Presenter: Ben Willis Houston: 6th February AACC Conference. Australian Visas How to Mobilize Foreign Workers

Transcription

1 Presenter: Ben Willis Houston: 6th February 2015 AACC Conference Australian Visas How to Mobilize Foreign Workers

2 Session overview Visiting Australia for Business Sending Workers to Australia 1

3 Visiting Australia for business Activities permissible on a visitor visa (business visitor stream): Making a general employment or business inquiry Negotiating, entering into or reviewing contractual obligations with a business Participating in an official government to government visit Participating in a conference, trade fair, seminar provided no fee is paid and no work is otherwise performed Business visitor visa holders are not permitted to Work for, or supply services to, an Australian organization or individual Participate in the sale of goods or services to the general public Work beyond the scope of a business visitor activity would be in breach of the work condition imposed on the visa 2

4 Sending workers to Australia Occupation Highly Skilled white collar Engineers, Project Managers, Geophysicists Trades and Technicians Mechanical and Electronic Technicians, Welders, Fitters Specialist semi-skilled Cert II and III occupations with experience that are not on the list of occupations - Riggers, Scaffolders, Mobile plant operators, Miners Unskilled roles - Cert I occupations: Kitchen Hands, labourers, trades assistants etc Visa Program Subclass 400 (short work) Subclass 457 (other work) Permanent residence Subclass 400 (short work) Subclass 457 (other work) Permanent residence Subclass 457 and permanent residence visas via Labour Agreement Possibly Subclass 400 Unlikely to be approved 3

5 Temporary Work (Short Stay Activity) (subclass 400) visa The subclass 400 visa is appropriate where The work is non ongoing 3 months or less (or 6 months in unusual circumstances with a strong business case) and without arrangements or expectation that it will continue beyond that time The work is highly specialised Typically managerial, professional or trade role that requires specialised skills and/or proprietary knowledge that cannot easily be sourced from the local labour market, duties of role are generic and/or related to normal operations The work will not affect Australians employment and/or training opportunities of Australians will not be adversely impacted by the person s presence in Australia 4

6 Overview of Subclass 457 visa Step 1 Business Sponsorship Step 2 Nomination Application Step 3 Personal Visa Application 5

7 Temporary Work visas (subclass 457) Valid for any period up to four years and can be extended. Family can also obtain a visa. Requires sponsorship by Australian business; or business operating outside of Australia intending to bring employees to either establish business activity in Australia or fulfill obligations under a contract. Key requirements Market rates English language testing some exemptions Skills compulsory skills assessment for certain occupations/nationalities (often in English) Sponsorship obligations Labour Market Testing (LMT) for Engineers, Trades and Nurses 6

8 Step 1 Business Sponsorship Two types of business sponsorship applications: Standard Business Sponsorship and Overseas Business Sponsorship Standard Business Sponsorship Australian businesses Overseas Business Sponsorship Overseas businesses setting up in Australia or with contractual obligations to fulfil Business Sponsorship is valid for 3 years Employers can sponsor an unlimited number of assignees 7

9 Business Sponsorship Standard Business Sponsorship Requirement to be actively and lawfully operating Overseas Business Sponsorship Requirement to be actively and lawfully operating overseas Business trading > 12 mths must meet training benchmarks expenditure of 1% of payroll on training Australians or 2% of payroll paid to industry training fund Business trading < 12 mths must provide plan to meet above benchmarks 457 visa holder can work for sponsoring employer or associated entity Lodged in Australia approximately 4 weeks to process Intention to set up Australian business or fulfil contractual obligations No training requirement No training requirement 457 visa holder can only work for sponsoring employer Lodged overseas at Embassy/Consulate up to 3 months to process 8

10 Position Step 2 Nomination application Must be on DIBP list of 457 occupations. List includes all white collar but not all tradesworkers (blue collar) Sponsor must certify that the position aligns with the tasks and duties listed in ANZSCO classification LMT for occupations like Engineers and all Trades Salary Must be in line with market rates Earnings of the nominee must be the same or higher than paid to an equivalent Australian employee Earnings can include allowances and benefits which are guaranteed and can be determined in advance, eg accommodation allowances, health insurance, project uplifts 9

11 Step 3 Visa application Skills Must hold the appropriate skills and experience as per ANZSCO Skills requirements can vary from degree only to experience being acceptable in lieu of a degree Health & Character Must meet health and character requirements High risk nationalities and those who have lived in a high risk country must complete a chest x-ray Family Can be included in the application or a separate application can also be made at a separate time Children over 18 can be included where they are dependent. Health Insurance The applicant and any family members must hold adequate health insurance Health insurance must be maintained for the life of the visa 10

12 Common delays in 457 process Non response or untimely response in providing documentation Where documentation submitted is not appropriate Pre-existing health conditions or abnormality where formal health examination completed Character concerns Canadian police clearances Department of Immigration undertaking character integrity checking (ie Form 80) Department of Immigration raises queries on any aspect of the application 11

13 Key Business Sponsor Obligations Notify immigration of the following within 10 days 1. change in work duties of sponsored person 2. cessation of employment 3. failure to commence employment Ensure market rates are paid throughout employment Ensure visa holder works in nominated occupation. Any significant change in occupation may require a new nomination application to be lodged. Maintain training benchmarks 12

14 Keep records of: Obligations Continued - Location of where work is carried out - Tasks being undertaken - Salary payments - How market rates are determined Not to recover costs of recruitment or sponsorship Pay return travel within 30 days if a request is made in writing by visa holder. Notify DIBP of this payment. 13

15 Why this matters Australia s compliance regime It is a criminal offence to employ a worker on the wrong visa. From 1 July 2013, this will be strict liability with civil penalties against companies and executives. This will apply to foreign companies operating in Australia. Administrative sanctions for sponsors. 14

16 Common Questions Should we incorporate? Can we just keep sending out guys for short stints until we get a foothold in the market? Can we send out our workers through an intermediary company? 15

17 Contact Ben Willis Director Client Services Fragomen Phone: Cell: