ON-HIRE LABOUR AGREEMENT    

Australia & New Zealand

Current holders of Subclass 457 visas that were decided prior to 1 October 2007 are not affected by these changes. Their visa remains valid under SBS and the conditions of their visa remain in force until the visa expires. Similarly, the validity of visas held by secondary visa holders (ie dependent family of sponsored employees) are not affected. The validity of their visa will not be affected if their employer enters into a labour agreement whilst they are on a current Subclass 457 visa. If their (on-hire) employer wishes to re-sponsor them, then the company will need to seek access to a labour agreement (also see 5 below).

Nominations lodged prior to 1 October 2007 under an SBS which were not decided by DIAC before 1 October will continue to be considered under SBS arrangements. If the nominations are approved, employers may lodge new visa applications under SBS in line with the approved nomination. Any new nominations (and associated visa applications) lodged from

1 October must be processed in accordance with the new arrangements.

Nominations applied for on or after 1 October 2007 will only be considered if they relate to a position to be filled within the on-hire company’s own organisation (eg an accountant to audit their own books). If an on-hire company seeks to nominate a position on or after 1 October for the purposes of supplying the services of an overseas worker to an unrelated business, the nomination could not be accepted.

On-hire companies may seek to access a labour agreement. Any on-hire companies wishing to access the industry labour agreement may request to do so by contacting the Labour Agreement Section in DIAC National Office by email at on-hire.industry@immi.gov.au.

That office will provide the enquirer with details of the Agreement requirements to be satisfied in order to be approved to access the agreement. As the Department of Employment and Workplace Relations (DEWR) is a joint party to the labour agreement, the on-hire company’s response to these requirements will be forwarded to DEWR for comment before a decision is made on their ability to access the labour agreement.

The visa holder should complete and lodge an application for a further visa on paper form 1066, with the appropriate fee at their nearest DIAC Business Centre before the visa expires. They would normally be granted a bridging visa which will enable them to remain in Australia while their employer seeks a labour agreement. If the employer is not a party to the on-hire industry labour agreement, the employer should request access to the agreement as soon as possible. If their request to access is successful and the labour agreement signed by all parties, the visa application processing will continue. If their request to access is declined then the visa application will not meet the criteria for the visa.

These questions move through the template labour agreement.

6. What is a Deed of Agreement ? How does it bind my company/directors ?

A Deed of Agreement is a legally binding instrument that sets out the parties' rights and obligations. The department is unable to provide advice to an organisation as to whether it should enter into the Deed of Agreement. It is up to each organisation to seek independent professional advice in that regard.

7. What is the ASCO ? Where do I find it ?

ASCO is defined in Clause 4 of the labour agreement as "Australian Standard Classification of Occupations Second Edition". It is available from the Australian Bureau of Statistics website: http://www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/1220.01997?OpenDocument

8. What is the Legislative Instrument for the subclass 457 visa program?

The Legislative Instrument made pursuant to regulation 1.20B is available from the Department’s website:

9. Is there a cap on the number of labour agreements that will be approved for the on-hire industry?

No.

10. What if I don’t want to bring people in for 3 years, can the labour agreement be for a shorter period?

Yes, a shorter period may be stipulated in the agreement.

11. Is it important for me to know all about the different sections of the Migration Act and Migration Regulations quoted throughout the labour agreement? How can I find out them and what they mean ?

If you are uncertain about any aspect of the agreement you should seek advice from a registered migration agent.

12. How do I know how much the MSL is for my application?

You should refer to the legislative instrument made for the purposes of regulation 1.20B. The legislative instrument is available from the Department’s website:

13. There is a lot of immigration jargon in the agreement - eg about ‘subclasses’ etc - do I need to know all about them?

If you are uncertain about the meaning of any ‘jargon’ in the agreement please seek advice from the Department or a registered migration agent.

14. Should I get an immigration lawyer to explain all this and help me decide whether to apply for an LA and to prepare my application? Where can I get help?

It is up to you whether you seek advice from a registered migration agent in preparing your application. Information on registered migration agents is available from the Migration Agents Registration Authority website: http://www.themara.com.au

15. Can I lodge Nominations or Visas in DIAC offices other than the office specified? If so will this affect the processing times or the decision?

The office or offices at which applications under the agreement may be lodged is determined by the Commonwealth. If you have a preference for the office in which the applications are processed, you should indicate this preference to DIAC

16. What are registered migration agents? Why do I have to use one? Where do I find one?

There is no requirement that you use a registered migration agent to submit your application.

