2.111 The committee recommends
that the Department of Immigration and Border Protection routinely publish data
on the number of temporary migrants resident in Australia by length of stay.
This data should account for transitions between temporary visa categories. The
committee also recommends that brief periods of time spent outside Australia
during a transition between visas should not restart the clock on calculating
the total length of time spent in Australia on temporary visas.
2.112 The committee recommends
that the Department of Immigration and Border Protection conduct a review of
proposals to give greater weight to time spent living in Australia in
consideration of applications for permanent residency. The review should also
consider the merits of setting a limit on the period of time after which it
would be considered reasonable for a temporary visa holder to qualify for
3.259 The committee recommends
that the Department of Immigration and Border Protection be required to
maintain an online public register of current labour agreements in operation,
as well as any future Designated Area Migration Agreements. The committee also
recommends that the register note any exemptions provided under a labour
3.260 The committee recommends
that the Department of Immigration and Border Protection be required to advise
all stakeholders that were consulted as to the outcome of the labour agreement
3.266 The committee recommends
that the Temporary Skilled Migration Income Threshold (TSMIT) be indexed to
average fulltime weekly ordinary time earnings (AWOTE) as at 1 July 2015 and
that indexation occur each financial year.
3.286 The committee recommends
that the Ministerial Advisory Council on Skilled Migration (MACSM) be
re-constituted as a genuinely tripartite, independent, and transparent body
with responsibility and commensurate funding to provide objective
evidence-based advice to government on matters pertaining to skills shortages,
training needs, workforce capacity and planning, and labour migration
(including Designated Area Migration Agreements and the full range of temporary
visa programs with associated work rights). The committee further recommends
that the reports produced by MACSM be made publicly available.
3.302 The committee recommends
that the replacement of local workers by 457 visa workers be specifically
3.303 The committee recommends
that the current exemptions on labour market testing for ANZSCO skill levels 1
and 2 be removed.
3.304 The committee recommends
that the Migration Regulations be amended to specify that labour market testing
applies to all positions nominated by approved sponsors under labour agreements
and Designated Area Migration Agreements.
4.100 The committee recommends
that the reconstituted MACSM review the Working Holiday Maker (417 and 462)
visa program. The review should include, but not be limited to, an examination
of the costs and benefits of the continued operation of the optional second
year extension to the visa, and the costs and benefits of providing government
with the ability to set a cap on the numbers of Working Holiday Maker program
visas issued in any given year.
4.101 The committee recommends
that the Department of Immigration and Border Protection be sufficiently
resourced to allow it to pursue inter-agency collaboration that would enable it
to collect and publish the following data on the Working Holiday Maker visa
of working holiday visa holders that do exercise their work rights;
duration of their employment;
of employers they work for; and
rates of pay, and the locations, industries, and occupations they work in.
4.102 The committee recommends
that the reconstituted Ministerial Advisory Council on Skilled Migration
(MACSM) review the Seasonal Worker program to ensure the program is meeting its
5.78 The committee recommends
that employer sponsors of a 457 visa worker (professional) be required to also
employ an Australian tertiary graduate in the same enterprise on a one-for-one
5.79 The committee recommends
that employer sponsors of a 457 visa worker (trade) be required to demonstrate
that apprentices represent 25 per cent of the sponsor's total trade workforce
(with the threshold for this requirement being the employment of four or more
5.80 The committee recommends
that the current training benchmarks be replaced with a training levy paid per
457 visa holder employed in the business. The committee recommends that the
levy be set at up to $4000 per 457 visa worker and that the levy be paid into
existing government programs that specifically support sectors experiencing
labour shortages as well as apprenticeships and training programs. The
committee notes that this levy would need to be closely monitored to ensure it
is paid by the sponsor and not passed on to the visa holder.
5.81 The committee recommends
a short review be conducted into the costs to employers of running graduate employment
programs, and the desirability and feasibility of directing funds collected
from the training levy to assist employers implement and administer graduate
programs, such that Australian tertiary graduates are afforded ready access to
graduate employment positions.
5.82 The committee recommends
that the following data be collected and made publicly available on an annual
basis (either by the relevant statutory agency, or the relevant government
registrations of nurses and midwives on temporary work visas;
of employers currently sponsoring skilled tradespersons (ANZSCO level 3) on 457
of apprentices and trainees employed directly by these 457 sponsors, in total
and by sponsor industry and state/territory;
in which those apprentices are being trained, including the number of
apprentices in the same trade classifications in which the 457 visa workers are
the apprentice and trainee numbers in each category have increased, decreased,
or have not changed since approval of the employer as a sponsor.
6.95 The committee recommends
that the Fair Entitlements Guarantee Act 2012 be amended to make
temporary visa holders eligible for entitlements under the Fair Entitlements
6.96 The committee recommends
that the immigration program be reviewed and, if necessary, amended to provide
adequate bridging arrangements for all temporary visa holders to pursue
meritorious claims under workplace and occupational health and safety
6.97 The committee recommends
an audit of all workers rehabilitation and compensation schemes to determine
whether temporary migrant workers who suffer a debilitating, life-long
disability as the result of a workplace accident would be treated equally with
Australian citizens or permanent residents in similar circumstances. The audit
should also determine if a temporary migrant worker's entitlements would be
diminished or restricted in any way if that worker were no longer to reside in
Australia. Subject to the outcome of the audit, the committee recommends the
government consider taking proposals to the Council of Australian Governments
(COAG) for discussion.
