TSS Immigration welcomes the Department of Immigration and Border Protection’s (DIBP) ongoing review of the Skilled Migration and 400 series visa programme.
Written By Michael Walker
Mon, Feb 2, 2015
In a global economy and as a member of the OECD, Australia is very much a stakeholder in the global movement of labour. However, the movement of labour between countries, must be undertaken within a robust legislative framework, so as to protect the sovereignty of a nation, while underpinning a healthy domestic labour market and at the same time, optimise the opportunities for industry growth and viable economic performance. Moreover, as trade pacts and economic treaties become increasingly more important in the global economy, it is equally important, that where practicable, businesses may move, engage or transfer labour to meet their global business needs.
For Australia and the businesses which operate both on a global scale as well as within Australia, the challenge is that business complies with domestic Australian Immigration Law, while expeditiously meeting its human resource requirements in a timely manner. This is often a difficult and problematic proposition, as, despite the best laid plans, unforeseen and often external forces will impact on this need. These forces may impact on project timelines, resource requirements, in terms of material and personnel and financial imperatives.
Even in difficult global economic times, it is envisaged that more people will be deployed to work overseas over the next 10 years
In 2012, a survey revealed that 60 percent of business respondents cited Australia’s skills shortages as an ongoing issue within Australia’s economic environment and these shortages were trending toward being a permanent challenge confronting Australian businesses, within the foreseeable future, requiring a more strategic planning approach into the future.
So, in relation to Australian Migration Law and Policy, the question which regularly confronts Australian businesses is, what is the most appropriate and compliant visa to enable a required overseas staff member to work within the Australian operations of the business?
Accordingly, this submission seeks to examine the current Australian ‘work/business’ visa regime, with the objective of distilling the issues which may currently lead to a substantive lack of compliance and make recommendations which provide greater flexibility to Australian businesses needing to bring in human resource from overseas, while preserving the integrity of Australia’s Migration program.
600 Series - Visitor Visas
This visa category, of course, permits the holder to enter Australia as a visitor, for either business purposes or simply tourism. While the visitor who comes to Australia as a tourist, does so for pleasure and is not permitted to enter for any other primary purpose, it is far less clear how the 600 series visa legitimises a business visitor to Australia and ensures their compliance as a Business visitor entrant.
While the 600 series visas permit the holders to enter Australia for “business visitor purposes’, many visa holders and the Australian business with which they may seek to engage, are unclear as to just what sort of business activity within Australia is permissible and what is not. Acknowledging that a condition of such visas does not permit the holder to engage in remunerated work while in Australia, the list of what is allowable, in a business sense, is not exhaustive. While making general business enquiries, engaging in contract negotiations or participating in conferences or seminars is specified as allowable, many Australian employers remain unclear if the holder of this visa, should they work for an overseas arm of the same business, is permitted to attend business meetings with their Australian clients, engage in in-house training sessions or provide strategic business planning advice to the Australian arm of the business.
While it is acknowledged that the evidence is only anecdotal, TSS Immigration have more than a passing suspicion that the 600 series visa is being used for substantially more than the articulated conditions attached to these visas and therefore, non-compliance may be a bigger issue than otherwise perceived.
In the September quarter 2014, there were in excess of 100,000 business visitor visas granted. With such numbers, clearly compliance becomes an inherent issue and detection of non-compliance is difficult to gauge.
However, the line between what constitutes a business activity in Australia, as opposed to actual work remain unclear to many Australian businesses.
Long Stay (Temporary) Employer Sponsored - 457 Visa
TSS Immigration welcomes and supports the recommendations handed down to the Minister of Immigration, by the Independent Panel, which reviewed the 457 visa regime. Entitled; Robust New Foundations - A Streamlined, Transparent and Responsive System for the 457 Programme, the Panel’s recommendations were provided to the Minister in September 2014.
The 457 visa is governed by a strict legislative framework, designed to protect the sponsored overseas worker from exploitation, while protecting the rights and employment conditions of Australian employees. Such visas are granted for a period of over 3 months, up to 4 years and carry with them a set of conditions, of which, primary among those conditions is that the visa holder may only work for the sponsoring Australian employer, with the exception of Medical Doctors.
The intent of the 457 visa programme is to provide more certainty to sponsoring Australian employers, in terms of the tenure of their sponsored workers as employees in the medium to longer term. It was always envisaged that the use of this programme would be to merely fill short term skill gaps in the labour market. However, while the legislative framework is designed to protect the sponsored worker, while protecting the workplace integrity for Australian employees, the nature of that legal framework means that the rigid nature of the legislative framework provides for little, if any, short-term flexibility in the business cycle. This is particularly so in the more highly skilled occupations, where many projects are results driven and have a finite life span. There is no capacity, under the 457 programme, for the visa holder, to perform a range of highly specialised tasks, for a variety of end-user Australian businesses.