Information on registered migration agents is available from the Migration Agents Registration Authority website: http://www.themara.com.au.

17. At the time of completing my application for the LA I will not know what contracts I may need to fill over the next 12 months or so, so I will not know the occupations or the numbers etc. I can only apply on the basis of my current needs. How can I allow for such future changes?

The labour agreement allows for the nomination of occupations in ASCO Major Groups 1 to 4 as specified in the Legislative instrument mentioned in Question 8 above. It also specifies a maximum number of nominations for each year the agreement is in operation generally and not in relation to particular occupations. While this allows for considerable flexibility, your response to Schedule B should indicate your expectations in relation to the likely occupations.

18. If I only want to bring out a small number of overseas workers will this work against my application - is preference given to large companies bringing out large numbers of people?

No, requests to access a labour agreement will generally be processed in the order they are received.

19. Do I have to provide accommodation for the worker & family, what happens if I don’t?

No, you are not required to provide accommodation. However, you are required to provide appropriate on-arrival assistances, including helping Skilled Overseas Workers to find accommodation and establish their household (refer Clause 7.102 of the Agreement). Where companies choose to meet this obligation by providing accommodation, companies must also comply with the obligations set out in paragraph 7.66(v) of the Agreement.

20. I am concerned about the "Commonwealth’s absolute discretion", it sounds very powerful/ daunting - can you explain what this means to me?

It means that the Commonwealth’s discretion to do things under the agreement such as authorising the company to recruit workers, imposing conditions on such an authorisation or suspending such authorisation is not fettered by the terms of the agreement.

21. How will you check if a company has a strong and satisfactory record of training ? Who decides this and on what basis? WilI be told if and why it is decided not to be satisfactory ?

The Department of Employment and Workplace Relations (DEWR) will assess whether the company has a satisfactory record of training Australian citizens and permanent residents. You will be informed if DEWR has determined that your record is unsatisfactory and the reasons for that assessment.

22. How will you check if a company has a satisfactory record of compliance and an on-going commitment? Who decides if it is satisfactory and on what basis? Will I be told if and why it is decided not to be satisfactory?

DEWR will assess whether the company has a satisfactory record of compliance with Commonwealth, State and Territory workplace relations laws. You will be informed if DEWR determined that your record is unsatisfactory and the reasons for that assessment.

24. What is MODL? How do I find out about it?

The Migration Occupations in Demand List (MODL) is defined in Clause 4 of the Agreement as meaning those occupations and specialisations identified in the relevant Legislative Instrument and which have been assessed by DEWR as being in national demand and with good job prospects. The MODL is available on the Department’s website at:

25. Who decides, and on what basis, that I have the "financial viability to fulfil my obligations"? What are the guidelines for this?

DIAC and DEWR will jointly assess whether your company has the financial viability to fulfil its obligation under the agreement based on financial information provided by the company

26. Who decides what is a "reasonable request by the Commonwealth"? What are the guidelines for "reasonable"?

What is reasonable in the circumstances is usually a matter of agreement between the parties. Where there is a dispute between the parties in a particular circumstance, what is reasonable will be determined by an independent third party.

27. What does "..the costs incurred by the Commonwealth.. " but not limited to "..the cost of public hospital services.." mean? What other costs which are not mentioned will I have to pay?

The costs that the Commonwealth expects you may have to pay are set out in paragraph 7.1(iii) of the Agreement. However, it is possible that the Commonwealth will incur other costs in relation to a particular visa holder. Where such costs are incurred the Commonwealth may seek to recover those costs from the company. An example of such costs is the cost of processing a frivolous further visa application onshore.

28. Under what circumstances will the company information I provide be shared between all these government authorities ?

Information will only be shared where it is relevant to determining the company’s compliance with the agreement.

29. What type of services, other than provision of accommodation, are involved in clause 7.24?

Clause 7.24 is intended to cover any services.

30. What does clause 7.25 mean? What are the implications for me?

DIAC will advise you of certain countries in which Skilled Overseas Workers may be required to pay money to secure the opportunity of their recruitment. This information will inform the steps you take in order to comply with Clauses 7.25 and 7.26.

31. In clause 7.26, what sort of enquiries is a company expected to make, how, with

whom? Is asking the worker sufficient?

