Meat industry labour agreements

Transcription

1 Meat industry labour agreements Information for employers about labour agreement submissions September 2013

2 Contents Introduction 3 What is a meat industry labour agreement? 3 Assessment for meat industry labour agreements 3 Start-up companies 4 Submission requirements 5 About your business 5 Background to your labour agreement request 6 Occupations, qualifications and experience 7 Labour market demand 8 Training commitment 9 Salary 10 English language proficiency 12 Adverse information 12 Workforce profile and projections 13 Mandatory stakeholder consultation 13 Useful web links 15 Tools Business case proforma Consultation template letter Meat industry labour agreement FAQ Subclass 186 eligibility declaration 2

3 Introduction This booklet is a comprehensive suite of information about the Meat Industry Labour Agreement (MILA) and a step-by-step guide to presenting a business case to the Department of Immigration and Border Protection for access to overseas workers through a MILA. September 2012 It contains many elements of policy clarification based on client and stakeholder feedback and provides forms to assist you in making a complete and thorough proposal for a MILA and conducting meaningful and transparent stakeholder consultation. Complete submissions using the format provided with this guide can be sent to the department. meat.industry@immi.gov.au By post: The Director Labour Agreements Policy Section Department of Immigration and Border Protection PO Box 25 Belconnen ACT 2616 What is the meat industry labour agreement? A labour agreement is a formal arrangement negotiated between an employer and the Australian Government. It provides a flexible, tailored skilled migration arrangement for businesses and sectors with specific needs that sit outside the mainstream skilled migration program. A labour agreement will only be considered where a genuine skills shortage exists and there are no suitably qualified or experienced Australians readily available The MILA is the only pathway which allows a meat employer to recruit overseas workers as skilled meat workers. The labour agreement allows the temporary and permanent entry of skilled meat workers to work in Australian meat processing establishments. The MILA is a template labour agreement, meaning the terms and conditions of the labour agreement are non-negotiable and that no concessions (other than the concessions written into the template labour agreement) can be requested. Overseas workers employed under a MILA must be paid the Temporary Skilled Migration Income Threshold (TSMIT), currently 1 set at $53 900, unless Australian employees are paid a higher salary. If Australian employees are paid a higher salary, overseas workers must be paid the same. Businesses seeking access to a MILA will need to demonstrate genuine and significant demand for skilled meat workers and that this demand cannot be met from within the Australian labour market. The number of overseas workers requested under the labour agreement must represent a minority proportion of the meat employer s workforce. Compelling and concrete evidence is essential. The negotiation of a MILA may be a lengthy process and places onerous obligations on the employer. The MILA defines employer obligations such as the terms and conditions of employment for the overseas workers and training requirements for Australian employees. It also defines the required skills, qualifications and English language levels that overseas workers under the agreement must meet. Employers requesting access to a MILA should provide a comprehensive submission to the Australian Government, represented by the Department of Immigration and Border Protection. The department 1 As indexed and updated annually. 3

4 will not consider that negotiations have begun until a substantially complete submission of assessable material has been provided. The submission will be assessed by a case officer from the Meat Industry Labour Agreements team and additional information may be requested at any time during the negotiation process. There is no limit to the number of times a departmental officer may ask for additional information until they are satisfied that they have sufficient information on which to make a recommendation to the minister or authorised officer. Not all labour agreement requests are approved. The information provided in this pack is to help you prepare a quality submission. All information from the employer is treated as commercial-in-confidence. However, this information may be shared between relevant Commonwealth and state/territory government agencies including the Department of Education, Employment, and Workplace Relations (DEEWR), the Office of the Fair Work Ombudsman (OFWO), Fair Work Australia, the Australian Taxation Office and the Australian Federal Police. The department will also notify any stakeholders consulted during consultation whether or not a labour agreement was approved. The employer s request to access a labour agreement is taken as being consent for this to occur. Assessment of meat industry labour agreements The department assesses MILA submissions as quickly as possible upon receipt of the documents and will generally provide the employer an opportunity to submit additional material in support of their submission. Labour agreements take some time to negotiate due to the rigorous assessment of large amounts of information. The negotiation period for a labour agreement is generally six to eight months. However, if the employer has not provided a complete submission, including evidence of consultation with industry bodies and unions, the negotiation period will be longer. It is important to ensure that your labour agreement proposal best represents your skilled labour needs and forecasts as, once a labour agreement is in place a request for a variation to nomination ceiling numbers will not be considered within six months of the labour agreement being approved. The department will only consider requests for expedited assessment of the labour agreement request if the company can demonstrate a significant benefit to the wider Australian community in addition to the employment of Australians. The decision to prioritise a request is made at the absolute discretion of the department. If the labour agreement is approved, you will be able to nominate overseas workers (either onshore or offshore) who meet the requirements agreed to in the labour agreement 2. Start-up companies Labour agreements with start-up companies are unlikely to be approved until the company can demonstrate 12 months operation with supporting financial documentation. The department must be satisfied that the company is financially viable and not overly dependent on overseas workers. 2 In certain circumstances, it may be possible for workers onshore to lodge visa applications before the labour agreement is approved, but those applications cannot be processed until the agreement and nominations are finalised. Please contact your case officer to discuss further after you have submitted your proposal. 4

