457 News – 19th April 2016

Welcome to a special mini edition of our newsletter which focuses on some changes to the Migration Regulations which come into effect on 19 April 2016.

What is changing on 19 April 2016?

On 19 April 2016, a number of changes to the Migration Regulations in relation to non-discriminatory recruitment practices, English language requirement exemptions and application validity come into effect.

These changes address integrity concerns arising from the Independent Review into Integrity in the 457 Programme (the 457 integrity review) and help streamline the application process.

Non-discriminatory recruitment practices

The Regulations are being strengthened for 19 April 2016 so that:

*           sponsors must declare that they will not engage in discriminatory recruitment practices –  amendments have been made to regulation 2.59(f) and 2.68(g); and

*           must comply with a new obligation not to engage in discriminatory recruitment practices – regulation 2.87C – see below

Reg 2.87C  Obligation not to engage in discriminatory recruitment practices

 (1)  This regulation applies to a person who:

(a) is or was a standard business sponsor; and

(b) is lawfully operating a business in Australia.

(2) The person must not engage in, or have engaged in, discriminatory recruitment practices during the period of the person’s approval as a sponsor.

(3) The obligation referred to in subregulation (2):

(a) starts to apply on the day the person is, or was, approved as a standard business sponsor; and

(b) ends when the person ceases, or ceased, to be a standard business sponsor.

Overview of the Measure

This measure implements a recommendation from the Independent Review into Integrity in the 457 Programme (the 457 Integrity Review) and its report titled ‘Robust New Foundations –A streamlined, transparent and responsive system for the 457 programme’.  Recommendation 10.6 of the review/report recommended ‘that the department should explore options that would enable the enforcement of the attestation relating to non-discriminatory employment practices.’

Prior to these amendments, paragraphs 2.59(f) and 2.68(g) of the Migration Regulations 1994 (the Regulations) provided that in order for a standard business sponsorship to be approved or varied under the Temporary Work (Skilled) (Subclass 457) visa programme, the sponsorship applicant must have attested in writing that the applicant has a strong record of, or a demonstrated commitment to employing local labour and non-discriminatory employment practices.  The attestation was not binding on the sponsor and the Department was unable to take action when an employer acted in a manner contrary to the attestation.

The measure in Schedule 1 creates a new sponsor obligation in Division 2.19 of Part 2A of the Regulations to require standard business sponsors to refrain from engaging in discriminatory recruitment practices. ‘Discriminatory recruitment practice’ is defined to mean a recruitment practice that directly or indirectly discriminates against a person based on the immigration status or citizenship of the person, other than a practice engaged in to comply with a Commonwealth, State or Territory law. The new obligation seeks to address a community concern that some employers may be relying on the Subclass 457 programme to employ foreign workers without having regard to the availability of local labour.  Related to the new sponsor obligation, the criteria for approval to become or remain a standard business sponsor (paragraphs 2.59(f) and 2.68(g)) have been amended to  require a written declaration that the applicant will not engage in discriminatory recruitment practices. The provisions also retain the existing requirement for an attestation that the applicant has a strong record of, or a demonstrated commitment to, employing local labour.

Effectively, this means that previous ‘attestation provisions’ are now binding on standard business sponsors operating in Australia.

What doesn’t it cover?

The new obligation is not engaged if discrimination in recruitment decisions is evident on other grounds such as sex, gender, race, social group or pregnancy. These issues are outside the remit of the Department and should be directed to other relevant agencies, such as the Fair

Work Ombudsman or the Australian Human Rights Commission.

 When does it apply?

The new obligation applies to sponsors from 19 April 2016 onwards, or the date from which they became an approved sponsor, whichever is later – up until the day their standard business sponsorship ends.

“The new obligation applies from 19 April 2016”

 Simplificaton of English language exemptions

Changes are also being made to regulation 457.223 and the related legislative instrument (IMMI15/028) in order to exempt 457 visa applicants from the Department’s English language testing requirements if they have already met the same, or better, English language requirements to gain an occupational registration or license.

 The amended instrument will apply from 19 April 2016 onwards to applications lodged on or after this date, as well as those applications that remain ‘on hand’ (i.e. decision has not yet been made by the Department)

 Why the change?

In circumstances where the registration and licencing authorities impose and assess English language requirements, it is duplication and ‘red tape’ for the Department to require the same or equivalent evidence via specified test results.

“Less red tape!”