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Review of Temporary Residence Visas

Summary

RECOMMENDATIONS

RECOMMENDATION 1:   The Federal Government establish a national committee comprising of unions, employers, DIMA and any other relevant Federal Government Departments.  The Committee would meet at least three times a year to review the broad issues of the sponsorship program and provide advise to DIMA on increasing the effectiveness of the program and ensuring the protection of workers brought to Australia on Business Visas.

RECOMMENDATION 2:   That DIMA maintain a list of sponsors who have breached sponsorship obligations thus making them ineligible to sponsor, or be a part of any company or business intending to sponsor, Business (Short Stay) (456) and Business (Long Stay) (457) visa holders in the future.

RECOMMENDATION 3:   The Labor Council of New South Wales endorses the position contained within the Construction Forestry Mining and Energy Union Construction and General Division's submission that DIMA needs to send a strong message to unscrupulous sponsors and that substantial penalties be introduced to penalise sponsors who breach sponsorship responsibilities.

RECOMMENDATION 4:   A more rigorous criteria for the assessment of potential sponsors needs to be developed and implemented to ensure they are "persons of good character".

RECOMMENDATION 5:   A bond, repayable once the project and obligations are completed, be payable by employers bringing workers over to work on projects costing more than $500,000.00 with the bond increasing in proportion to the size of the project and the number of sponsored workers.

RECOMMENDATION 6:   The appropriate unions are notified of incoming workers, the industries in which they will be working and their location and that this information becomes a matter of public record.

RECOMMENDATION 7:   DIMA needs to immediately review the effectiveness of existing monitoring and review processes.

RECOMMENDATION 8:   DIMA, in conjunction with the Australian Tax Office, develop a review process that will allow the Department to monitorwage payments, including tax and superannuation payments, to ensure sponsorsare adhering to their responsibilities.

RECOMMENDATION 9:   the establishment of a transparentreview process to evaluate the revocation of visas by sponsors.  At thevery least, DIMA should review the final revocation of visas before thatrevocation is granted.

RECOMMENDATION 10:In order to address the limited amount ofinformation workers entering Australia under Business (Short Stay) (456) andBusiness (Long Stay) (457) visas receive in relation to their employmentrights, such visa holders should receive a "Working In Australia" information package translated into their own language.

RECOMMENDATION 11:The initial costs of translation should be coveredby DIMA on a cost recovery basis by increasing the fees paid by sponsoringorganisations intending to bring Business (Short Stay) (456) visa and Business(Long Stay) (457) visa holders to Australia.

RECOMMENDATION 12:Unions to be involved in the development of LabourAgreements with employers and the Federal Government

RECOMMENDATION 13:An increased commitment to training and thedevelopment of skills pathways within the Australian economy

INTRODUCTION

The Labor Council of New South Wales is concerned that the currentDepartment of Immigration and Multicultural Affairs (DIMA) assessment ofpotential employers for Business (Short Stay) (456) visa and Business (LongStay) (457) visa and the monitoring of the employment conditions under whichthese visa holders are working are not adequately addressed by the DIMA. This paper will discuss the following visas:

Business (Long Stay) (457):    for long-term temporarybusiness and skilled entry (for up to four years) to work in Australiancompanies or to set up a new business or branch of an overseas company; and

Business (Short Stay) (456):    for genuine businessvisitors seeking a short-term entry to Australia for business purposes (up tothree months at a time).

Labor Council also believes the same principles should apply to all othertemporary visas.

Over the past couple of months the Labor Council of New South Wales hasreceived a number of complaints from affiliates in relation to employersexploiting workers brought to Australia on Business Visas.  The latestcase involves eight stonemasons brought to Australia to work on a Hindu Templeat Helensburg.  The workers held Business (Long Stay) (457) visas and wereonly receiving $45 pay a week, plus $100 was being sent home to theirfamilies.  They were also living in temporary illegal accommodation on thesite.  These work practices had been in existence for over three yearswith no apparent monitoring by the Department of Immigration and MulticulturalAffairs (DIMA) in relation to the work and industrial conditions under whichthese people lived and worked.

This paper highlights the concerns of the Labor Council of New South Walesand our affiliated unions.  Currently, Labor Council is in the process ofcollecting further information and case studies in relation to suchissues.  The Labor Council of New South Wales would like to state that weendorse the recommendations contained within the Construction, Forestry, Miningand Energy Union's (Construction and General Division) submission[1].