5 Submission requirements Please use the attached business case proforma to make your submission to the department. The proforma will assist you in addressing all requirements and in providing a well-ordered, properly evidenced submission ready for assessment by the department. You must be able to provide a compelling, evidence-based case to access overseas workers and your case must be supported by concrete, relevant and current evidence. A mandatory part of the process is that you consult with relevant industry stakeholders. Evidence must specifically relate to the legal entity that is requesting a labour agreement. In most situations, the records of associated entities cannot be used as evidence to support an employer s request. The following information is a guide to providing a thorough and appropriate submission to the department. About your business Refer to the business case proforma (item 1) to provide the following details: Registration details legal registered name of business Australian Business Number (ABN) Australian Company Number (ACN) (if applicable) Australian Registered Body Number (ARBN) (if applicable) Australian Stock Exchange Code (if applicable) state or territory in which the legal name is registered registered trading name/s business structure (sole trader, partnership, company, trust, or other entity) number of years of operation name of each director. It is important that this information, in particular registered business names and numbers, is accurate as the entity identified on the labour agreement will be entering into a binding agreement with the Commonwealth. Several recent cases, where businesses have had a labour agreement registered under a different name or ABN than was supplied to the Commonwealth through the negotiation process, have resulted in the labour agreement being suspended or invalidated, and a freeze being placed on the processing of sponsorship nominations and visa applications of overseas workers under the labour agreement until the legal situation was resolved. Head office street address suburb/town state and postcode postal address, if different from above your industry as defined by the Australian and New Zealand Standard Industrial Classification (ANZSIC). Employer contact details name position phone street address suburb state postcode postal address if different from above. 5

6 If using the services of a migration agent or other third party representing your company, please provide contact details and complete and attach Form 956 Operational locations of business Please provide the address details for all operational locations of the meat employer where the skilled meat workers are expected to be placed. If different from the head office location, please provide address/postal details. Financial viability The employer must provide a letter of support from a registered chartered accountant or a certified practising accountant stating that the meat employer has financial capacity to meet the migration obligations for the number of positions sought and for the period of the labour agreement. The meat employer must also have the financial capacity to meet their sponsorship obligations as stated in the MILA. Related entities (if applicable) Please provide the following details of any related entities to the meat employer: legal registered name of business ABN relationship to employer (parent, subsidiary, trust, other) street address suburb/town postcode. A labour agreement cannot be negotiated with a trust, but may be negotiated with a trustee, for example ABC Pty Ltd as trustee for the XYZ Unit Trust. Relevant industrial arrangements Please provide a copy of the relevant industrial instrument or the instrument's reference number that applies to Australian and overseas skilled meat workers. The Fair Work Act 2009 and information on the National Employment Standards are available from the Fair Work Australia website. The industrial instrument regulates the terms and conditions of all employees in Australia covered by the national workplace system, including overseas workers. Background to your labour agreement request See business case proforma (item 2) Provide a brief description of your business including: core business activities clients contracts structure reasons for seeking access to a labour agreement how your proposed labour agreement would be in the national interest the impact on the business if a labour agreement is not approved. 6