In most cases, asking the worker will be sufficient to discharge the obligation under this paragraph. However, where the company has been informed under Clause 7.25 that workers from particular countries may be required to pay such fees or the company’s suspicions have been otherwise aroused, a higher degree of scrutiny is expected.

31. Are our nominations considered under the same requirements as sponsored 457 nominations?

Nominations will be considered in accordance with regulations 1.20G and 1.20GA of the regulations.

32. What if the Letter of Appointment is for 12mths employment – what will the visa period be?

This clause has been amended to provide for a 12 month appointment.

33. For how long is the on-hire company responsible for the worker after they cease work with the company? What are those responsibilities? What if they just "walk out" without notice?

The company’s obligations in relation to a Skilled Overseas Worker continue until that worker is granted a further substantive visa or departs Australia permanently. The obligations are the obligations set out in the agreement. It is not relevant how the relationship between the Company and the worker ends.

34. Given that an onhire hire company is recruiting/supplying staff on behalf of its client companies /end users according to their needs, it is unrealistic to expect the on-hire company to reduce reliance on overseas workers !

On-hire companies are expected to make a proportionate contribution to reducing reliance on overseas workers and training Australian citizens and permanent residents in the same way the end-user employer would be had they employed the skilled overseas workers directly.

35. Do all workers have to have their skills/qualifications assessed?

No, workers will only need to have their skilled assessed if required by DIAC or DEWR. This will be determined on a case-by-case basis.

36. What happens if the Onhire company cannot arrange for the worker to be on-hired fulltime – that is there may be gaps of a week or so before we can arrange a new placement - or for the duration of their visa?

The on-hire company is bound by the obligations under the Agreement regardless of whether the Skilled Overseas Worker’s services are on-hired or not. Companies must, for example, continue to pay at least the MSL during this time.

37. In relation to clause 7.64, will the labour agreement Deed of Agreement give Onhire companies the ‘authority’ to seek this information from their clients?

No, it only affects the rights and obligations of the parties to the deed.

38. In relation to clause 7.66, is the onhire company required to provide accommodation? What if the client company provides this or the worker organises it himself?

See answer to Question 21. It is permissible for the Skilled Overseas Worker to organise his or her own accommodation or for accommodation to be provided by the Client Organisation.

39. If the worker agrees to pay their return travel or hospital costs is this OK?

No, these costs must not represent a cost directly or indirectly to the visa holders.

40. How will what are ‘fair and reasonable’ accommodation charges be assessed?

Generally, according to prevailing market conditions.

41. Must the Skilled Overseas Worker be informed of the terms of conditions etc in writing or will verbal information suffice?

The Skilled Overseas worker must be provided with a letter of appointment setting out the terms and conditions of employment.

42. Does information from the Commonwealth have to be provided individually to overseas workers or will putting it on the office/factory notice board be sufficient?

The Commonwealth will specify how the information is to be provided in the particular circumstance.

43. In relation to clause 7.101. This seems reasonable in a country town when a number of people will suddenly arrive needing housing, schooling, health etc but rather impractical or unnecessary where, for example one overseas worker comes to work/live in a metropolitan area? Is there a guideline on this?

The degree of community impact management expected will be proportionate to the relative number of skilled overseas workers compared with the size of the community.

43. In relation to clause 7.117. What is ‘reasonable times’ and ‘reasonable notice’? Who will access the premises and inspect? Will the police be involved? This all sounds ‘heavy-handed’.

See answer to Question 27 for a discussion of reasonable. Premise may be inspected by Departmental officers, the police will generally not be involved.

44. Will the company be forewarned of any action being taken towards suspension? If this happens can I appeal against suspension?

Companies will be given the opportunity to comment on any proposed suspension to be imposed by the Commonwealth.

45. What happens to the Skilled Overseas Workers if the agreement is suspended, can they continue or is it the same situation as in clause 14.2?

Skilled Overseas Workers may continue if the authorisation to recruit further workers is suspended. This is different to Clause 14.2

46. What will be the priority processing times under this agreement for nominations and visas? These have been taking several months under a sponsorship, causing great hardship in some cases.

Cases are assessed on their individual merits and the time taken to process each case depends on a variety of factors. Where full documentation is provided with the application, this can lead to shorter processing times. Processing service standards for the Subclass 457 visa are available from the DIAC website. See: http://www.immi.gov.au/about/charters/client-services-charter/index.htm

Information provided by Vin Tully, Skilled Migration Advisor, Seconded from the Department of Immigration & Citizenship to the RCSA