Project Agreements. Information for employers requesting a project labour agreement May 2015

Transcription

1 Project Agreements Information for employers requesting a project labour agreement May 2015

2 Table of Contents What is a project agreement?... 4 What is a labour agreement... 5 Duration of a labour agreement... 5 The decision maker... 5 Making a request... 6 Contact Details... 6 What are the requirements for a project labour agreement?... 7 Endorsement... 7 Business details... 7 Financial viability... 8 Occupations and numbers of overseas workers... 8 Labour market need... 8 Training... 8 Adverse information... 9 Redundancies What will my labour agreement contain What are your obligations under a project labour agreement? Mobility Sponsorship obligations How can you access overseas workers? Project Agreements Information for employers (May 2015) Page 2 of 24

3 Occupations Qualifications and experience Salaries, terms and conditions Visa grant Registration and licensing Managing project labour agreements Reporting Obligations Monitoring and Audits Termination and Suspension Variations Confidential information and disclosure Pro-Forma: Request for Project Labour Agreement Project Agreements Information for employers (May 2015) Page 3 of 24

4 What is a project agreement? The project agreement programme allows infrastructure or resource development projects with demonstrated skill and labour shortages to access to temporary skilled and specialised semi-skilled temporary overseas workers through the subclass 457. The project agreement programme is designed to complement existing Australian government initiatives to address skill and labour shortages by ensuring that shortages do not create constraints on major projects and jeopardise Australian jobs. Construction of large resource or infrastructure projects may result in significant peak workforce demands which cannot be met by the local labour market. The need for a project agreement may be triggered where labour market conditions threaten the ability to attract sufficient skilled, qualified Australian workers during these peak periods. A project agreement provides confidence, early in project planning, that workforce needs can be met should these shortages eventuate. This provides investor certainty enabling projects to proceed, and in doing so may support job creation for Australian workers. Employers seeking a project labour agreement must ensure Australians are provided first opportunity for employment, prior to the recruitment of overseas workers under associated labour agreements. A project agreement has a two tiered structure: 1. A project company representing employers within a project will enter into an overarching project deed of agreement with the department. This agreement will be in the form of a deed of agreement and it will outline, among many matters, the occupations and any concessions agreed to, that will facilitate the recruitment of overseas workers on a project. 2. Under the overarching project deed of agreement, selected employers endorsed by the project company will enter into a labour agreement with the Commonwealth to sponsor overseas workers on the project under the terms and conditions agreed to in the overarching deed of agreement. A labour agreement will only be approved where suitably qualified Australians are not available. As an approved sponsor, employers will be able to directly sponsor overseas workers in the approved occupations under the Temporary Work (Skilled) (Subclass 457) visa programme. Project Agreements Information for employers (May 2015) Page 4 of 24

5 What is a labour agreement A labour agreement is a formal arrangement between an employer and the Australian Government. It provides a flexible, tailored skilled migration arrangement for business and sectors with specific needs that sit outside the mainstream skilled migration programme. Under the project agreement programme, employers may seek a labour agreement, where endorsed by the project company, for the occupations and concessions agreed to in an overarching project deed of agreement. Under the project agreement programme, a labour agreement: allows an employer to recruit skilled overseas workers for occupations approved under the deed of agreement, where suitably qualified Australians are not available; and requires employers to meet the terms and conditions agreed to under the deed of agreement. The project agreement programme is designed to address genuine labour market need during peak project workforce demands rather than to accommodate an employer s preference to employ a particular overseas worker. It is targeted at skilled or specialised semi-skilled occupations. A labour agreement defines employer obligations such as the terms and conditions of employment for the skilled overseas workers and training requirements for Australian employees. It also defines the required skill and English language levels that overseas workers under the agreement must meet. Duration of a labour agreement The validity of a labour agreement will be consistent with the employer s contract under the project. It cannot exceed the duration of the overarching deed of agreement with the project company. The decision maker The decision to enter into a labour agreement rests with the minister or their delegate. If the minister agrees to enter into a labour agreement, the employer will have 28 days to accept, sign and return the agreement to the department. The agreement will only commence once the department signs the labour agreement. Project Agreements Information for employers (May 2015) Page 5 of 24

