the introduction
of stringent labour market testing
1.111
Coalition
Senators note that the inquiry received strong and credible evidence that the
introduction of stringent LMT will reverse the balance of minimal
administrative burden, which is vital to the success of the 457 visa program,
and reduce the ability of an employer to access skilled labour in an efficient and economical manner.
1.112
In its
submission, the Chamber of Commerce and Industry Queensland stated its belief
that LMT is ineffective, time consuming and of little value to small and medium
employers.[41]
1.113
BCA strongly
recommended against the introduction of LMT as an onerous requirement that
would impose additional, unnecessary regulatory costs on industry, and would be
impractical in most cases. BCA noted that LMT introduces complex and costly
process without providing any demonstrated benefits:
Businesses overwhelmingly prefer to hire Australians first.
It is cheaper and faster to fill skills requirements from the permanent local
workforce. Employers are taking on additional costs of hiring, training and
relocating overseas when applying for 457 visas – it is in their commercial interest
to have already assessed whether there might be Australian workers available to
fill the roles.
There is next to nothing to be gained from mandatory labour
market testing. Labour market testing would only add more cost and delay to
employers and curtail business activity.
Furthermore, the introduction of labour testing could be
inconsistent with Australia's commitments under World Trade Organization and
free trade agreements, as noted in the government response to the report of the
Joint Standing Committee on Migration in 2009.[42]
1.114
The evidence
of the ANU College of Law was that the introduction of stringent LMT within the
application processes for the 457 visa program would be inefficient and
ineffective.[43]
1.115
ACCI
submitted that the introduction of stringent LMT requirements could cause
significant time delays and would only slow down access to skilled overseas
workers under what is supposed to be a fast, flexible visa solution to skilled
labour shortages.[44]
Failure of government to provide a
Regulation Impact Statement
1.116
Coalition Senators have significant concerns regarding the failure of
the Government to provide a Regulation Impact Statement (RIS) in relation to
Schedule 2 of the Bill, which contains the LMT provisions, given the
cogent evidence of the likely detrimental impact these provisions will have on
business.
1.117
The
requirement for a RIS is set out on the Office of Best Practice (OBPR) website,
which states:
A Regulation Impact Statement (RIS) is required, under the
Australian Government's requirements, when a regulatory proposal is likely
to have an impact on business or the not-for-profit sector, unless that impact
is of a minor or machinery nature and does not substantially alter existing
arrangements.[45]
1.118
On 14 May 2013, the OBPR advised the department that a RIS was required in relation to Schedule
2 of the Bill, which contains the LMT provisions.
1.119
The department advised the OBPR that it would not be able to fulfil the
request in the short time frame given that the Bill was to be tabled on 29 May
2013.
1.120
On 22 May 2013, the Minister requested the Prime Minister to grant an
exemption to the RIS process, and on 27 May 2013 the Prime Minister granted
that exemption.
1.121
No reasons have been provided in relation to why the Prime Minister
granted an exemption citing 'exceptional circumstances'.
1.122
The Government
was advised of the concerns of business and industry in relation to the
detrimental impacts of the Bill in the 'Open letter to members of the Federal
Parliament regarding the Migration Amendment
(Temporary Sponsored Visas) Bill
2013' (17 June 2013).
1.123
The letter
was from the MCA and signed by: Innes Willox, Chief Executive Officer of the Ai Group; Jennifer Westacott,
Chief Executive
of the Business
Council of
Australia; and Carla Wilshire, Chief Executive Officer
of the Migration Council Australia.
1.124
An extract
from the text of the letter setting out the concerns of business and industry
is as follows:
We are writing to
ask for your support in opposing the Migration
Amendment (Temporary Sponsored Visas) Bill 2013
in
full when it is introduced into the parliament this week.
We are greatly concerned by the lack of supporting evidence, damaging rhetoric and poor process associated with the proposed changes
to the 457 visa scheme, along with the considerable risks
posed for investment,
job
creation and economic
growth. Furthermore, there has
been
minimal consultation with industry about these changes.
The
legislation risks undermining the capacity to fill identified skills gaps
in
a timely way without a proper assessment of whether there is a genuine problem to be solved. What is so concerning is that the government is seeking to rush these changes through
the final session of
parliament before the election without subjecting its claims about
alleged scheme abuses and inadequacies to the rigor of its own Regulatory Impact Statement (RIS) process.
