There have been recent calls for an overhaul of Australia’s skilled migration scheme.
The scheme is traditionally represented by the 457 visa (emanating from Section 457 of the Migration Act 1958 (Cth)). For example, an external reference group, established by the Rudd government in 2008, was formed to examine labour market pressures, the relationship between migration and labour skill shortages, and the visa subclass 457 system.
Matters addressed in the report included:
- Qualification requirements for sponsors and workers.
- Identification of administrative processes.
- Specification of rights and obligations of sponsors and workers.
- Acknowledgement of risks for sponsors (employers) and 457 visa employees alike, including safety and cultural issues.
Subsequently a visa subclass 457 integrity review, overseen by Barbara Deegan, commissioner of the Australian Industrial Relations Commission, published three issues papers covering minimum salary levels and labour agreements, integrity and exploitation, and English-language requirements and occupational health and safety.
The papers underlined the need for sponsoring employers to be held accountable for their performance in managing the 457 visa employment contract.
Issues relating to 457 visa-based contract include:
- Clarity of the employment relationship.
- Transparent compensation.
- Skills training.
- Requirement for English language.
- Implications for occupational health and safety.
The issues are also well-represented in case law as contributing factors towards development of trust and confidence between sponsor employers and 457 visa employees.
While 457 visa employees are protected by Australian labour law, a proportion of them may be less able or likely to gain access to assistance, relying instead on the ‘trustworthiness’ of the contract and confidence in their sponsor employers to meet the contract terms.
There are certain factors that contribute to trust and confidence in a contract. For the employer, there is a need to ensure that work is undertaken legally, safely and competently. For the employee, there is inherent vulnerability in understanding what is ‘legal’, being trained to undertake work ‘safely’, and knowing and agreeing to what constitutes ‘competence’ and subsequent fair payment in compensation for its achievement.
Case study: Armstrong v Healthcare Recruiting Australia
In this case, Healthcare Recruiting’s business included assisting overseas nurses to gain visas, accommodation and employment in Australia, as well as the opportunity to undertake further education to achieve Australian nursing registration. The nurses were brought in by Healthcare Recruiting on an ‘on-hire labour agreement’ basis (a situation that can sometimes obscure identification of the actual employer). Healthcare Recruiting deducted amounts from the nurses’ wages to pay for rent, agency (Healthcare Recruiting) fees and payment for airfares to and from Australia. There was a further deduction of ‘tuition fees’ towards tertiary nursing education, although neither opportunity to study nor reimbursement occurred.
The lack of trust and confidence in the contracts between the nurses and Healthcare Recruiting resulted in the Federal Magistrates Court of Australia deciding that the sponsoring employer (found to be Healthcare Recruiting, in spite of its argument that it was not the employer) had failed to honour its obligations.
While the Armstrong case is one example of a breakdown in trust between sponsor employer and 457 visa employees, it seems that the current crackdown is indicative of a lack of trust and confidence between the federal government and sponsor employers.
Trust and confidence
When reviewing the three-stage process for the visa (applying for sponsorship, nomination of position, and application by potential employee for the position), it is reasonable to state that the requirements for current and accurate documentation from both employer and employee are rigorous.
Imagine if all employment contracts are as clear and transparent as 457 visas, backed up as they are by business planning, reflected in realistic job descriptions with clearly identified skills and competencies? Imagine the potential for trust and confidence in relationships between employers and employees, both ‘home-grown’ and imported.
If what is written in the contract does not eventuate, the government can rightly question its confidence in the employer who wrote it. It’s also reasonable to suggest that the vast majority of employers are trustworthy in their use of the 457 visa scheme; the challenge is not to lose confidence in it.