7 Occupations, qualifications and experience A MILA sets out the requirements, including skills and qualifications that overseas workers must have in order to apply for a temporary (Subclass 457) or permanent (Subclass 186) visa under the agreement. Under the MILA, employers may only nominate overseas workers under the occupation of skilled meat worker. The requirements for these visa subclasses are outlined below. Temporary Business (Long Stay) subclass 457 visa Skilled meat worker is not a recognised occupation under the Australian and New Zealand Standard Classification of Occupations (ANZSCO). It is only used in the context of the MILA to refer to a person who: Has been assessed and verified by a Meat Industry National Training Advisory Council (MINTRAC) registered assessor as having a minimum skill level of an Australian Qualification Framework (AQF) Certificate III in meat processing and demonstrates a minimum of three (3) years skilled work experience at a meat processing establishment acceptable to the signatories to the labour agreement or has been working in Australia on a subclass 457 visa at an Australian meat processing establishment acceptable to the signatories to the labour agreement for at least nine (9) months prior to being nominated by the employer. As the duties and tasks of a skilled meat worker reflect the duties and tasks referenced by a MINTRAC Certificate III, a skilled meat worker cannot be employed in a labouring position or undertake labouring or unskilled duties other than to the extent of circumstances prescribed under Clause 2 of Schedule 6 of the labour agreement. Please provide the estimated number of primary sponsored skilled meat workers you are seeking for each year of the labour agreement. Subsequent year numbers will be considered prior to the commencement of the next year of operation of the labour agreement. This is subject to the meat employer providing a written request for subsequent year numbers to the department. Employer Nomination Scheme Agreement Stream (subclass 186) visa (permanent) Overseas workers applying for a Subclass 186 permanent visa must demonstrate to the Australian Government s satisfaction that they possess appropriate skills and qualifications, including but not limited to: a. being assessed as skilled meat workers by a MINTRAC registered assessor, or other assessor approved by the government, as being appropriately skilled for the purposes of permanent entry; b. having worked in Australia on a subclass 457 visa in the position of skilled meat worker for a minimum of four (4) years, which can include any amount of time spent performing the duties of a skilled meat worker while technically nominated as a slaughterer or boner and slicer on a subclass 457 visa in a period prior to a company signing a labour agreement; and c. achieving a minimum IELTS score of five (5) in each of the four (4) test components, or achieving an Occupational English Test (OET) score of B, or undertaking 500 hours of English language tuition with a Registered Training Organisation. More information about this requirement is provided below. Nominations can only be made by a meat employer that is a signatory to the MILA. Employers that are a signatory to the MILA and wish to utilise the permanent residence pathway, must provide a signed Subclass 186 Eligibility Declaration form which is included with this information pack, to the Labour Agreements Policy Section by at meat.industry@immi.gov.au. 7

8 The Subclass 186 Eligibility Declaration is a list of subclass 457 visa holders that the meat employer declares to be eligible for nomination under the Employer Nomination Scheme Agreement Stream (subclass 186) visa in accordance with the MILA. The Subclass 186 Eligibility Declaration should include all subclass 457 visa holders that are/will become eligible for an employer sponsored subclass 186 visa during the current year term of operation and that the meat employer intends to nominate. For example, a labour agreement in effect from 1 September 2012 will mean: 1st year term of operation 1 September 2012 to 31 August nd year term of operation 1 September 2013 to 31 August The lodgement of nominations will be checked against the Subclass 186 Eligibility Declaration. The department will consider requests for annual nomination ceilings, both for subclass 457 and 186 visas, in the context of an employer s ongoing local recruitment efforts. The recruitment and retention of workers on subclass 457 and 186 visas should be supplementary to training and retaining workers from the local labour market. Employers will be required to continue to demonstrate local recruitment efforts, rather than simply transitioning subclass 457 visa holders to 186 visas and sponsoring large numbers of new subclass 457 visa holders. The number of subclass 457 and 186 nominations under a MILA will be reviewed annually. See business case proforma for format (item 3). The Australian Government retains the right to make the final decision on the number of positions approved under a labour agreement. For more information about the requirements for a Subclass 186 visa under a MILA, please refer to the fact sheet titled Information for Skilled Meat Workers - Subclass 186 Permanent Residence Visas. Labour market demand You must be able to demonstrate that there is a significant labour market need for the requested occupation and that there are no appropriately qualified Australian workers readily available. See business case proforma (item 4). You must provide detailed information about all advertising and recruiting efforts over the past six months. This includes the period the job was advertised for, the number of applications received, the number of applicants who were hired, and reasons why those unsuccessful were found to be unsuitable. You must use the table provided at item 5 of the business case proforma to provide details of your local recruitment attempts over the past six months. You will need to provide evidence of a demand (that cannot be met from the local labour market) for the occupation that has been nominated under the proposed labour agreement. Evidence may include but is not limited to: recent efforts to recruit from the Australian labour market for the occupation sought including copies of advertisement(s) placed within the last six months, the medium used, and the dates and length of time each advertisement ran the number of responses to the advertisement(s), the number of positions filled by Australians and general reasons for non-suitability of Australian applicants the location of the unfilled positions advertised evidence of participation in job and career expos, including any associated fees, the dates and locations of these and whether any positions were filled as a result 8