The RIS exemption for the new labour market testing requirements
in
the Bill cites
'exceptional circumstances'. It is unclear what these circumstances
are, given that the
minister's department has provided no hard evidence of
a systemic problem with the scheme.
The
government's primary argument for a systemic
problem rests on a misleading interpretation of an ambiguous survey finding in a recent Migration
Council Australia report.
This is not an adequate foundation for
introducing costly new regulation.
A Regulatory Impact Statement, with full
consultation with industry, is the appropriate way to assess whether a problem exists with the 457 visa scheme and the costs
and benefits of
solving any purported problems
through specific actions, including regulation.
Unwarranted additional regulation of the
457 visa scheme risks penalising all employers
and their employees, and undermining investment, skills
transfer
and development and broader
job
creation, to address a relatively small number of instances that may be better dealt with
through other means.
Coalition Senators' conclusions on Labour
Market Testing
1.125
Coalition
Senators concur with the concerns highlighted by the evidence from business and
industry that the Government's LMT requirement undermines the rationale and
purpose of the 457 visa program, which is intended to facilitate the rapid
filling of employment positions during temporary skill shortages.
1.126
The ability
to rapidly fill vacancies with a skilled overseas worker is an important
feature in the overall success of the program.
1.127
Coalition Senators
believe the proposed regime for LMT will be cumbersome to implement and
difficult to monitor, and will increase the burden of regulation, obligations,
compliance and enforcement on employers seeking to sponsor workers on 457
visas.
1.128
Based on the
evidence provided to the inquiry, and the false statements of the Minister in
relation to the 10 000 alleged cases of abuse and rorts and the spurious
evidence of the CFMEU and TWU regarding abuse of the 457 visa program,
Coalition Senators have formed the view that the re-introduction of LMT is
politically motivated and is being used as a vehicle to frustrate and
discourage business from utilising the benefits that underpin the 457 visa
regime.
1.129
Coalition
Senators do not support the introduction of stringent LMT.
1.130
Coalition Senators consider that the Government should delay the
passage of the Migration Amendment (Temporary Sponsored Visa) Bill 2013 to
allow a RIS assessment and consultation with relevant parties in relation to
the Bill and, in particular, its impact on business and industry.
Recommendation 2
1.131
Coalition Senators recommend that the Government delay the passage of
the Migration Amendment (Temporary Sponsored Visa) Bill 2013 (the Bill) to
allow a RIS assessment and consultation with relevant parties in relation to
the Bill and, in particular, its impact on business and industry.
Labour market testing and
Enterprise Migration Agreements
1.132
Coalition Senators note that EMAs require significant demonstration by
business that the proposed positions cannot be filled from the local labour market.
As set out on the department's website:
Labour from outside Australia will only be supplementary,
with resources projects required to demonstrate effective, genuine and ongoing
local recruitment efforts...
All 457 sponsors, whether under an EMA or not, have to attest
to having a strong record of, or a demonstrated commitment to, employing local
labour and non-discriminatory employment practices. The jobs board provides a
way for EMA holders to show they have made genuine attempts to recruit
Australian workers before recruiting workers from outside Australia.[46]
1.133
The department's advice was confirmed by evidence from the Ai Group that EMAs
require:
a) Evidence that there are genuine skills shortages in the
local area, and b) Evidence of efforts to use Australian workers first.[47]
The economic and social benefits of skilled migration and the 457 visa
program
1.134
The
department's submission to the inquiry acknowledges that the 457 visa program
is an important mechanism to address skills needs in the labour market which
cannot be met domestically. It states that the 457 visa program and EMAs are
particularly important for the resources and construction sectors.
1.135
The
submission also states that temporary skilled migration ensures that major
resources projects are not constrained or jeopardised by a shortage of appropriately
skilled workers that are needed to deliver a project on time and on budget.
1.136
For the
resources sector, temporary skilled migration is an important mechanism to
demonstrate labour security and the capacity to deliver major projects on time,
which can be a critical factor to support business and investor confidence, and
access to project finance.
