Multiple changes have recently been made for immigration law in Australia and came into effect from 1 July 2024. This article will focus particularly on the changes that affect employers and employees.
Introduction to Workplace Justice Visa
The Australian Government introduced the Migration Amendment (Workplace Justice Visa) Regulations 2024 on 29 June 2024. This is an amendment of the Migration Regulations 1994 to implement a new workplace justice visa.
The Workplace Justice Visa will enable temporary migrants to remain in Australia for a period of time and undertake a workplace justice activity. This visa is part of a range of measures by the Australian Government to address migrant worker exploitation. These measures follow a commitment that was made at the Jobs and Skills Summit in response to findings by the Migrant Workers' Taskforce report, the Nixon Review, and the Migration Strategy, about the corrosive impact of migrant worker exploitation, and recognising the harm that exploitation causes to the migrant worker and their family. The commitment was also made in recognition of the potential long-term consequences if migrant worker exploitation is left unaddressed. Migrant worker exploitation has the potential to put downward pressure on wages and conditions for all workers overall, which would create 'an un-level playing field for those businesses who do the right thing'.
Features and Objectives of the Workplace Justice Visa
The Workplace Justice Visa has been designed to complement existing avenues that allow non-citizen workers to report exploitation and seek workplace justice. It operates as a new clause in the subclass 408 (Temporary Activity) visa, with the visa introduced by the Migration (Class of Persons for Nil VAC—Workplace Justice Visa) Instrument (LIN 24/056) 2024, which establishes no visa application charge for eligible applicants. Under the policy, a Workplace Justice Visa holder will be granted between 6 to 12 months to remain in Australia. This time period is extendable for up to 4 years. This visa, along with other reforms to the current system, are being introduced with the overarching objective of addressing migration-related barriers that deter temporary migrant workers from reporting instances of exploitation out of fear that their visa status would be compromised. The Workplace Justice Visa is only available to temporary migrants in Australia who have certification relating to their workplace exploitation matter from a participating government entity or accredited non-government party. With this visa, visa holders can work to support themselves whilst pursuing workplace justice. Members of the visa holder's family unit who are in Australia can also apply for this visa. The aim of this visa is to relieve temporary migrant workers of the stress that reporting exploitation may affect their visa status. The hope for this visa is that it will make the process of initiating claims to remedy breaches of workplace laws easier, and temporary migrant workers can assist in investigations of employer breaches. With increasing reporting, compliance targeting would also be benefitted, and enforcement officials will improve in their identification of dishonest and non-compliant employers, leading to more favourable conditions and outcomes for all workers.
Increase in the Temporary Skilled Migration Income Threshold (TSMIT)
The Migration (IMMI 18/033: Specification of Income Threshold and Annual Earnings and Methodology of Annual Market Salary Rate) Amendment (LIN 24/052) Instrument 2024 has come into effect from 1 July 2024. It increases the Temporary Skilled Migration Income Threshold (TSMIT) from $70,000 AUD to $73,150 AUD. This change, an increase of 4.5 percent, aligns with the annual Average Weekly Ordinary Times Earnings as of November 2023 and was introduced to continue protecting skilled migrant workers from exploitation. The new TSMIT applies to nominations lodged on or after 1 July 2024, with the previous TSMIT being applied to the assessment of nominations lodged before 1 July 2024.
Strengthening Reporting Protections
The Migration Amendment (Strengthening Reporting Protections) Regulations 2024 came into effect on 1 July 2024. These regulations prescribe circumstances where the visa of a temporary migrant worker, who has been affected by workplace exploitation, must not be cancelled- this is also referred to as non-discretionary protection. The regulations also outline matters that the Minister must have regard to when determining whether to cancel the visa of a temporary migrant worker, where the non-discretionary circumstances do not apply- this is referred to as discretionary protection. The purpose of these Amendment Regulations is to strengthen the protections that are available to migrant workers, to empower them and instil confidence in them to report workplace exploitation without fear of losing their visa status. This amendment aligns with other changes that have been made with the broader goal of addressing migrant worker exploitation.
Changes to Visa Conditions 8017, 8607, 8608
Changes to visa conditions 8107, 8607 and 8608 were announced on 21 June 2024 and were made in line with the Australian Government's Migration Strategy.
With a focus on tackling worker exploitation and driving productivity, the Australian Government aims to support labour market mobility for the following visa holders:
- Temporary Work (Skilled) visa (subclass 457)
- Temporary Skill Shortage visa (subclass 482)
- Skilled Employer Sponsored Regional (provisional) visa (subclass 494).
New Flexibilities for Visa Holders
The 8107 work limitation requires the visa holder to be employed by a particular employer, or to undertake specific activities in Australia.
The 8607 nominated occupation limitation requires the visa holder to only work in the occupation nominated in their most recent Subclass 482 (Temporary Skill Shortage) visa application.
The 8608 nominated occupation limitation requires the visa holder work only in the occupation nominated in their most recent Subclass 494 (Skilled Employer Sponsored Regional (Provisional) visa application.
Under the new changes, visa holders who stop working with their sponsoring employer will have more time to either find a new sponsor, apply for a different visa, or arrange to leave Australia. Visa holders will have up to 180 days at a time, or a maximum of 365 days in total across the entire visa grant period.
During this time, visa holders can work for other employers, including work in occupations not listed in their most recently approved sponsorship nomination. This allows visa holders to support themselves financially while they find a new sponsor, and provides employers with the flexibility to offer short-term contracts as a trial before offering sponsorship. However, this only applies to visa holders who have ceased working for their sponsoring employers. If visa holders are still working for their sponsoring employers, they must continue to work in their approved nominated occupation and only complete work that is consistent with the licencing or registration requirements for their occupation, unless they have been given an exemption.
These changes will apply to existing visa holders and individuals who are granted a visa on or after 1 July 2024. Any periods when a visa holder stopped working for their sponsor before 1 July 2024 will not count towards the new time periods.
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.