NASSCOM GLOBAL MOBILITYCONFERENCE 20132 MAY 2013BANGALORE, INDIA1www.fragomen.com
Agenda• Reforms to the 457 visa program• Reform of the Employer Sanctions Legislation• Increased powers for the Fair Work ...
The Future of 457 visas‘…the government has evidence that some employers – and I emphasisethat word, some – are using 457 ...
More quotes“Fact: there is clear evidence that in some growing sectors,importing workers on 457 visas is a substitute for ...
Quotes continued…“One in twenty temporary overseas workers in Australia is doing ITwork in New South Wales alone.It is jus...
Proposed reforms• “Make business sponsors declare that they will commit to employingAustralian citizens• Make training Aus...
Proposed reforms• Strengthen the market rate provision to stop undercutting of localconditions• Tighten on-hiring arrangem...
Employer Sanctions -Background to the changes• What is the current law ?– criminal offence to “knowingly or recklessly all...
What are the changes?• New “non-fault” civil penalty provisions contravened if;– Person allows (or refers), or continues t...
What are the changes?• “Allows to work” definition broadened– definition now captures more complex business arrangements w...
What are the changes?• Company executive officers now potentially liable !– New provisions introduced where civil and crim...
Tiered enforcement model12Education,thenescalation.Criminal Offences
Fair Work Ombudsman - role• Inspectors to have power to monitor compliancewith 457 visa conditions• Existing functions and...
Fair Work Inspectors - powers• Enter premises• Inspect any work, process or object• Interview any person• Require the prod...
Implications• Market rates specified in the visa approval -allowances, deductions• Duties and functions match job title an...
So what can you do to manage the risks ?16• Are your current internal processes up to scratch ?• Who has responsibility fo...
www.fragomen.com 17Q&A
www.fragomen.com 18THANK YOU !
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NASSCOM Global Mobility Conference 2013 - Mahrukh

Published on: Mar 3, 2016
Published in: Career      Business      
Source: www.slideshare.net


Transcripts - NASSCOM Global Mobility Conference 2013 - Mahrukh

  • 1. NASSCOM GLOBAL MOBILITYCONFERENCE 20132 MAY 2013BANGALORE, INDIA1www.fragomen.com
  • 2. Agenda• Reforms to the 457 visa program• Reform of the Employer Sanctions Legislation• Increased powers for the Fair Work Ombudsman• Mitigating Riskwww.fragomen.com 2
  • 3. The Future of 457 visas‘…the government has evidence that some employers – and I emphasisethat word, some – are using 457 visas to discriminate against locals. Thiscannot continue.Australians deserve the chance to get local jobs on local projects andthe government is determined to make that happen.In this context, the government has decided to introduce a set ofchanges to the 457 program to ensure employers give Australian workersa fair go.Brendan O’Connor Minister for Immigration and Citizenshippress release 23 February 2013.www.fragomen.com 3
  • 4. More quotes“Fact: there is clear evidence that in some growing sectors,importing workers on 457 visas is a substitute for spreadingimportant economic opportunity to Australian working people.Outside the resource states of Queensland and Western Australia,the single largest sector for temporary overseas work isn’t mining –or even construction – it is information technology.”www.fragomen.com 4
  • 5. Quotes continued…“One in twenty temporary overseas workers in Australia is doing ITwork in New South Wales alone.It is just not acceptable that information technology jobs, thequintessential jobs of the future, the very opportunities beingcreated by the digital economy, precisely where the big picture isfor our kids, should be such a big area of imported skills.”Extract from Address by the Prime Minister –14 March 2013www.fragomen.com 5
  • 6. Proposed reforms• “Make business sponsors declare that they will commit to employingAustralian citizens• Make training Australian citizens an enforceable requirement of 457applications• Make employers show that the position is genuine• Restrict the number of workers that a business can sponsor• Tighten the definitions of eligible positionswww.fragomen.com 6
  • 7. Proposed reforms• Strengthen the market rate provision to stop undercutting of localconditions• Tighten on-hiring arrangements so that sponsors cannot bringsomeone in and then let them work for an unrelated company at adifferent salary.”Brendan O’Connor Minister for Immigration and Citizenshippress release 9 March 2013.Additional Reform – English language requirementswww.fragomen.com 7
  • 8. Employer Sanctions -Background to the changes• What is the current law ?– criminal offence to “knowingly or recklessly allowing an illegalworker to work ..”– applies to normal employment or independent contractorarrangements– burden of proof on Commonwealth• Why change it?– “Major crackdown on Employing Illegal Workers”(Minister Bowen’s media release 21 July 2011)– difficult to prosecute offenderswww.fragomen.com 8
  • 9. What are the changes?• New “non-fault” civil penalty provisions contravened if;– Person allows (or refers), or continues to allow, another person towork , and the worker is unlawful– Person allows (or refers), or continues to allow, another person towork in breach of the work-related condition on their visaKnowledge / intention / state of mind not relevant• Statutory defences– were “reasonable steps” taken to check work rights ?www.fragomen.com 9
  • 10. What are the changes?• “Allows to work” definition broadened– definition now captures more complex business arrangements whichdisguise illegal worker hire practices, eg Company A has contract for services with Company B where B providesstaff to A for a 4 week period. Company B subcontracts this work to Company C , and one staff memberof C who is sent to A is found to be unlawful. Staff member employed / paid by C.Company A and B have participated in an arrangement for performance ofwork by illegal worker, unless defence available(above scenario taken from Explanatory Memorandum)www.fragomen.com 10
  • 11. What are the changes?• Company executive officers now potentially liable !– New provisions introduced where civil and criminal offences maybe committed in some circumstances by company officers– Similar provisions also exist for partnerships and officers ofunincorporated associations– Liability of other company employees ?• Extended investigative powers– Notice to Produce and Search Warrants– What can DIAC ask for and /or do if they turn up at your office ?www.fragomen.com 11
  • 12. Tiered enforcement model12Education,thenescalation.Criminal Offences
  • 13. Fair Work Ombudsman - role• Inspectors to have power to monitor compliancewith 457 visa conditions• Existing functions and powers - compliance withworkplace laws• Joint DIAC/DEWR media release 18 March 2013www.fragomen.com 13
  • 14. Fair Work Inspectors - powers• Enter premises• Inspect any work, process or object• Interview any person• Require the production of documents e.g.employee records and pay slips• No privilege against self-incrimination• Civil penalties for non-cooperationwww.fragomen.com 14
  • 15. Implications• Market rates specified in the visa approval -allowances, deductions• Duties and functions match job title and descriptionin the visa approval - substance over form• Employee records and pay slipswww.fragomen.com 15
  • 16. So what can you do to manage the risks ?16• Are your current internal processes up to scratch ?• Who has responsibility for checking work rights ?• Educating staff – ensuring that incorrect advice is not provided• Using VEVO• Conducting Regular AuditsYes, canwork !
  • 17. www.fragomen.com 17Q&A
  • 18. www.fragomen.com 18THANK YOU !

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