9 written evidence from clients demonstrating demand for the nominated occupation this may include service contracts, unfilled client orders or letters of support from client organisations relevant industry (or other) research released in the last 12 months related to labour market trends letters of support from state government authorities with the responsibility for employment strategies for retaining Australian workers. All subclass 457 positions under the MILA should be advertised with Australian Job Search for a minimum of 28 days prior to the lodgement of a nomination. If the employer has consulted with DEEWR, please provide evidence of strategies to fill vacant positions, including copies of s or agreed minutes of telephone conversations or meetings with Job Services Australia providers, about options to fill the vacant positions. Please include the number of positions filled as a result of these consultations. Details of Job Services Australia providers can be found on the DEEWR website at It is a key requirement of the labour agreement negotiation process that the employer must submit sufficient evidence for the departmental decision maker, or the decision maker s representative, to be satisfied that the employer has made genuine attempts to recruit workers from the Australian labour market. Training commitment Businesses requesting a labour agreement need to demonstrate that they have a satisfactory record of, and an ongoing commitment to, the training of Australians. This requirement supports the government s position that temporary migration arrangements should complement, not substitute for, investment in training initiatives for Australians. During the term of the agreement, the employer must maintain a good record of training Australians through the provision of employment, training and career progression. One of the following training benchmarks must be met for each year of the labour agreement: or or the equivalent of at least 1.6 per cent of total gross wages (all employees Australians and overseas workers) paid by the employer on structured training for Australians at least $1000 must be spent on structured training for each Australian employee of the employer the employer must ensure that the employment of Australian apprentices and/or trainees is maintained at a level of no less than 15 per cent of the total number of employees engaged in meat processing duties. See business case proforma (item 6). Please clearly state which of the above benchmarks you are intending to meet and provide evidence of a commitment to the training of Australians. This may include: evidence of internal and/or external training participation in Australian apprenticeships employment of trainees expenditure on formal courses of study for Australians at TAFE expenditure on both internal and external training of Australians. 9

10 Salary Workers on temporary visas need to have enough money to be self-reliant while in Australia, given that they are required to pay for their own private health insurance and do not have access to the same social safety nets or benefits and services as Australian citizens and permanent residents. For this reason, the government has set a Temporary Skilled Migration Income Threshold (TSMIT), which has been determined as a salary floor for overseas workers on the subclass 457 program. Other than this, terms and conditions of employment for skilled meat workers must be no less favourable than the terms and conditions of employment that would be provided to an Australian worker performing the same duties at the same location. This usually means that the award or enterprise bargaining arrangement that applies to Australians at the workplace where the skilled meat workers will be employed, will also apply to skilled meat workers. See business case proforma (item 7). The employer must provide the following information: salary arrangements for the skilled meat workers requested under the labour agreement salary arrangements for Australian workers in the same occupation, performing equivalent work at the same location the amount and purpose of deductions (if any) to be made from the skilled meat workers and Australian workers salaries the amount and purpose of any allowances paid to the skilled meat worker confirmation that the terms and conditions of employment will be no less favourable than the terms and conditions that are provided, or would be provided, to an Australian performing equivalent work in the employer s workplace at the same location; confirmation that the skilled meat worker will be paid either the market salary rate or the TSMIT, whichever is the greater the relevant industrial instrument covering the skilled meat worker s occupation the letter of appointment that will be provided to skilled meat workers. For the purpose of the MILA, the TSMIT is based on a 38 hour working week. The TSMIT must be paid on a regular basis (at least fortnightly) and must be met over a period of 12 months from the date of the visa holder s commencement with the meat employer, excluding those periods when the visa holder is offshore. This ensures that whilst the skilled meat worker is onshore they have sufficient means to support themselves, regardless of whether they are on an approved leave of absence. In addition to the TSMIT, any additional hours worked in excess of 38 hours must be remunerated in accordance with the provisions of the relevant industrial instrument applicable to Australian and overseas workers at the meat processing establishment. Payments that can be considered for the purpose of meeting the TSMIT include any payments that are provided for under the Relevant Industrial Instrument, relevant Enterprise Bargaining Agreement or the Migration Regulations, but exclude overtime and bonus payments. Workers Compensation benefits paid to the overseas skilled meat workers and any payments that are based on activity levels can also be considered for the purpose of meeting the TSMIT. 10

