The Federal government has released its response to the independent review into the 457 visa programme, Robust New Foundations. While the Department has made an initial announcement outlining some of the changes to the programme the full details of the reforms are yet to be released.
The government's response supports the vast majority of changes proposed in the report. The primary goal of the report was to review the operation of the 457 visa programme to ensure that current systems provide sufficient checks and balances to ensure the integrity of the programme.
The Department is yet to provide detail on how many of these recommendations will be implemented but has provided an initial statement confirming:
– Training Benchmark A and B are to be replaced with an
annual contribution calculated by the size of the sponsoring
organisation. Funds will be paid to the Department of Industry and
directed to training in areas of need.
– It will be made unlawful for a visa holder to pay a sponsor
for sponsorship and penalties will apply.
– Labour Market Testing will be streamlined to reduce red
tape for employers.
– English language requirements will be softened to allow for
an IELTS score of 5.0 overall with a minimum of 4.5 in each
band.
– The exemption for 5 years' study in English will be
changed from 5 years' continuous study to 5 years'
cumulative study.
– The age limit for permanent residency through the 186 and
187 Temporary Resident Transition streams are to be reviewed as
part of the Skilled Migration and 400 Visa Series Review but the
government supports the recommendations to reduce current
requirements.
– The Ministerial Advisory Council on Skilled Migration will
not be replaced but the government is seeking advice on whether it
can be reconstituted with a particular focus on labour market
issues.
– Information for sponsors on compliance will be reviewed but
additional resources will not be allocated.
The changes are expected to occur over the next 6 months however some changes will not come into place until further consultation with stakeholders has taken place.
Eventus Immigration will provide further details of the reforms as they are announced.
A full breakdown of the Department's position on the recommendations is included in the table below.
Response to Proposed Reforms
Recommendation
1.1 That, in lieu of the existing Ministerial Advisory Council on
Skilled Migration, a new tripartite ministerial advisory
council, which is not necessarily prescribed in legislation, be
established to report to government on skilled migration
issues.
Government Response:
Supported in principle
1.2 That the new ministerial advisory council be supported by a
dedicated labour market analysis resource.
Government Response:
Supported
2. Acknowledging that, as the OECD has pointed out,
employer-conducted labour market testing is not "fully
reliable", and in the Australian context has proven
ineffective, that the current legislative requirement for labour
market testing be abolished.
Government Response:
Noted
3.1 That the Consolidated Sponsored Occupations List (CSOL) be
retained as a list of occupations which are at Skill Level 3
and above, and that the CSOL should be able to be amended by two
means: first, the addition of skilled occupations which can be
shown to exist in the community but which may not be on the ANZSCO
list; and, second, the refinement of the CSOL in cases where there
may be integrity or appropriateness concerns. Any occupations not
on the list, which are usually referred to as semi-skilled, may be
addressed as part of the Labour Agreement regime.
Government Response:
Supported
3.2 That the new ministerial advisory council provide advice on
those occupations where some concerns exist and recommend
additional requirements or limitations on occupations and/or
regions.
Government Response:
Supported
4. That the market rate framework continue to operate as a core
component of the 457 programme, but that the earnings
threshold above which there is an exemption from the need to
demonstrate the market rate should be aligned with the income level
above which the top marginal tax rate is paid (currently at
$180 000).
Government Response:
Supported
5.1 While there is an argument for abolishing the Temporary
Skilled Migration Income Threshold (TSMIT), that it
nevertheless be retained to allow for streamlining
within the wider programme, and that concessions to the TSMIT be
afforded under Labour Agreements, Enterprise Migration Agreements
and Designated Area Migration Agreements, as appropriate.
Government
Response:Supported
5.2 That the current TSMIT be retained at $53 900 p.a. but that
it not undergo any further increases until it is reviewed
within two years.
Government
Response:Supported
5.3 That the two roles currently performed by TSMIT (that is,
acting as a determination of the eligibility of occupations
for access to the scheme and as an income floor) be more clearly
articulated in the 457 programme, and that consideration be given
to accepting the eligibility threshold as up to 10% lower than the
TSMIT.