Labor Council and its affiliates are committed to continuing to protect therights of all workers within New South Wales, being especially mindful of therights of workers who are open to intimidation and exploitation and not in aposition to advocate on their own behalves.

1.   ASSESSING SPONSORS

The Unions NSW is aware that it is the role of the Department ofImmigration and Multicultural Affairs (DIMA) to assess sponsors and thepositions they wish to fill with overseas workers.  DIMA's proceduralmaterial states that before an employer is approved as a sponsor they must beable to demonstrate that the business:

1.      is a lawfully and actively operatingbusiness

2.      is the direct employer of the temporarybusiness entrant

3.      is able to meet sponsorship undertakings

4.      will benefit Australia through theemployment of a temporary resident

5.      will advance skills through technologytraining

6.      agrees to abide by the sponsorship undertakings[2]"

The Unions NSW is particularly concerned with points 1,3 and 6.

A range of cases being dealt with by affiliated unions - ConstructionForestry Mining and Energy Union (Construction and General Division),Australian Liquor, Hospitality and Miscellaneous Workers Union (NSW Branch),Transport Workers Union of Australia (New South Wales Branch) - indicatesthat the current process is not ensuring workers brought to Australia onBusiness (Short Stay) (456) and Business (Long Stay) (457) visas are beingadequately protected from exploitation.

RECOMMENDATION 1:   The Federal Government establish anational committee comprising of unions, employers, DIMA and any other relevantFederal Government Departments.  The Committee would meet at least threetimes a year to review the broad issues of the sponsorship program and provideadvise to DIMA on increasing the effectiveness of the program and ensuring theprotection of workers brought to Australia on Business Visas.

1.1   LAWFULLY AND ACTIVELY OPERATING BUSINESS

The Labor Council of New South Wales believes there is a need for greateremphasis on assessing whether the principles of a business wishing to sponsoroverseas workers have ever been involved in conduct where they have failed toprovide workers with their legal entitlements or have breached any relevantState or Federal industrial responsibilities.

It is essential that DIMA is able to ensure that no employer or director ofany company intending to sponsor workers has participated in exploiting localor overseas workers.  Many of the overseas workers are vulnerable as theyare without social or professional networks that would enable them to seekassistance or representation should they stop receiving their entitlements orin more serious cases, face intimidation by their sponsor.

RECOMMENDATION 2:   That DIMA maintain a list of sponsorswho have breached sponsorship obligations thus making them ineligible tosponsor, or be a part of any company or business intending to sponsor, Business(Short Stay) (456) and Business (Long Stay) (457) visa holders in the future.

There is a lack of safe guards to ensure sponsors immediately inform DIMA ifthey are unable to meet their sponsorship obligations.

RECOMMENDATION 3:   The Labor Council of New South Walesendorses the position contained within the Construction Forestry Mining andEnergy Union Construction and General Division's submission that DIMA needs tosend a strong message to unscrupulous sponsors and that substantial penaltiesbe introduced to penalise sponsors who breach sponsorship responsibilities.

1.2   ABILITY TO MEET SPONSORSHIP UNDERTAKINGS

Given the situations outlined in our case examples [See Appendix 1], theLabour Council of New South Wales does not believe that DIMA are currently in aposition to effectively undertake the monitoring of businesses and theirability to meet sponsorship undertakings for Business (Short Stay) (456) visaand Business (Long Stay) (457) visa holders.

In addition, the Labor Council of New South Wales does not accept that themonitoring of the conditions under which these people, such as the stonemasonsworked and lived were the responsibility of State authorities.  Workerswho enter Australia are granted access because the Department of Immigrationand Multicultural Affairs assessed that their sponsors were prepared to acceptthe obligations and responsibilities for these workers.  It is theAustralian Federal Government who grants their work visas and thus isguaranteeing that their assessment of the potential employers of such peopleare willing and able to meet their obligations.  It is the role of theFederal Government and the Department of Immigration and Multicultural Affairsto monitor and review these employers and in doing so should make available totrade unions the locations of all such workers.  There also needs to be astronger test for employers than is currently being undertaken by DIMA.

RECOMMENDATION 4:   A more rigorous criteria for theassessment of potential sponsors needs to be developed and implemented toensure they are "persons of good character".

Secondly, there is a need for sponsors to provide a bond of entitlements foreach worker they sponsor to work in Australia.  This will ensure thatthere is a serious commitment from businesses to the need for skilled labourfrom overseas and secondly, will provide a safety net for workers who may beexploited.