11 For the purpose of the MILA, the following table outlines the types of payments that can and cannot be considered for the purpose of meeting the TSMIT: Payments that can be accepted Payments for work performed during the employees normally scheduled or rostered hours of work including ordinary hourly rates and /or piecework earnings generated from any payment by results scheme. Payments that cannot be accepted Payments relating to overtime, work on RDOs, call outs, call backs and/or any other payments for extraneous work outside or beyond the employees normally scheduled or rostered hours of work. Allowances which compensate for disability including shift loadings or allowances. Allowances of a reimbursement nature including meal allowance. Amounts voluntarily salary sacrificed by the employee in accordance with the employers approved payroll deduction plan. Employer statutory superannuation contributions Payment for any leave including annual leave loading and cashed out leave entitlements. Payments made on termination of employment including payment for unused leave, payment in lieu of notice and/or severance pay. Post tax payroll deductions. Worker's Compensation benefits paid as reimbursement for expenditure such as medical or pharmaceutical costs. Payments for Public Holidays, either worked by the employee or not. Top up payments made as described below in relation to stand downs. Worker's Compensation benefits paid as compensation for loss of ordinary time earnings. Employer super contributions above the statutory level. 11

12 English language proficiency The MILA sets out the applicable English language requirements for overseas skilled meat workers applying for a temporary or permanent visa. The specific requirements for each visa category are outlined below. Temporary Business (Long Stay) subclass 457 visa Under the standard business sponsorship program, subclass 457 visa applicants are required demonstrate that they possess English language proficiency to the level prescribed under the Migration Regulations, currently a score of at least IELTS 5 in each test component or an OET score of B. The MILA provides some concession to this requirement. Overseas skilled meat workers whose last substantive visa was a subclass 457 and who are onshore are not required to demonstrate any English language requirement. For these skilled meat workers, a requirement of the labour agreement is that the employer must continue to provide them with accredited English language training until they meet the prescribed level of English language proficiency. For all other subclass 457 visa applicants, they must meet the prescribed English language requirement at the time of decision on their visa application. Employer Nomination Scheme Agreement Stream (subclass 186) visa (permanent) Overseas skilled meat workers must meet one of the following English language requirements to be eligible for the subclass 186 visa: or or or demonstrate that they have an International English Language Testing System (IELTS) score of at least 5 in each of the four test components of speaking, reading, writing and listening demonstrate that they an Occupational English Test (OET) score of at least B have completed, and can provide evidence of, at least 500 hours of English language tuition classes provided by a Registered Training Organisation (RTO) be a current passport holder of a passport of any of the following countries: - Canada - New Zealand - The Republic of Ireland - The United Kingdom - The United States of America. For further information regarding the English language requirements for subclass 186 under the MILA, please see the frequently asked questions (FAQ) information sheet Subclass 186 English Language Requirement: information for sponsors and applicants. Adverse Information Workplace relations compliance record You are required to provide a statement advising the department of whether the meat employer or any related entities have been investigated in the last three years by the Office of the Fair Work Ombudsman (OFWO), or former authority with this function, or relevant state government authority, in relation to compliance with workplace relations provisions. If so, please provide details of the outcome of these investigations. Occupational health and safety compliance record 12

