Mike Kelly (Eden-Monaro, Australian Labor Party, Parliamentary Secretary for Defence Support) Share this | Hansard source

I am grateful for the comments of the member for Fadden, who reminded us of how important it is to consult with employers and unions in relation to any measure that affects our economy and the rights of workers. Certainly I think consultation has become a hallmark of the Rudd Labor government.

I am very happy to speak on the Migration Legislation Amendment (Worker Protection) Bill 2008. The bill serves to strengthen the integrity of the subclass 457, temporary skilled migration visa program by creating a new sponsorship framework, with heightened enforcement mechanisms.

The subclass 457 visa was originally established to meet the demand for a small number of highly skilled, professional, temporary migrants. In recent years, due to changes in local labour demands and the ensuing Australian skills crisis, the demand driven subclass 457 visa has experienced dramatic growth in application numbers and subsequent visa grants. With increased numbers of non-citizen entrants into Australia through this scheme comes an increased responsibility for the government to ensure that regulations exist that adequately protect these guest workers.

The Migration Legislation Amendment (Worker Protection) Bill allows for a more holistic approach to the protection of guest workers by instituting measures to allow the Department of Immigration and Citizenship, DIAC, to monitor sponsors of 457 visa holders to ensure they provide a safe workplace, with the same pay and conditions as Australian citizen workers. I am therefore proud to give this bill my full support. As I mentioned in my opening, the subclass 457 visa was not implemented as a stopgap or solution to the skills crisis that has gripped our nation over the past five years. The visa was intended to provide an avenue for Australian business owners and companies to take advantage of the specialised skills of a small number of highly skilled, professional, temporary migrants.

The visa scheme was used, for the most part, by large companies whose intent was to import skilled workers trained in specialised roles, catering specifically to their company’s needs. Being an uncapped, demand driven visa means that as demand for skilled workers grows so too does the demand for 457 visas. In 2003 to 2004, a total of only 39,500 visas were granted. By 2007 to 2008, demand had almost tripled with the granting of 110,570 visas. During this period of growth, the Howard government did little work to ensure that the policies governing the worker protection element of the visa conditions remained suitable. The 457 visa scheme was attracting a higher number of small business sponsors, which presented a new set of risk factors in terms of employment conditions. Workers were often employed in non-professional occupations and were from non-English speaking backgrounds. Such workers are now recognised to be at a much higher risk of exploitation.

These new elements of risk should have prompted a change in the legislation governing the visa to ensure that the conditions of the visa evolved at the same time as demand increased. However, the Howard government continued to aggressively promote the 457 visa scheme as a stopgap for employers attempting to source skilled workers but did nothing to ensure the integrity of the scheme. This bill aims to make the changes that the Howard Government neglected to make and, to this end, in the 2008-09 budget, the government announced it would be allocating $19.6 million to improve the processing and compliance of the temporary skilled migration program.

The 457 visa scheme is different to any other visa administered by the Department of Immigration and Citizenship in that it is the only visa whereby Australian citizens have an ongoing obligation to both the department and, subsequently, to the government and to a noncitizen entrant. The relationship between the Department of Immigration and Citizenship and the Australian citizen or permanent resident employer is often where problems with monitoring and, therefore, maintaining the protection of the worker and the integrity of the visa, occur.

The process for granting a subclass 457 visa happens in three stages with the granting of the actual 457 visa to the applicant being the final stage of the process. The first two stages are the primary responsibility of the Australian citizen or permanent resident employer. First an employer applies for their company to become a sponsor. Secondly, and often assessed concurrently with the sponsorship, the employer identifies a position that needs filling by a skilled worker, known as a nomination. At these stages the employer, now known as the sponsor, agrees to a list of undertakings, including ensuring that a minimum salary level, or MSL, is paid to the worker, that the employer abides by Australian workplace laws and that the employer cooperate with the Department of Immigration and Citizenship regarding any monitoring activity.

Monitoring units within the Department of Immigration and Citizenship were established concurrently with the establishment of the visa to ensure the integrity of the scheme; however, very little legislative support existed to allow such units to follow through with sanctioning actions where breaches were identified. Imposing sanctions on visa holders where visa breaches were identified had the support of relevant visa compliance legislation. Sanctioning sponsors where breaches of the undertakings occurred was nevertheless quite difficult.

