Tougher Requirements Foreshadowed For Employers Of Overseas Workers

The Worker Protection Bill was introduced into Parliament on 24 September 2008 to strengthen the integrity of arrangements for all sponsored temporary visa holders, including those on 457 visas. Here is all the latest information regarding the details of the proposal.

The Bill proposes amending the Migration Act 1958 to allow for:

• Expanding sponsorship arrangements to cover organisations and businesses seeking to bring people to Australia on temporary visas other than the 457 work visa - for example, occupational trainees, entertainers, media staff and sports competitors. Currently the sponsorship arrangements apply only to employers of 457 visa holders and 470 professional development visa holders.
  
  
• Defining and increasing the range of obligations to be placed on employers or organisations and allowing for different kinds of obligations depending on the type of sponsorship approval being sought.
  
  
• Introducing a range of sanctions and civil penalties of up to $33,000 for employers and organisations found to have breached their sponsorship obligations.
  
  
• Expanding powers to monitor and investigate non-compliance with sponsorship obligations.
  
  
• Enhancing provisions for sharing information between all levels of Government and for disclosing information about sponsors to visa holders, and about visa holders to sponsors.
  
  

Importantly, the new provisions of the Bill are intended to apply to all existing sponsors, whether or not they were approved as sponsors prior to the commencement of the new legislation.

This means that existing sponsors will be required to comply with new and additional sets of obligations in respect of all visa holders currently sponsored by them, and will be subject to the new provisions relating to civil penalties, monitoring, investigations and information sharing.

It is expected that existing sponsors will be given sufficient notice to allow them to terminate sponsorship of existing visa holders if they are not prepared to commit to the new obligations framework in respect of existing sponsored visa holders.  It is not clear how significantly the new obligations will differ from existing obligations.

Sponsorship obligations

Details of the range and types of obligations to be placed on sponsors (including sponsors operating under a labour or other agreement) will be finalised towards the end of the year.

However the Department of Immigration released a discussion paper in June 2008 which outlined the range of obligations being considered for all sponsors, including the possibility of requiring sponsors to pay for income protection insurance; return travel; recruitment and visa costs; children's education and medical insurance, and that such costs cannot be reimbursed by visa holders to sponsors in the event they terminate their employment.

These matters are still under consideration and subject to consultation with stakeholders.

Sanctions and civil penalties

If an existing or former sponsor is found to have not complied with one or more of their sponsorship obligations, the Bill proposes that one or more of the following actions may be taken:

• Bar an existing sponsor from doing certain things such as nominating future workers for a period of time, or bar a former sponsor from making future applications for approval as a sponsor
  
  
• Cancel the sponsorship approval of an existing sponsor
  
  
• Impose a civil penalty
  
  
• Issue an infringement notice as an alternative to a civil penalty
  
  
• Take a security
  
  

Civil penalties are currently set at up to $6,600 for individuals (for example, partners of a partnership or members of the committee of management of an unincorporated association) and $33,300 for a body corporate, for each breach of obligation.

Monitoring and investigations

Sponsors are currently required, and will continue to be required, to comply with the Department of Immigration and Citizenship's requests for information. In addition, the Bill proposes the establishment of inspectors, who may or may not be persons already appointed as inspectors under the Workplace Relations Act 1996.

These inspectors are intended to have additional powers to enter premises without force, and to interview any person, or require documentation or anything to be provided to them.

Inspectors may require sponsors to produce a document or thing within a specified time being not less than 7 days.  Failure to provide a document or thing required by an inspector may attract a maximum penalty of imprisonment for six months.

Information sharing

The Bill proposes to significantly enhance the powers of information sharing between agencies of all levels of Government.

Information about existing and former sponsors and existing or former visa holders may be provided to other Commonwealth, State or Territory agencies in prescribed circumstances.

In these cases, written notification to the person about whom information is disclosed does not have to be provided. Amendments to the Tax Administration Act 1953 (TAA) are also proposed to enable information about current or former sponsors or visa holders held by the Australian Tax Office to be released to the Department of Immigration and Citizenship, notwithstanding the ‘taxation secrecy provisions' within the TAA.

The Bill also proposes to allow the Department to disclose information about sponsors to visa holders, and information about visa holders to sponsors, in certain circumstances. For example, it is envisaged that information may be disclosed to a visa holder about an amount that their sponsor has failed to pay in respect of a sponsorship obligation.

Such disclosure could assist the visa holder to bring an action to recover the unpaid amounts. In these cases, written notice about the details of the information that has been disclosed must be given to the person about whom information is disclosed, once the disclosure has been made.

The details of specific obligations that existing and future sponsors will need to agree to will not be available until later in the year once consultations have been finalised. 

However, employers may want to consider implementing strategies and procedures to minimise any risk of non-compliance with existing sponsorship obligations, and developing employment contracts that take account of the particular circumstances and limitations that apply to temporary visa holders.

Mark Dunphy and Karl Rozenbergs, Hall & Wilcox. For further information please contact Hall & Wilcox on +61 3 9603 3555 or visit their Web Site: www.hallandwilcox.com.au
First published: 1 October 2008.
Last updated: 1 October 2008.