Government Response:
Supported
5.4 That the government give further consideration to a regional
concession to the TSMIT, but only in limited circumstances
where evidence clearly supports such concession.
Government Response:
Supported
5.5 That in circumstances where the base rate of pay is below
the TSMIT, the current flexible approach adopted by the
department, taking into account guaranteed annual earnings to
arrive at a rate that meets the minimum requirement of TSMIT be
continued and made more visible to users of the programme and their
professional advisors.
Government Response:
Supported
6.1 That the current training benchmarks be replaced by an
annual training fund contribution based on each 457 visa holder
sponsored, with the contributions scaled according to size of
business.
Government Response: Supported
subject to further consultation
6.2 That any funding raised by way of a training contribution from sponsors of 457 visa holders be invested in:
a) training and support initiatives, including job readiness, life skills, and outreach programmes for disengaged groups, particularly youth who have fallen out of the school system;
b) programmes allowing employers to take on
apprentices/trainees from target groups, including Indigenous
Australians and those in rural and regional
areas;
c) mentoring programmes and training scholarships
aimed at providing upskilling opportunities within the vocational
training and higher education sectors that address critical skills
gaps in the current Australian workforce. Target sectors include
those industries, such as nursing and the IT sector, that rely
heavily
on 457 workers; and
d) training and support initiatives for sectors of
critical national priority. Target sectors include industries
experiencing significant increase in labour demands, such as the
aged care and disability care sectors.
Government Response:
Supported
6.3 That funds raised through the training contribution be
dedicated to this training role and that the government
reports annually on how these monies are spent by the Department of
Industry.
Government Response:
Supported
6.4 That there be a new sponsor obligation to ensure that the
cost to the sponsor of the training contribution cannot be
passed onto a 457 visa holder or third party.
Government Response:
Supported
7.1 That the English language requirement be amended to an
average score. For example, in relation to International
English Language Testing System, the 457 applicant should have an
average of 5 across the four competencies (or the equivalent for an
alternative English language testing provider).
Government Response:
Supported
7.2 That greater flexibility be provided for industries or
businesses to seek concessions to the English language
requirement for certain occupations on a case by case basis, or
under a Labour Agreement, Enterprise Migration Agreement or
Designated Area Migration Agreement, as appropriate.
Government Response:
Supported
7.3 That consideration be given to alternative English language
test providers.
Government Response:
Supported
7.4 That consideration be given to expanding the list of
nationalities that are exempt from the need to demonstrate they
meet the English language requirement.
Government Response: Not
Supported
7.5 That instead of the current exemption which requires five
years continuous study, five years cumulative study be
accepted.
Government Response:
Supported
8.1 That there be targeted training for decision-makers in
relation to assessment of the genuine position
requirement.
Government Response:
Supported
8.2 That before decision-makers refuse a nomination on the basis
of the genuine position requirement, the sponsor be invited to
provide further information to the decision-maker.
Government Response:Supported
in principle
9. That the government should explore how skills assessment
could more appropriately recognise a visa applicant's
experience.
Government Response:
Supported
10.1 That Standard Business Sponsors should be approved for five
years and start-up business sponsors for eighteen months.
Government
Response:Supported
10.2 That as part of the government's deregulation agenda,
the department should develop a simplified process for sponsor
renewal.
Government Response:
Supported
10.3 That the department considers combining as many sponsorship
classes as possible.
Government Response:
Supported
10.4 That when more detailed information is available, the
department should investigate the alignment of overseas
business and Labour Agreement sponsorship periods with the general
Standard Business Sponsorship approval period.
Government Response:
Supported
10.5 That the timeframe for the sponsor to notify the department
of notifiable events as set out in legislation should be
extended to 28 days after the event has occurred.
Government Response:
Supported
10.6 That the department should explore options that would
enable the enforcement of the attestation relating to
non-discriminatory employment practices.
Government Response:
Supported
10.7 That it be made unlawful for a sponsor to be paid by visa
applicants for a migration outcome, and that this be
reinforced by a robust penalty and conviction framework.