Moreover, the compliance requirements for Australian Employer sponsors legislated under strict liability, are extremely onerous and carry with them significant civil and possible criminal penalties if breached.
However, it is by no means suggested that the integrity of the 457 visa programme should be in anyway lessened via a dilution of the legal instruments which protect both a sponsored overseas worker and Australian workers. Rather, it is recommended that closer liaison between Government and Australian Businesses ought to occur, so as a better understanding may be obtained, about the constant changing needs of business, in an ever changing global economic environment, particularly in relation to skills needs, shortages and how overseas skilled migration may actually assist Australian businesses to grow, thereby providing greater employment opportunities to Australians, rather than less.
400 Series Visas - ‘Highly Skilled Work’Historically, shorter stay work visa have been available, but for business, have been seen as limited in their value, in terms of meeting Australian business needs. However, these visas previously only allowed for a maximum 3 months stay and were only available to those individuals who were to perform “highly skilled work’. In November 2014, the Department raised the stay available for this visa to 6 months.
Implicit in the examination of what constitutes “highly skilled” is that a fair modicum of discretion would be exercised by a decision maker.
In its discussion paper, entitled Reviewing the Skilled Migration and 400 Series Programmes the Department stated:
“In the current climate of globalisation, it is imperative for Australia’s long term prosperity to maintain a competitive advantage in identifying, attracting and retaining overseas skilled workers. The Australian Government has therefore placed great importance on the need for a clearer, deregulated skilled migration visa framework that will help shape and define Australia’s economic future. To this end the Department of Immigration and Border Protection is undertaking a review of the current skilled migration and 400 series visa programmes.
There are six principles which will guide this review:
1. Simplicity in design supports increased comprehension and usability.
2. Structural flexibility is critical to ensure changing skilled migration needs can be met.
3. Employment outcomes should be a key driver for Australia’s skilled migration programmes.
4. Skilled migration must support and complement the Australian labour market.
5. Integrity is essential to maintain the continued acceptance of a skilled migration programme.
6. Support the whole of government deregulation agenda to reduce red tape and regulatory costs for Australian business and industry.”
Indeed these espoused philosophies are most welcome and it is hoped that any recommendations which may emanate as a result of the review of the program, will carry with them the spirit of the expressed objective of the Departmental paper.
In line with these objectives and keeping in mind the apparent anomalies for Australian businesses within the 600 series business visitor visa category and understandably rigid legislative framework of the 457 programme, TSS Immigration believe that the 400 series has the potential to provide a bulwark between these categories.
Take the case of an Australian Multi-National infrastructure business, which has projects throughout the world. They engage an extensive team of professional engineers, geologists, environmental scientists, petro-chemical experts and land remediation specialists. The professionals may fly at very short notice from one project in the northern hemisphere to assist and consult in a start up project in South East Asia. On the way, they come to the Australian office to oversee the design phase of the project into implementation. Further, they may also consult to other Australian businesses who have a stockholding in the same project.
While we believe the ‘highly skilled” provision ought to be maintained in the 400 series, we consider the following recommendations would boost the take up of the visa, take pressure off an already overloaded compliance regime for the 457 visa programme, both for the Employer sponsor and for Departmental compliance monitoring and provide greater flexibility for Australian business which operate in global markets.
1. Maintain the ‘highly skilled’ requirement.
2. The application for the visa be based on the demonstrated skill of the applicant and not solely reliant on the invitation of one sponsor.
3. Increase the period of stay from 6 months to 12 months. This provides some margin for error on project time line overruns or down time due to unforeseen circumstances such as weather conditions or requirement equipment supplies not being supplied on time.
4. Permit the visa holder to work for and with other Australian Businesses which have a stakeholding in the same or complementary project.
5. Allow for onshore visa extensions, where the project has not been completed.
From the evidence available, it is likely that of the some 100,000 people who entered Australia on series 600 visas, ostensibly for “Business” stays, the likelihood of non-compliance is extremely high, yet the bona fides of the business activities undertaken may well be of genuine benefit to Australian business and the economy overall.
Conversely, the extremely rigid nature of the 457 programme, the compliance with sponsor obligations and lack of mobility between employment, restrict the ability of Australian businesses to engage the services of highly skilled labour, with minimum lead times, so that projects of high net worth economic value to Australia may continue with minimum interruption, to completion.
Given the nature of the global economy of which Australia is inextricably a part, TSS Immigration consider that by providing more flexibility in the 400 series visa programme, Australian businesses would be afforded greater ability to meet the constantly changing environments in which they must operate and compete, thereby providing a considerable economic benefit to Australia.
Michael Walker, Visa Services Manager, Registered Migration Agent, MARN 0006651
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