6.98 The committee recommends
that universal free vaccination be extended to the babies and children of all
temporary migrants living in Australia, irrespective of their visa status.
8.253 The committee recommends
that the Department of Immigration and Border Protection review the procedures
used in cases involving severe worker exploitation to ensure that a
victim-centred approach exists in practice such that the potential victims of
people trafficking and slavery-like conditions are afforded an adequate
opportunity in a safe and secure environment to report any offences committed
8.263 The committee recommends
that the Migration Act 1958 and the Fair Work Act 2009 be amended
to state that a visa breach does not necessarily void a contract of employment
and that the standards under the Fair Work Act 2009 apply even when a
person has breached their visa conditions or has performed work in the absence
of a visa consistent with any other visa requirements.
8.269 The committee recommends
that Section 116 of the Migration Act 1954 be reviewed with a view to
amendment such that visa cancellation based on noncompliance with a visa
condition amounts to serious noncompliance. The committee further recommends
that Section 235 of the Migration Act 1954 be reviewed with a view to
amendment such that a contravention of a visa condition amounts to a serious
contravention before a non-citizen commits an offence against the section.
8.272 The committee recommends
that any new visa class or extension to a visa issued under changes arising
from the Northern Australia White Paper, and any visa issued pursuant to a Free
Trade Agreement, explicitly provide that any temporary worker is afforded the
same rights and protections under the Fair Work Act 2009 as an
Australian worker. The committee further recommends that any work performed in
breach of a condition under any new visa class or extension to a visa arising
from the Northern Australia White Paper, or any visa issued pursuant to a Free
Trade Agreement, does not necessarily void a contract of employment and that
the standards under the Fair Work Act 2009 apply even when a person has
breached their visa conditions.
8.285 The committee recommends
that Treasury and the ACCC review the Franchising Code of Conduct (and if
necessary competition law) with a view to assessing the respective
responsibilities of franchisors and franchisees regarding compliance with
workplace law and whether there is scope to impose some degree of
responsibility on a franchisor and the merits or otherwise of so doing.
8.286 The committee further
recommends that Treasury and the ACCC review the Franchising Code of Conduct
with a view to clarifying whether the franchisor can terminate the franchise
agreement without notice where there are reasonable grounds for believing that
serious contraventions of the Fair Work Act 2009 have occurred.
8.287 The committee further
recommends that consideration be given to the merits or otherwise of any
amendment that would allow the franchisor to terminate the franchise agreement
without notice where there are reasonable grounds for believing that serious
contraventions of the Fair Work Act 2009 have occurred.
committee recommends that universities consider how best they might develop
proactive information campaigns for temporary visa workers around workplace
9.231 The committee recommends
that the Department of Immigration and Border Protection provide funding on a
submission basis for non-governmental organisations, registered employer
organisations, trade unions, and advocates to provide information and education
aimed specifically at improving the protection of the workplace rights of
temporary migrant workers.
9.239 The committee recommends
that the identities of migrant workers who report instances of exploitation to
the Fair Work Ombudsman or to any other body should not be provided to the
Department of Immigration and Border Protection. The committee further
recommends that this prohibition should be written into the Memorandum of
Understanding between the Fair Work Ombudsman and the Department of Immigration
and Border Protection.
9.295 The Committee recommends
that the 'recklessness' defence in section 357(2) of the Fair Work Act 2009
be replaced with a 'reasonableness' defence.
9.299 The committee recommends
that the government commit to undertake an independent review of the resources
and powers of the Fair Work Ombudsman, and the penalty, accessory liability,
and sham contracting provisions under the Fair Work Act 2009. The
government should appoint, by 30 June 2016, an independent tripartite panel to
conduct the review.
9.300 The review should make
recommendations on the adequacy of the resources of the Fair Work Ombudsman;
the appropriateness of the powers of the Fair Work Ombudsman; the appropriateness
of the penalty provisions under the Fair Work Act 2009; the utility of
the accessory liability provisions under the Fair Work Act 2009; and the
utility of the sham contracting provisions under the Fair Work Act 2009.
9.301 The committee further recommends
that the review report be provided to the Minister of Employment by 30 October
2016, and that the report be tabled in both Houses of Parliament by 30 November
2016. The committee provides Terms of Reference for the review in Appendix 3.
9.309 The committee recommends
that a licensing regime for labour hire contractors be established with a
requirement that a business can only use a licensed labour hire contractor to
procure labour. There should be a public register of all labour hire
contractors. Labour hire contractors must meet and be able to demonstrate
compliance with all workplace, employment, tax, and superannuation laws in
order to gain a license. In addition, labour hire contractors that use other
labour hire contractors, including those located overseas, should be obliged to
ensure that those subcontractors also hold a license.
9.320 The committee recommends
that Australia ratify the International Convention on Protection of the
Rights of All Migrant Workers and their Families.
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