6 Making a request Employers requesting a project labour agreement should use the information provided in these guidelines to help prepare a quality request. The request and supporting documentation must be submitted electronically to: project.agreements@immi.gov.au. Once a complete request is received, the department aims to complete the assessment within three months. Requests must be made using the proforma included in these guidelines. Incomplete requests, or requests not made using the proforma, may be returned. Employers considering the use of a migration agent are advised to ensure that the migration agent is registered with the Office of the Migration Agents Registration Authority. Further information on the use of registered migration agents is available at: and If the services of a migration agent or other third party representative are being used, a completed Form 956 must be included with the request. Please note that there are no priority processing arrangements for requests made using a registered migration agent. Contact Details If you have any questions or require further information, please contact the department. By post: labour.agreement.section@immi.gov.au Director Labour Agreement Section Department of Immigration and Border Protection PO Box 25 BELCONNEN ACT 2616 Project Agreements Information for employers (May 2015) Page 6 of 24

7 What are the requirements for a project labour agreement? To enter into a labour agreement, you must be able to show that: you have been endorsed by the project company your business is lawfully operating and has been actively operating for at least 12 months in Australia you are the direct employer your business is financially viable there is a labour market need you have met the training requirements there is no relevant adverse information against your business there have been no redundancies in the last 6 months in occupations for which you are seeking overseas workers. You must also provide: your business details details of the occupations and numbers of overseas workers requested Endorsement The project company must endorse you before you can request a labour agreement and nominate overseas workers. The project company will need to provide the department with a letter of endorsement for you to become an approved sponsor. The letter of endorsement must provide confirmation: that you have been contracted to provide certain services to the project of the type of services being provided of the duration of the contract that the request for overseas workers is consistent with the contract that the number of overseas workers requested is reasonable given current labour market conditions in that location. Following your endorsement by the project company, you must request a labour agreement from the department. You must complete the pro-forma: request for a project labour agreement to make your request. If the department approves the request, the department will enter into a labour agreement with you. You will then become an approved sponsor under the project agreement and can proceed to nominate overseas workers. Business details Your company must be an Australian legal entity and be the direct employer of the requested overseas workers. You must complete the pro-forma and complete the following information: registration details organisational overview contact details Project Agreements Information for employers (May 2015) Page 7 of 24

8 membership composition industry affiliation. Financial viability You must provide a letter of support from a registered chartered accountant or a certified practising accountant stating the business has financial capacity to employ and meet the sponsorship obligations for the number of positions sought and for the period specified in the labour agreement. It must also certify that the business has been actively operating for at least 12 months in Australia. Occupations and numbers of overseas workers You may only request the occupations endorsed by the project company. Occupations must be referred to by their six digit code under the Australian and New Zealand Standard Classification of Occupations (ANZSCO). Labour market need You must provide a comprehensive written statement of the labour market need for the requested occupation(s), demonstrating ongoing shortages. This includes a project workforce profile illustrating the composition of the business current and future anticipated workforce on the project, as well as evidence that you have made significant efforts to recruit workers from the Australian labour market within the previous six months. The project workforce profile must provide the following information on workers employed, or expected to be employed, by you on the project for each year over the life of the proposed labour agreement: the number of Australians (citizens and permanent residents employed) the number of any overseas workers already employed under the Temporary Work (Skilled) (Subclass 457) visa programme the number of temporary overseas workers (e.g. working holiday makers, student visa holders, New Zealand nationals with work rights etc) employed; and the total number of people employed. Evidence of your domestic recruitment efforts should include details, for each requested occupation, of advertising undertaken within the past six months, including the period the job was advertised; the number of applicants who were hired; and reasons why other applicants were unsuccessful; or provide other compelling evidence of why no suitable Australian workers are available. The department will only enter into a project labour agreement where it has been satisfied that Australians have been provided first opportunity for jobs. See pro-forma: request for a project labour agreement. Training Employers under the project agreement are required to contribute to the training of Australians. The training requirement for the project agreement mirrors the training requirement under the standard subclass 457 visa programme. Project Agreements Information for employers (May 2015) Page 8 of 24

9 You must meet either training benchmark A or B: training benchmark A: recent expenditure to the equivalent of at least two per cent (2%) of the gross payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business; or training benchmark B: recent expenditure to the equivalent of at least one per cent (1%) of the gross payroll of the business, in the provision of training to employees of the business who are Australian citizens or Australian permanent residents. More detail on the training requirement is available on the department s website: If your company is already an approved sponsor for the subclass 457 programme, you will be required to continue to meet your existing training benchmark at the payroll figure that reflects the additional employees engaged on the project. If your company is not an approved sponsor under the standard subclass 457 visa programme you will need to demonstrate you meet the training requirement prior to entering into a labour agreement. You will be required to continue to meet training requirements as an obligation under the labour agreement. Adverse information Adverse information may include, but is not limited to, information about a person becoming insolvent, or contravening (or allegedly contravening) a Commonwealth or state/territory law relating to: discrimination immigration industrial relations occupational health and safety people smuggling and related offences slavery, sexual servitude and deceptive recruiting taxation terrorism, or trafficking in persons and debt bondage. You must declare in the proforma: request for a labour agreement, whether or not there is any adverse information, as outlined above, relating to you or an associated company (including previous) entities. In particular, you must also declare whether or not you, or any associated (including previous) entities have, in the past five years, been: investigated or audited by the Office of the Fair Work Ombudsman, or former authority with this function, or relevant state or territory government authority, in relation to compliance with workplace relations provisions investigated or audited by the relevant state or territory government authority in relation to compliance with occupational health and safety provisions, or investigated or audited in relation to compliance with migration provisions. Project Agreements Information for employers (May 2015) Page 9 of 24

10 Redundancies You should provide details of any redundancies (either within your organisation or any associated entities) that have occurred in the last six months. What will my labour agreement contain Your labour agreement will outline, consistent with the agreed terms of the project agreement: location of employment number and occupation(s) of the overseas workers you may access under the labour agreement English language proficiency requirements minimum qualifications and experience requirements relating to skills assessment, registration and licensing minimum salary requirements, and any concessions. No changes to the terms and conditions agreed to under the project agreement will be considered under your labour agreement. Please contact the project manager of the project agreement for further details. Your labour agreement will also contain your sponsorship, reporting and monitoring obligations. You must make sure you understand these before signing your labour agreement. Project Agreements Information for employers (May 2015) Page 10 of 24

11 What are your obligations under a project labour agreement? Mobility Approved sponsors under a project agreement are not able to transfer workers outside the project site(s), except in limited circumstances. This restriction prevents the misuse of project agreements as a backdoor entry for concessional overseas workers intended for employment elsewhere. Overseas workers are able to travel outside the project site(s) for work related reasons for short periods of time, where their work is consistent with the declared duties of their position. You must seek approval from the department if an overseas worker will be working outside the project site(s) for more than three months in a twelve month period. Sponsorship obligations Employers must comply with the sponsorship obligations agreed to within their labour agreement. These obligations help protect overseas workers from exploitation and also ensure the program is being used to meet genuine skills shortages, and not undercut local labour wages and conditions. You must meet the following obligations: cooperate with inspectors; ensure equivalent terms and conditions of employment; keep records; provide records and information to the Minister; provide information when certain events occur; ensure the visa holder works in the nominated occupation, program or activity; not to recover, transfer or take actions that would result in another person paying for certain costs; pay travel costs to enable sponsored persons to leave Australia; pay costs to locate and remove unlawful non-citizens; provide training; and sponsored persons must be employed on a full time basis (on-hire is not permitted under the project agreement program ). Some obligations apply beyond the term of sponsorship approval. More information on the sponsorship obligations can be found at: Employers who breach sponsorship obligations will be subject to sanctions including financial penalties and may have their labour agreement suspended or terminated. Project Agreements Information for employers (May 2015) Page 11 of 24