RECOMMENDATION 5:   A bond, repayable once the project andobligations are completed, be payable by employers bringing workers over towork on projects costing more than $500,000.00 with the bond increasing inproportion to the size of the project and the number of sponsored workers.

RECOMMENDATION 6:   The appropriate unions are notified ofincoming workers, the industries in which they will be working and theirlocation and that this information becomes a matter of public record.

Under Temporary Business Entry, employers agree to meet a number ofsponsorship obligations including:

*         meet financialobligations to the Commonwealth-this includes eligible termination payments,Fringe Benefits Tax, superannuation contributions and deduction of taxinstalments

*         comply with Australianindustrial relations laws, Australian levels of remuneration and conditions of employment;

*         accept financialresponsibility, directly or through acceptable medical insurance arrangements,for all medical and hospital costs that sponsored persons and their dependantsmay incur in Australia

*         be responsible forrepatriation costs for sponsored persons and their dependants

*         co-operate fully in anychange in circumstances that may affect the capacity of the business to honourits sponsorship obligations

Labor Council believes there is a need for DIMA to review the way in whichit monitors the conditions under which overseas workers are employed. There is also a need for the introduction of significant penalties for sponsorswho breach their sponsorship obligations.

RECOMMENDATION 7:   DIMA needs to immediately review theeffectiveness of existing monitoring and review processes.

As part of the monitoring process, sponsors could forward wage andsuperannuation receipts to the Tax Office for Business (Short Stay) (456) andBusiness (Long Stay) (457) visa holders.  The Tax Office could then notifyDIMA of any discrepancies in sponsor payments.  Such discrepancies couldthen be investigated by DIMA.  Without such safe guards such visa holdersare far more susceptible to exploitation especially if they are employed in industrieswhere their ability to advocate is severely reduced.

RECOMMENDATION 8:   DIMA, in conjunction with the AustralianTax Office, develop a review process that will allow the Department to monitorwage payments, including tax and superannuation payments, to ensure sponsorsare adhering to their responsibilities.

1.3   Revocation of Visas

The Unions NSW is concerned about the level of power individualsponsors have to revoke worker's visas.  Such power places workers in verytenuous position should they wish to complain about the treatment they arereceiving from their sponsor or sponsoring organisation.

RECOMMENDATION 9:   the establishment of a transparentreview process to evaluate the revocation of visas by sponsors.  At thevery least, DIMA should review the final revocation of visas before thatrevocation is granted.

2.0  NEED FOR INFORMATION PACKAGES

RECOMMENDATION 10:In order to address the limited amount ofinformation workers entering Australia under Business (Short Stay) (456) andBusiness (Long Stay) (457) visas receive in relation to their employmentrights, such visa holders should receive a "Working In Australia" informationpackage translated into their own language.

The information package should contain, at a minimum, the followinginformation:

*         a copy of the industrialAward under which they will be employed;

*         information onsuperannuation and how it operates in Australia; and

*         contact numbers forappropriate advocacy and service bodies including:

*      contact details of the local Department ofImmigration and Multicultural Affairs Office [including a contact name orappropriate section]

*      contact details for the relevant unioncovering their area of work; and

*      contact details of an appropriate peak NESBorganisation or appropriate community association.

Literacy levels will vary for Business (Short Stay) (456) visa and Business(Long Stay) (457) visa holders, hence, there is a need to ensure the use oftranslated material. 

RECOMMENDATION 11:The initial costs of translation should be coveredby DIMA on a cost recovery basis by increasing the fees paid by sponsoringorganisations intending to bring Business (Short Stay) (456) visa and Business(Long Stay) (457) visa holders to Australia.

3.0  LABOUR AGREEMENTS

Currently Labour Agreements are formal arrangements negotiated between theCommonwealth Government (represented by the Department of Immigration andMulticultural Affairs and the Department of Employment, Workplace Relations andSmall Business), employers (eg industries, employer organisations and specificemployers) with unions being included as "optionally other interested parties".

The Labor Council of New South Wales strongly endorses the point made alsoin the CFMEU submission[3], that it is important for unions to beinvolved in the formulation of Labour Agreements to ensure that overseasrecruitment is not contrary to the improvement of employment and trainingopportunities for Australians.  Unions are ideally placed to support andassist in the development of appropriate employment, education, training andcareer path progression of Australian workers prior to entering into anagreement.