1.137
In the report
'Population Flows: Immigration Aspects 2010-11 Edition', the department confirms
the economic benefits of the 457 visa program. The report states:
The fiscal contribution of migrants to Australia's bottom
line is significant. According to the Migrants' Fiscal Impact Model the total
contribution from the 2010–11 Migration and Humanitarian programs and the
Temporary Business subclass 457 program is $1.6 billion in the first year after
arrival and $15.4 billion over the first 10 years.[48]
1.138
The
department also noted that 457 visas generate a larger immediate return to
Australian taxpayers than all other visa categories.
1.139
The Ai Group
provided compelling evidence on the economic benefits of the 457 visa program
and what could be lost if access to required labour is not facilitated. Its
submission stated that, for a company already under significant economic
pressure, failure to be able to source skilled labour could 'mean the
difference between their survival and continuing operations'.[49]
1.140
Ai Group
concluded that for those without access to the program the pressure to move
operations off-shore may become compelling to the detriment of the employees in
domestic operations.[50]
1.141
The ACCI
submission noted that Australia garners significant economic and social benefit
welcoming migrants to work in Australia. It observed that skilled migrants live
and work in Australian communities, rent houses, buy groceries, holiday in our
major tourist areas, send their children to our schools and provide employers
with the skills they need to operate effectively and productively.[51]
1.142
This evidence
was supported by AMMA:
With regard to the general economy, 457 visas workers were found
to transfer their knowledge, skills, cultural richness and contribute directly
to the economy through spending money on living expenses and by paying taxes.
They often possess world-class project management experience that rubs off on
the local enterprise and advances the skills and employability of Australian
employees. Skilled migrants in the resource industry are subject to a high rate
of taxation, without the offsets afforded to domestic taxpayers. On average,
457 visa holders were found to pay a tax rate of about 8.5% more than
Australian citizens and residents, which represents valuable tax receipts to
the Government and a legacy for our community of their period working in this
country.[52]
1.143
AMMA also
provided evidence as to the benefits of the 457 visa program to the 457 visa
holders themselves:
Amidst all the hysteria surrounding the 457 visa 'debate',
one voice has been forgotten in particular: the 457 visa holders themselves.
The Edith Cowan research indicated several benefits for visa holders working
even for a short time in Australia including: improved choice, career
prospects, equality in that they are valued for their skills, financial reward,
a safe working environment, the weather and a pleasant lifestyle. Workers from
the Philippines, for example, found the higher financial rewards available
highly beneficial to improving the lives of their children back home (this is
simply Australia becoming part of the massive Philippine Diaspora around the
world seeking to bring remittances back into that country).[53]
1.144
The submission from Fragomen noted:
...[it seems] inconceivable how many
infrastructure projects recently completed, currently underway or those being
proposed could possibly have been undertaken without access to the engineers,
IT professionals, contract and project managers and other highly skilled professionals
from around the world. Australian companies and staff and the underlying labour
market in Australia would simply not be able to undertake this scale of work.[54]
1.145
Fragomen's views
were supported by the submission from Consult Australia, which stated:
If the facility to quickly and efficiently recruit temporary
skilled migrants did not exist the Australian economy would cease to function
as we know it. Large infrastructure projects would be slow to complete, and it
would be impossible for private investors and developers to make planning
decisions that rely on accurate workforce supply data.[55]
1.146
The evidence of the Minerals Council of Australia was that:
Simply, without temporary skilled migration, the Australian
minerals industry would not have been able to respond to the significant
investment demand in mining experienced over the past decade.[56]
1.147
In relation
to the social impact of such agreements, the Minerals Council of Australia submitted:
...regional economic and social impacts are clear with thriving
mining communities across Australia – a recent MCA KPMG Report based on 2006
and 2011 ABS Census data shows that incomes and educational attainment are
higher, unemployment is lower and there are more families and working aged
residents in Australia's mining regions than in regional Australia more
generally.[57]
1.148
The MCA, in
its report 'More than temporary: Australia's 457 visa program (the MCA report),
concluded that its survey results reinforced that skills transfer and knowledge
from 457 visa holders play an essential part in building Australia's human
capital.[58]
The MCA report observed:
...temporary migration does not just fill skills shortages; it