12 How can you access overseas workers? Before you can employ an overseas worker, you should first nominate the position the worker will occupy. Nomination is the process of identifying a position to be filled by an overseas worker. The nomination process identifies: the occupation is relevant to the position to be filled the skills and experience required for the position whether the base rate of pay meets or exceeds the temporary skilled migration income threshold; the terms and conditions of employment for Australians employed in the same occupation on the project; where the employee will be working that you meet any other conditions set out in the labour agreement As part of the subclass 457 nomination application, you will be required to demonstrate you meet the conditions set out in their labour agreement for nominating an overseas worker. You will also be required to identify the proposed visa applicant who will work in the nominated position and any accompanying family members. Further information on nomination is at Occupations You will be asked to certify in writing that the tasks of the position to be filled includes a significant majority of the tasks of the nominated occupation listed in the Australian New Zealand Standard Classification of Occupations (ANZSCO), or the nominated occupation specified in your labour agreement. Qualifications and experience Prior to arriving in Australia, all subclass 457 visa holders nominated under a labour agreement are required to possess skills and experience necessary to perform their respective occupations. In addition to undertaking work where labour shortages exist, skilled overseas workers can make a contribution by transferring skills to less experienced Australian colleagues. The minimum qualifications and experience will be outlined in your labour agreement. Overseas qualifications must be assessed by a registered training organisation or another agreed body. You will only be permitted to nominate overseas workers who meet these skills and experience requirements. Salaries, terms and conditions All overseas employees under a project agreement must be employed under terms and conditions of employment no less favourable than the employer s Australian workforce working in the same position at the same location. Minimum salaries, terms and conditions will be outlined in your labour agreement. You must also meet all relevant awards and industrial arrangements and be consistent Project Agreements Information for employers (May 2015) Page 12 of 24

13 with Australian workplace law. Further information on the temporary skilled migration income threshold can be found at: Your nomination must include documentary evidence of salaries, including proposed base rate of pay and ordinary hours, relevant awards or industrial arrangements (a web-link may be sufficient), and terms and conditions of employment of existing Australian workers in the nominated occupation. Visa grant Following the successful nomination of a position, overseas workers should lodge applications for a subclass 457 visa with the department. The visa application process is identical to the process under the standard subclass 457 programme allowing for a visa validity period consistent with the contract of employment on the project, up to a maximum of four years. Further information can be found under the visa applicants tab at: Registration and licensing Overseas workers nominated under a labour agreement must meet all industry registration and licensing requirements commensurate with Australian standards prior to commencing work. If the occupation requires licensing, you will need to identify how the licensing requirements will be met. Project Agreements Information for employers (May 2015) Page 13 of 24

14 Managing project labour agreements Reporting Obligations You must provide a report in writing on an annual basis on the anniversary of your labour agreement. The report should include an updated project workforce profile (including information about any redundancies during the reporting period) and a statement advising whether there has been any adverse information against your company, including whether your business has been investigated for any non-compliance with Commonwealth or State/Territory laws. You may be given an annual ceiling on the number of workers you can nominate. Where this is the case, you will be requested to provide updated evidence of your domestic recruitment requirement efforts if seeking additional workers (see Attachment A to pro-forma: request for a project labour agreement ). Monitoring and Audits The Minister may audit an employer s performance in relation to its obligations under the labour agreement. You must comply with the Minister s requests and requirements for these audits. Termination and Suspension A decision to terminate or suspend a labour agreement is at the absolute discretion of the Minister. A labour agreement may be suspended or terminated where: an employer breaches sponsorship obligations; or the information provided in the agreement submission is found to be false or incorrect. The Minister may also decide to suspend the operation, reduce the scope of or terminate the labour agreement at any time. This includes a change in government policy. Please Note: that the termination of an overarching project deed of agreement may result in the termination of any associated labour agreements. In the event that a labour agreement is terminated, the visa holders will be subject to the operation of the migration legislation. You will be responsible for the return costs of the worker and their family to their home country if they are unable to find another sponsor. Variations Any request to vary a labour agreement must be in writing to the department. Any variation to the labour agreement will need to be signed by both parties to the agreement. The Minister retains the discretion to vary the number of nominations or occupations. Project Agreements Information for employers (May 2015) Page 14 of 24