13 Your business must provide a statement advising whether the meat employer or any related entities have been investigated or audited by the relevant state government authority in relation to its compliance with occupational health and safety provisions in the last three years. If so, please provide details of the outcome of these investigations. Migration compliance record Advise whether the business or any related entities are currently or have previously been an approved sponsor and/or a party to a labour agreement. If so, the following details must be provided: date of approval approval or agreement number associated business name. A statement must also be provided confirming whether the business or any related entity has been investigated or audited in the last five years by the relevant Australian or state/territory government authority in relation to its compliance with migration provisions. If so, please provide evidence of the outcome of these investigations. See business case proforma (item 9). Workforce profile and projections Employers seeking access to a MILA must demonstrate that the recruitment of overseas workers is only to supplement the Australian workforce and that a labour agreement will not undermine employment or training opportunities for Australians. Generally, a labour agreement is unlikely to be approved where more than one third of the employers workforce in Australia is comprised of overseas workers. Over the life of a labour agreement, there is an expectation that the employer will make ongoing efforts to reduce its reliance on overseas workers. A current workforce profile must be provided with projections (full time equivalents) of all employees engaged in meat processing duties for the next three years. See business case proforma for format (item 10). Mandatory stakeholder consultation The government is committed to improving the transparency and accountability of the temporary skilled migration program, to ensure that employment and training opportunities for Australians are not undermined and that the risk of exploitation of overseas workers is mitigated. Recruitment of overseas workers under the MILA should also be demonstrably in the national interest. Therefore, as part of the labour agreement negotiations, the employer is required to consult with relevant industrial stakeholders. Relevant industrial stakeholders include: the industry body which best represents the interests of the employer the union which best represents the interest of the employee, noting that the union must be consulted even if none of the current employees of the business is a union member any other agency or community group that may be impacted by the proposed labour agreement, for example schools or health services. You must include all of the following information: the requested number of overseas skilled meat workers under the proposed labour agreement the locations where you propose to place overseas skilled meat workers the proposed salary for the overseas skilled meat workers any other information deemed relevant by the employer. 13

14 To assist your stakeholders in making an informed comment on your labour agreement proposal, you may also choose to include: details of the qualifications and years of experience that will be expected of workers how skills assessment will be conducted the number of Australians currently employed in the occupations requested under the proposed labour agreement if concessions are sought, your proposed strategies to ensure worker welfare a basic workforce profile showing the proportion of your workforce in Australia which would be overseas workers if a labour agreement were approved how you propose to meet the training requirement. These requirements may vary the department will advise and update materials if this occurs. See business case proforma (item 11). You must provide each stakeholder with two opportunities to respond to the labour agreement proposal. Stakeholders should be advised on each occasion that their views will not provide a veto to the progress of a labour agreement and if a response is not received, the labour agreement negotiation process will continue. Stakeholder responses should be provided back to the employer within 21 days of the receipt of the request for comment on the labour agreement proposal. If no response is received, the employer must follow up and allow a further 14 days for response by the stakeholder. All reasonable steps must be taken to provide stakeholders with additional information they consider necessary to make informed comment on your proposed labour agreement. You should also take all reasonable steps to respond to questions or concerns raised by stakeholders. The department is unlikely to proceed with negotiations unless all such matters are addressed satisfactorily. Copies of all of the employer s written request(s) for comment on the proposed labour agreement and the response(s) should be sent to the department. If there is no response from the stakeholder(s), the employer will need to provide the department with a copy of the follow-up request. If the department is unsatisfied with the level of engagement, your case officer may contact any of the parties involved in consultation to request further action. The employer may choose to provide the stakeholder with a copy of the labour agreement submission. The department recommends that the stakeholder is advised that the information contained in the submission is in-confidence and should not be disclosed to any other party without the employer s permission. Contact us If you have any questions about the MILA process or its requirements please contact the meat industry labour agreements team. meat.industry@immi.gov.au 14

15 Useful website links Department of Immigration and Border Protection Market salary rates requirements Skills assessment English language proficiency Health insurance Australasian Meat Industry Employees Union (AMIEU) Department of Education, Employment and Workplace Relations Fair Work Australia Safe Work Australia 15