addresses skills deficits by training Australian workers. It is critical in
keeping us competitive in the era of international knowledge wars, when
industry innovation is global. In
effect, Australia's temporary migration system is our answer to the 'brain
drain': that is, brain circulation. The flow of people has not only helped us
to keep pace, it also has created a skills pull in some sectors that has
enabled Australia to lead innovation.[59]
1.149
Fragomen in
its submission to the Inquiry set out the benefits of the subclass 457 visa to
Australia:
The subclass 457 visa allows multinational businesses to
transfer skills and talent in an efficient and effective manner and Australian
business to access a global pool of talent, often with skills and experience
not available in the Australian labour market. This results in:
- increased competitiveness and productivity in the Australian
economy;
-
the ability to introduce new skills, processes and technology and
increased employment opportunities for Australians that derive from this;
- skills transfer from overseas trained professionals to the
Australian workforce;
- the ability to satisfy short‐term
labour demands; and
- The ability to manage Australia's permanent migration needs by
ensuring that migrants are tried and tested and that they have had the
opportunity to properly assess a long‐term
commitment to life in Australia.[60]
1.150
The MCA
report concluded that its survey provided a body of evidence indicating that
the 457 visa program is meeting the needs of both employers and 457 visa
holders. It also found that a high level of employment satisfaction demonstrated
that 457 visa holders are integrating well into the Australian workforce. It
concluded that, on the whole, employer usage and attitudes reflect the policy
intention of the 457 visa program and found that employers indicate a high
level of satisfaction and an ongoing commitment to using the program.[61]
1.151
The submission of Berry
Appleman and Leiden (BAL Australia) stated:
...it is apparent from our observations that temporary skilled
migration across all relevant visa categories provides a wide range of benefits
including by not limited to:
- ensuring complex projects— of substantial economic significance
and of importance to the nation—may advance even when there are local labour
market bottlenecks because of lack of required local expertise or labour
shortages in particular occupations
-
ensuring the Australian economy has access to world-best
technology and practices, to ensure the economy is able to enhance efficiencies
and local based knowledge
- Sharing of overseas cultures for the enrichment of Australian
society as a whole.[62]
1.152
The Commonwealth Fisheries Association (CFA) submission noted the
economic benefit of access to 457 visa labour to ensure the sustainability of
its industry:
At present we employ at the deckhand level on 457 visas. Some
of these employees have over three years service with us and have been promoted
up the ranks...and are critical to our operations... is a recognised regional
centre that has chronic labour shortages...We also employ another 20-30 deckhands
at any one time that are foreigners from various countries who are on working
holidays visas, and can only be employed with us for 6 months, although most
would love to stay longer with us. Without a doubt we need to have access to
457 employees at the deckhand level to remain viable. (Fishing operator, March
2011; communication with CFA)[63]
1.153
In the same
vein, the Law Council of Australia (LCA) submission noted that, without the
ability for employers to sponsor foreign workers, it has been recognised that
many business, including public hospitals, would cease to function. It noted
that the Premier of NSW has stated that the NSW Health Department engages 2800
foreigners on 457 visas, and that these individuals 'ensure the continued
functioning of the state's hospitals: [and that] without them the health system
in NSW would simply collapse.[64]
Coalition Senators' conclusions on
the economic benefits of the 457 visa program
1.154
Coalition
Senators believe that the 457 visa program plays a vital role
for employers
to source skilled labour if appropriate skills cannot
be found locally, and
that Australia's skilled
and semi-skilled migration program
should only be employed to supplement our domestic workforce where necessary.
1.155
If designed effectively,
the 457 visa program should enable employers to respond to short term skill
shortages.
1.156
There is a
national economic benefit in enabling
highly skilled migrants to complement the local workforce, bring expertise and global experience
and
make a positive long-term contribution to the Australian community.
1.157
Coalition
Senators believe that the 457 visa program has provided significant benefits to
Australia.
1.158
The program,
if managed in an efficient and effective manner, has the capacity to deliver
the skilled workers Australia needs to remain competitive in the global
economy. Australia
has been a successful and prosperous nation in large part due to its skilled
and productive workforce.
1.159
It is
critical that appropriate policies be implemented if Australia is to have a
workforce that is capable of ensuring the nation's strong growth and continued
economic success.