15 Confidential information and disclosure Commercially sensitive information provided within a project agreement request will be treated confidentially. The Commonwealth will protect the confidentiality of such information to the extent that it does not contradict the Commonwealth s disclosure obligations. You must allow the release of information provided in the submission where it is required for Commonwealth disclosure obligations. Instances where disclosure of information is required include: the department s annual reporting purposes; to the Parliament and its committees, in line with the Government Guidelines for Official Witnesses before Parliamentary Committees and Related Matters; information consistent with the Freedom of Information Act 1982; discoverable information that is relevant to a case before a court; and as required under other legislation or Commonwealth policy. The parties may request that the confidentiality of the information exchanged between the parties be formalised through a confidentiality deed. You are advised to seek independent legal advice in relation to any confidentiality concerns. Project Agreements Information for employers (May 2015) Page 15 of 24

16 Pro-Forma: Request for Project Labour Agreement To be completed by the employer 1. Employer details Provide details of the project company: Registered name of business and state or territory where registered Any registered trading name/s Australian Business Number (ABN) Australian Company Number (ACN) (if applicable) Australian Registered Body Number (ARBN) (if applicable) Australian Stock Exchange Code (ASX) Code (if applicable) Business Structure (for example, sole trader, partnership, company, trustee, or other) Company Address (Australian head office) Number of years of operation Project Agreements Information for employers (May 2015) Page 16 of 24

17 Subclass 457 approved sponsorship reference number (if applicable). Name and full contact details for a company contact officer Name and phone number of migration agent if applicable (including MARN signed Form 956 must be attached) Industry as defined by the Australian and New Zealand Standard Industrial Classification (ANZSIC) Operational locations of business where workers will be placed Industry association memberships (if any) Name of each company director Name of trust and trustee (if the business entity acting as trust) Project Agreements Information for employers (May 2015) Page 17 of 24

18 2. Numbers and occupations Please provide details of the number of overseas workers required for each requested occupations. Occupation ANZSCO Number Number of workers requested Year 1 Year 2 Year 3 3. Salary information Please confirm the following: The base rate of pay for overseas workers in each requested occupation will meet or exceed TSMIT The terms and conditions of employment of overseas workers in each requested occupation will be no less favourable than the terms and conditions that are provided, or would be provided, to an Australian performing equivalent work on the project. No No Project Agreements Information for employers (May 2015) Page 18 of 24

19 If you answered No to any of the above, please provide details Please provide the web link to the relevant industrial awards for each occupation. Note: Comprehensive information on proposed salary for each occupation must be provided see section 8 Attachments for details. 4. Labour market need Please provide a comprehensive written statement of the labour market need including your attempts to attract and retain domestic workers. Please attach evidence of your domestic recruitment efforts by completing the table at Attachment A. This includes evidence that you have made significant efforts to recruit workers from the Australian labour market within the previous six months including, for each occupation requested, period of advertising or recruitment; number of applications received; number of applicants hired; and reasons why other candidates were not successful; or otherwise compelling evidence of why no suitable workers are available domestically. Project Agreements Information for employers (May 2015) Page 19 of 24

20 5. Project Workforce profile Please outline your current and future workforce profile for the project. Number of Australians (citizens & permanent residents) Number of 457 visa holders Number of other temporary visa workers Total workforce Current project workforce profile (if applicable) End year 1: proposed project workforce profile End year 2: proposed project workforce profile End year 3: proposed project workforce profile 6. Training Where you are not an approved sponsor under the Temporary Work (Skilled) (Subclass 457) visa programme, provide details of the amount spent on gross wages and training of Australians. This may be provided over the last 12 months or last financial year. For details on what may be included in training expenditure, please refer to IMMI 13/030 specification of training benchmarks and training requirements: Period Gross wages ($) Amount spent on training ($) Attach as evidence confirmation from a registered chartered accountant or a certified practising accountant. AND Please indicate whether you will meet training benchmark A or training benchmark B. Project Agreements Information for employers (May 2015) Page 20 of 24