RECOMMENDATION 12:Unions to be involved in the development of LabourAgreements with employers and the Federal Government

In addition, unions are ideally placed to identify existing and emergingworkplace vacancies and skill shortages.  The involvement of unions wouldsignificantly increase the ability of Labour Agreements to more effectivelyidentify skill shortages, which in turn will benefit apprentices, trainees andworkers, individual businesses and the Australian economy.  A commitmentto the development of formal training targeting skills shortages will increasethe diversity of the skills base within Australia while developing additionalcareer paths.

RECOMMENDATION 13:An increased commitment to training and thedevelopment of skills pathways within the Australian economy

APPENDIX 1:   CASE STUDIES

Construction Forestry Mining and Energy Union (Construction and GeneralDivision)

There is a need for greater protection for these workers issues with workvisas.  Specifically, some of these workers being brought into the countryare offered employment contracts and then confronted with termination afterthey have paid for air tickets and have left their families.  Employersare exploiting the insecurity of these workers forcing them to work long hourswithout overtime and other Australia employment rights and entitlements

Australian Liquor, Hospitality and Miscellaneous Workers Union (NSW Branch)

The Regent Hotel has approximately 12 housekeepers from Indonesia and HongKong working in the hotel being paid at Indonesian and Hong Kong wages.  TheNSW Award rate for a housekeeper is approximately $442.00 a week.

The Union is calling on the Immigration Minister Phillip Ruddock toinvestigate how the Regent Hotel got permission to bring in this labour. We are also seeking that the workers receive Award wages.  Currently theyreceive about $80.00 a week plus an allowance for between $100 and $200 withmeals and accommodation.

We are also concerned about the Regent's commitment to training and skilldevelopment within Australia

South Coast Labour Council - 1 March 2001 - Helensburgh Hindu TempleWorkers

Eight workers in Australia, holders of Class 457 visas have been exploitedby their employer for many years without the knowledge of the FederalGovernment.  The union movement on the South Coast has been shocked anddisgusted with the revelations this week following the CFMEU raid on the templesite, which amounts to nothing short of 'slave labour'.

Request consideration be given by the Labor Council of New South Wales tothe following:

1.      Legal action on behalf of the workersagainst the Federal Government in relation to their 'Duty of Care' top the visaapplicant I terms of the failure of the Department of Immigration to ensurethat the employer abide by their undertakings to:

      a.   Abide by their IndustrialRelations obligations, including the payment of correct wages and applicableconditions

      b.   Provision of health cover toall holders of 457 Visas

2.      A campaign in conjunction with communitygroups seeking information regarding other 457 Visa rackets.

Transport Workers Union of Australia (New South Wales Branch) - AustralianIn bound Tourist Coach Industry

I write to bring your attention to the outrageous abuse of the working visaprogram and exploitation of driver guides working in the Australian inboundtourist industry.

Over the last five years industry sources estimate that almost 40% of workin the Australian tourist coach industry has been lost to companies andoperators exploiting driver guides brought into Australia on Working HolidayVisas, Business Visas, Executive Business Visas or Student Visa Programs.

A significant number of these companies are engaging these workers in breachof their visas.  More often than not, these driver guides are also paidwell below award wages or on sub-standard Australian Workplace Agreements andare regularly working with total disregard to Australian road traffic laws,RTA, DOT regulations and basic road safety standards.

Unfortunately, despite our repeated representations to the FederalDepartment of Immigration and Multicultural Affairs remain reluctant tourgently investigate the abuse of the visas in the tourist industry and pursuepunitive sanctions against operators and companies openly exploiting the system

[1] Construction, Forestry, Mining and EnergyUnion, Construction and General Division, Review of Temporary ResidenceVisas - Department of Immigration and Multicultural Affairs, 8 March,2001.

[2] Department ofImmigration and Multicultural Affairs, (2000), Sponsoring Temporary OverseasEmployees to Australia, Commonwealth of Australia, Department ofImmigration and Multicultural Affairs website (www.immi.gov.au),pp. 12.

[3] Construction,Forestry, Mining and Energy Union, Construction and General Division, Reviewof Temporary Residence Visas - Department of Immigration and MulticulturalAffairs, 8 March, 2001.

© Unions NSW 2001.
Unions NSW
Level 3, 4-10 Goulburn St,
Sydney NSW 2000
Ph: (02) 9881 5999 Fax: (02) 9261 3505

URL: http://council.labor.net.au/community/public/visas20010328.html
Last Modified: Wednesday, 08-Nov-2006 16:10:25 EST

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