Fair Work Ombudsman
1.160
On 18 March 2013, the Government announced that it would 'give powers to
the Fair Work Ombudsman to monitor and enforce compliance with 457 visa
conditions, to ensure workers are employed in the right jobs and are receiving
market salary rates'.[65]
1.161
Given the previous false claims by Minister O'Connor regarding claims of
457 visa rorting, Coalition Senators were at the time concerned that this
move was another cheap political stunt that would mean an increased workload
for the Fair Work Ombudsman with little to no evidence for an additional
regulatory burden.
1.162
At Senate Estimates, departmental officials advised that a Memorandum of
Understanding (MoU) between the Fair Work Ombudsman and the department would be
needed:
Senator CASH: Can I now move on to the $3.4 million
that has been allocated to the dual arrangements with Fair Work Australia.
Could you take me through how the arrangements are actually going to work, who
will have jurisdiction and in what circumstances?
Mr Kukoc: We are still working out an MoU with the
Fair Work Ombudsman but we hope to finalise this MoU very soon. Based on the
current policy, the intention is to have 300-plus Fair Work Ombudsman
inspectors with the power to investigate 457 noncompliance when they visit work
sites, as part of their regular duties. They will focus on two aspects of the
457 program. The first is the salary that is being paid—whether the 457s are
engaged under the same terms and conditions as an equivalent Australian
worker—and the second will be whether they are working in the occupation that
was nominated by the sponsor. They will provide that information to our operational
integrity and operational integrity will then, based on the risk matrix that
they have, make a decision on how to deal with that noncompliance.[66]
1.163
Yet, courtesy of the Bill introduced into the House of Representatives
on 6 June 2013, it is now clear that a MoU will not suffice and that
amendments to the Fair Work Act 2009 (Fair Work Act) will be required.
1.164
This comes after Labor promised at the 2010 election that it would make
no changes to the Fair Work Act in this term of government, and we have now
seen more than 400 pages of legislation. This is just another breach of
promise, on a long list, in order to appease union bosses.
1.165
While the Government have provided an additional allocation in the
budget to the Fair Work Ombudsman, they have provided evidence at Senate
Estimates that this will employ only an additional six or seven inspectors.[67]
1.166
Further, this additional burden should be viewed in the context that,
since 1 July 2011, due to financial and budgetary constraints and budget
cuts, there has been a cut of 213 inspectors at the Fair Work Ombudsman.[68]
1.167
Coalition Senators are deeply concerned that this highly political move
by the Government will spread the Fair Work Ombudsman thin and could impede the
Fair Work Ombudsman from assisting small businesses and employees.
COALITION'S RESPONSE TO RECOMMENDATIONS
CHAPTER 2 (Effectiveness of the 457 visa program)
Recommendation
1
The
committee recommends that, for the exclusive purposes of the 457 visa program,
the Australian Workforce and Productivity Agency be given the responsibility
and commensurate funding to compile and prepare a skills in-demand list which
also takes into account regional labour market skill shortages.
Coalition Senators' response:
1.168
Coalition Senators do not oppose this recommendation.
1.169
Coalition Senators note, however, that in the current fiscal environment
the allocation of 'commensurate funding' may not fall within the current budget
parameters.
Recommendation
2
The committee
recommends that the government institute a review of the extent to which
Australia's immigration system does and should facilitate the flow of low- and-
semi-skilled labour into Australia.
Coalition Senators' response:
1.170
Coalition Senators do not oppose this recommendation.
Recommendation
3
The
committee recommends that a dedicated pathway for intra-company transfers be
introduced to the 457 visa program.
Coalition Senators' response:
1.171
Coalition Senators do not oppose this recommendation.
CHAPTER 3 (Protection of 457 visa holders' rights)
Recommendation
4
The
committee recommends that the
Fair Entitlements Guarantee Act 2012 be amended to make 457 visa
holders eligible for entitlements under the Fair Entitlements Guarantee scheme.
Coalition Senators' response:
1.172
Coalition Senators do not oppose this recommendation.
1.173
The Coalition has a long and proud history of protecting employees'
entitlements. It was the Coalition that established the General Employee Entitlements and Redundancy Scheme (GEERS) safety net almost ten years ago, following the
high-profile collapse of National Textile.
1.174
The GEERS safety net is a basic payment
scheme established to assist employees who have lost their employment due to
the liquidation or bankruptcy of their employer and who are owed certain
employee entitlements. GEERS covers capped unpaid wages, annual and long
service leave, capped payment in lieu of notice and capped redundancy pay.