21 Training Benchmark A (Name of Industry training fund/s contributed to) Recent expenditure to the equivalent of at least two per cent (2%) of the gross payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business. Training Benchmark B (Training Expenditure) Recent expenditure to the equivalent of at least one per cent (1%) of the gross payroll of the business, in the provision of training to employees of the business who are Australian citizens or Australian permanent residents. 7. Adverse information Please indicate whether, in the past five years, your business or related (including previous) entities: have been investigated or audited in relation to compliance with migration provisions No have been investigated or audited in relation to compliance with workplace relations laws No have been investigated or audited by the relevant Australian state/territory government authority No have been insolvent No have been investigated or audited in relation to compliance with Commonwealth or state/territory discrimination or taxation laws No have been investigated or audited in relation compliance with Commonwealth or state/territory laws relating to people smuggling and related offences; slavery, sexual servitude or deceptive recruiting; terrorism or trafficking in persons and debt bondage No If you answered Yes to any of the above, please provide details, including any evidence, showing that issues have been addressed. Project Agreements Information for employers (May 2015) Page 21 of 24

22 8. Attachments: Attachment Attached? Attachment number? Domestic recruitment Completed domestic recruitment table for each occupation requested plus supporting evidence Attachment A Financial viability: Letter of support from a registered chartered accountant or a certified practising accountant confirming whether or not the business has financial capacity to employ and meet the sponsorship obligations for the number of positions sought and for the period specified in the labour agreement. Actively operating Letter of support from a registered chartered accountant or a certified practising accountant confirming the business has been actively operating for at least 12 months in Australia Relevant industry associated entities (If applicable, a statement outlining industry association memberships) Relevant industry association information (If applicable, a statement outlining industry association memberships) Trust (If applicable, provide copy of trust deed) Industrial arrangements Copy of relevant enterprise agreement Training Letter of support from a registered chartered Project Agreements Information for employers (May 2015) Page 22 of 24

23 accountant or a certified practising accountant confirming the amount spent on gross wages and training in the last twelve months. Salary (to be provided for each requested occupation): Details of salary arrangements for Australian workers in the same occupation, performing equivalent work at the same location Details of salary arrangements for skilled overseas workers. Please include details of how the salary has been determined e.g. number of hours per week, hourly rate etc The amount and purpose of deductions (if any) to be made from the skilled overseas workers and Australian workers salaries. The amount and purpose of any allowances paid to the skilled overseas worker Any salary packaging arrangements No deductions No allowances No packaging The letter of offer or appointment that will be provided to overseas employees in each proposed occupation. 9. Attestation I declare that the information I have provided in this document is true and correct and I am aware of the penalties for providing misleading or false information to the Commonwealth. Signature: Name and position of authorised person: Date Project Agreements Information for employers (May 2015) Page 23 of 24

24 Attachment A Summary of domestic recruitment efforts by [organisation name]: List each occupations sought under the labour agreement ANZSCO code (order numerically from lowest to highest) List all advertising or recruitment efforts by your organisation in the last six months for the occupation 1 Period of advertising or recruitment Geographical target audience Number of applications received Number of applicants that were hired Reasons that candidates were not successful How many Australians do you currently employ in this occupation? I declare that the information I have provided in this document is true and correct and I am aware of the penalties for providing misleading or false information to the Commonwealth. Signature: Name and position of authorised person: Date 1 One method per table cell (e.g. Seek.com advertising). Please replicate the row if multiple methods have been used. You must attach examples of your efforts to recruit for each occupation. Project Agreements Information for employers (May 2015) Page 24 of 24