Government Response:
Supported
11. That the government should review the fee structure,
especially for secondary visa applicants and visa renewal
applications.
Government Response:
Supported
12.1 That sponsors be required to include as part of the signed
employment contract: a) a summary of visa holder
rights prepared by the department; and b) the Fair Work
Ombudsman's Fair Work Information Statement.
Government Response:
Supported
12.2 That improvements be made to both the accessibility and
content on the department's website specific to 457 visa
holder rights and obligations, and utilising the
department's significant online presence more effectively to
educate 457 visa holders on their rights in Australia.
Government Response:
Supported
13.1 That consideration be given to creating streamlined
processing within the existing 457 programme as a deregulatory
measure. To maintain programme integrity, streamlining should be
built around risk factors including business size, occupation,
salary and sponsor behaviour.
Government Response:Supported subject
to further consultation
13.2 That should the recommended nomination and visa
streamlining outlined in this report be implemented, the
department should investigate a redefined accredited sponsor
system. Current accredited sponsors should retain their priority
processing benefits until their sponsorship ceases; however, no
further sponsors should be afforded accredited status until a new
system is implemented.
Government Response:
Supported
14.1 That Labour Agreement negotiation times be significantly
improved to enable a demand-driven and responsive pathway for
temporary migration, where the standard 457 programme arrangements
are not suitable.
Government Response:
Supported
14.2 That to enable the Labour Agreement pathway to be more open
and accessible for additional industry sectors, consideration
be given to the development of other template agreements that will
address temporary local labour shortages in industries of
need.
Government Response:
Supported
15.1 That 457 visa holders be required to work for at least two
years in Australia before transitioning to the Employer
Nomination Scheme or Regional Sponsored Migration Scheme, and that
consideration be given to the amount of time required with a
nominating employer being at least one year.
Government
Response:Supported
15.2 That consideration be given to reviewing the age
restriction on those 457 visa holders transitioning to the
Employer Nomination Scheme or Regional Sponsored
Migration Scheme.
Government
Response:Supported
15.3 That consideration be given to facilitating access for
partners of primary sponsored 457 visa holders to secure
permanent residence under the Temporary Residence Transition
stream.
Government Response:
Supported
16. That consideration be given to the allocation of more
resources to programmes aimed at helping sponsors understand and
comply with their obligations, whether
those programmes are delivered directly to sponsors or through the
migration advice profession.
Government Response: Supported
in principle
17. That greater priority be given to monitoring, and that the
department continue to enhance its compliance model to ensure
those resources are applied efficiently and effectively.
Government
Response:Supported
18.1 That there be greater collaboration between the department
and the Australian Taxation Office to uphold integrity within
the 457 programme and minimise the burden on employers.
Government Response:
Supported
18.2 That a change to 457 visa conditions be introduced to place
an obligation on the visa holder to provide the department
with their Australian tax file number.
Government Response:
Supported
19.1 That the Fair Work Ombudsman's current complementary
role in monitoring compliance and referral of findings to the
department for action should continue.
Government Response:
Supported
19.2 That the department should provide information in real time
that is both current and in a format compatible with those of
the Fair Work Ombudsman.
Government Response:
Supported
20.1 That the department monitor decisions of the Fair Work
Commission, so as to determine if sponsors have breached
obligations or provided false or misleading information.
Government
Response:Supported
20.2 That the department require sponsors, when lodging a new
nomination application to certify that there has been no
change to the information provided to the department in relation to
whether the business or an associated entity has been subject to
"adverse information" as that term is defined in the
legislation.
Government Response:
Supported
21.1 That dedicated resourcing be made available to the
department to enable the investigation and prosecution of
civil penalty applications and court orders.
Government Response: Supported
subject to further consultation
21.2 That the department disclose greater information on its
sanction actions and communicate this directly to all sponsors
and the migration advice profession as well as placing information
on the website.
Government Response:
Supported
22. That the department investigate the feasibility of system
improvements that facilitate greater linkages with information
held by other government agencies.
Government Response: Supported
in principle
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