1.175
Coalition Senators note that the
Government in 2012 legislated this program and what is now the Fair
Entitlements Guarantee.
1.176
Coalition Senators support the extension of the Fair Entitlements
Guarantee Act 2012 to protect workers let down by employers who have not
left provision for employee entitlements at a time of company insolvency or
bankruptcy.
Recommendation
5
The committee
recommends that the Government initiate an inquiry into the extent to
which relevant workplace and occupational health and safety legislation
protects the legal rights, remedies and entitlements of 457 visa holders and
whether temporary migrant workers in Australia are adequately protected by
relevant workplace and occupational health and safety laws.
Coalition Senators' response:
1.177
Coalition Senators do not support this recommendation.
1.178
Coalition Senators remain to be convinced of the evidentiary need for
such an inquiry noting the majority report did not point to any evidence.
1.179
That said, should there be a clear need and evidence, Coalition Senators
would be minded to further consider any proposals put forward in that context.
Recommendation
6
The
committee recommends that the immigration program be reviewed and, if
necessary, amended to provide adequate bridging arrangements for 457 visa
workers to pursue meritorious claims under workplace and occupational health
and safety legislation.
Coalition Senators' response:
1.180
Coalition Senators do not support this recommendation.
1.181
Coalition Senators remain to be convinced of the evidentiary need for
such an amendment noting the majority report did not point to any compelling evidence.
1.182
Coalition Senators note that any claim could only be considered
meritorious after the conclusion of any such proceedings and such proposals
seem to be ill-considered. That said, should there be a clear need and evidence,
Coalition Senators would be minded to genuinely consider any proposals put forward
in that context.
Recommendation
7
The
committee recommends that the Department of Immigration and Citizenship be
required to provide 457 visa holders, on each approval, variation or
re-approval of an application, with comprehensive information regarding
sponsors' obligations; relevant workplace and human rights governing the
employment relationship; and sources of workplace, legal and migrant advice and
assistance while working in Australia.
Coalition Senators' response:
1.183
Coalition Senators do not support this recommendation.
1.184
Section 125 of the Fair Work Act requires employees to be provided with
a Fair Work Information Statement, prepared by the Fair Work Ombudsman.
1.185
Given the Fair Work Ombudsman is a well trusted institution that already
provides information to both employers and employees on the operation of the
Fair Work Act, Coalition Senators believe that the Fair Work Ombudsman is best
placed to assist all workers, including 457 visa holders, with information.
1.186
The department is not equipped to provide the kinds of advice that is
being suggested and would require a significant duplication of work already
undertaken.
1.187
Coalition Senators contend that the information that is being suggested
is already available courtesy of the Fair Work Ombudsman and more specific
information about the operation of 457 visas is provided to visa-holders
already.
CHAPTER 4 (EMAs and RMAs)
Recommendation
8
The
committee recommends that the Government prepare and release submission
guidelines for Enterprise Migration Agreements and Regional Migration
Agreements.
Coalition Senators' response:
1.188
Coalition Senators do not oppose this recommendation.
1.189
Coalition Senators note that the recommendation above goes to
this issue—that is, that the Government instruct the department to process in a
timely fashion the EMAs and RMAs that are currently lodged with the department.
CHAPTER 5 (Potential impact of proposed changes to the 457 visa program)
Recommendation
9
The committee
recommends that the government initiate a review of the Ministerial Advisory
Council on Skilled Migration (MACSM) to establish clear terms of reference,
operating guidelines and consultation and communication strategies for that
body.
Coalition Senators' response:
1.190
Coalition Senators do not oppose this recommendation.
Recommendation
10
The committee
recommends that the proposed changes to on-hire arrangements and sponsors'
obligation not to recover certain costs be effected immediately and separately
to the regulation currently proposed to commence on 1 July 2013.
Coalition Senators' response:
1.191
Coalition Senators do not support this recommendation.
Recommendation
11
The committee
recommends that the proposed empowerment of Fair Work Inspectors under the Migration
Act 1958 and to subclass 457 visa condition 8107 be effected immediately
and separately to the Migration Amendment (Temporary Sponsored Visas) Bill
2013.
Coalition Senators' response:
1.192
Coalition Senators do not support this recommendation.
Senator Michaelia Cash Senator
Sue Boyce
Senator Gary Humphries
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