Immigration Reforms affecting overseas recruiting

07 December 2018

Australia is a nation of immigrants - our migration program underpins our economic prosperity by using temporary and permanent workers to meet the country’s labour needs.

Nonetheless, immigration continues to be a sensitive and emotive topic, with increasing public commentary that overseas workers entering the country are ‘taking Australian jobs’.

Improving the economic contribution of skilled migrants through legislation

In the age of Brexit and Trumpism, Australia has continued a robust and restrictive legislative reform program. It aims to protect Australian jobs by increasing the quality and economic contribution of skilled migrants, and by only accessing them when the required skills are unavailable in Australian workers.

The new Temporary Skills Shortage (subclass 482) visa  - which replaced the subclass 457 visa program - introduced significant changes by adding criteria dealing with age, employment history, salary, English language proficiency, eligible occupations and mandatory labour market tests.

Balancing immigration and international obligations

Australia is a signatory to the World Trade Organisation General Agreement on Trade in Services 1994, which allows for the movement of people seeking access to the employment market on a temporary basis.

As the world’s 13th-largest economy, Australia has continued to pursue trade liberalisation through free trade agreements that allow for the movement of persons supplying services without the need for labour market testing.

Australia’s revised services offer (2006) removed labour market testing requirements for businesses seeking to recruit skilled workers on permanent visas to meet Australia’s skilled needs. However, following the commencement of the Migration Amendment (Temporary Sponsored Visas) Act on 1 July 2013, certain occupations became subject to labour market testing unless it was inconsistent with Australia’s international legal obligations.

The 18 March 2018 visa reforms make all occupations subject to labour market testing (again, unless doing so would be inconsistent with Australia’s international trade obligations).

On 12 August 2018, as part of the ongoing reforms aimed at only attracting the best talent, the mandatory labour market testing requirements were further tightened.

The position must now be advertised in a specified form. Two advertisements also need to run for a continuous period of 28 days in the four months prior to the lodgement of a subclass 482 nomination application to evidence that there are no suitable Australian workers for the position.

Also on 12 August 2018, the Skilling Australians Fund Levy commenced, which applies to all subclass 482 and 186/187 nomination applications. For organisations with less than $10 million annual turnover, this is calculated as a base amount of $1,200 for each year of the proposed 482 visa nomination.

For nominating organisations with more than $10 million annual turnover, the base amount is $1,800 for each year of the proposed visa - $7,200 for a four year visa period.

The subclass 186/187 levy is $3,000 if the annual turnover of the nominating organisation is less than $10 million and $5,000 if the annual turnover is more than $10 million. The levy must be paid when the application is lodged by the nominating organisation (which cannot recoup the money from the sponsored worker).

It is anticipated that the levy may raise an additional $350 million in this financial year, which will be spent on upskilling Australian workers.

Many view the levy as an additional impost on businesses that cannot meet their skilled workforce needs from within the Australian labour market.

Shift in government policy towards regulatory compliance and enforcement

The establishment of the Department of Home Affairs - with the Australian Border Force as its operational enforcement arm - reflects a new paradigm in managing Australia’s borders as part of Australia’s migration program.

The Department receives over 30,000 visa applications each day worldwide, and in this financial year is budgeted to raise over $3.25 billion in visa fees, fines and levies, showing a clear shift in Government policy focused on regulatory compliance and enforcement.

Recent events, which culminated in the appointment of a new Prime Minister, with Minister Dutton retaining the portfolio as Minister of Home Affairs, and the appointment of Minister Coleman as the Minister for Immigration, Citizenship and Multicultural Affairs, reflect the ever-changing Immigration Law landscape in Australia.

Australia’s focus is on heightened security, a whole of government approach, online processes and systems, analysis of metadata/data, and the sharing of information with national and international agencies and partners. By doing so, it continues to balance a visa framework responsive to Australia’s economic needs with an ongoing focus on operational enforcement, specialised border capability, intelligence, risk, compliance and enforcement.

This poses significant challenges to global mobility and reflects the ongoing immigration debate on how best to achieve stricter border controls while meeting Australia’s skilled workforce and economic needs.