In 2007 significant breaches involving criminal negligence, police investigation and prosecution attracted media attention. Where smaller breaches occurred, one of the few options available was the cancelling of an employer’s sponsorship. This, however, negatively impacted on the visa holder, who would need to find a new employer within 28 days or leave the country. Whilst the employer was inconvenienced, the main punishment fell on the visa holder, thereby providing no protection to the visa holder, and undermining the integrity of the scheme.

The Howard government’s reckless treatment of workers, it seems, affected not only Australian workers but also those who we invited to our country to assist with our skills crisis, to boost our economy. When questioned by Senator Evans in 2006 about the integrity of the scheme, after a raft of negative media coverage and horror stories were brought to public attention, Senator Vanstone, then Minister for Immigration and Multicultural Affairs, denied that there were problems with the system, and even went so far as to defend the fact that her department did not have the power to properly monitor visa holders and sponsors. Instead of moving to improve the system, Senator Vanstone ordered that the department no longer release information about the program to the public. In 2007 the then Minister for Immigration, Kevin Andrews, made some changes to the program, including tightening the English language requirements and restricting access to industries with the most problems with compliance. However a major overhaul of the monitoring process was needed. This bill proposes to fix these ongoing problems that were ignored by the Howard government, and thereby to improve the integrity of the program.

Most of the changes made to the monitoring and sanctioning powers in 2007 were quite heavy handed and served to undermine the integrity of the subclass 457 visa program by increasing red tape, making a scheme which aimed to allow employers to obtain skilled workers quickly and easily one which was encumbered by bureaucracy, often having the effect of penalizing employers who had been doing the right thing by elevating key sponsorship obligations.

This bill expands the powers to monitor and creates punitive powers for noncompliance, thereby providing increased protections for visa holders and strengthening the integrity of the program. The bill will achieve this without placing increased pressure on sponsors who are doing the right thing by their workers. This bill strikes the necessary balance between stringent sanctions where breaches are identified and flexibility within the sponsorship framework, which is necessary for efficient and effective program operation. Ensuring the flexibility of the 457 program is essential in the current employment market climate. Notwithstanding the global financial crisis Australian industry is still facing skills shortages, which will be accentuated when economic activity picks up again. The dual pressures of an ageing work force and a reduction in the number of apprentices in training have led to a strain on companies and businesses that rely on skilled workers.

Country and regional towns, such as those in my electorate, are particularly feeling the pinch of the skills shortage. One industry in my electorate that is feeling the sting of low skilled employee availability most acutely, and subsequently relies on the 457 temporary skilled worker programs, is the Australian snow sport industry. The Australian snow sport industry, concentrated in the Snowy Mountains in my electorate, experiences an annual struggle to employ appropriately skilled workers for the Australian ski season. The Australian snow sports industry is in the middle of a severe labour shortage. The short duration of the season, approximately fifteen to sixteen weeks from June to October, variable winter weather conditions and competition with other tourism and leisure sectors for skilled employees, makes finding appropriately skilled employees exceptionally difficult.

The industry, like a lot of industries in Australia in the present climate, is stuck in a perpetual catch 22 situation. Skilled staff are not available in the local Australian market, and local staff cannot be trained in the required numbers without employing suitably qualified and experienced temporary migrants. Although resorts have increased focused advertising—particularly in youth sectors—for positions during the ski season, in the past three years there has been a steady decline in domestic applicants for all positions. In Thredbo alone, applications have declined from 1,123 in 2004 to almost half that—582—in 2007.

Another pressure comes with the impractical conditions set by the seasonal nature of the work in these resorts. Retention of skilled staff is almost impossible, as the staff need to find work after the seventeen weeks of employment offered by most resorts. The seasonal factor also leads to significant numbers of new, inexperienced staff being hired each year. This comes at a very high cost to the industry, as the new staff must be trained at the beginning of each season. Attracting appropriately skilled workers for such a short period becomes difficult when competing with employers who offer full-time work in the cities. The positions required are not limited to ski patrolling and instruction but also include hospitality staff, IT professionals, business managers, public relations managers, and health services. It is almost impossible for the snow sport industry to compete with other employers requiring these skills when conditions, including the remote location of the snowfields and the short duration of employment offered, are taken into consideration.

This is of great concern because this industry is of particular economic importance to the Snowy Mountains region. A study prepared for the Alpine Resorts Co-ordinating Council in 2006 showed that 57 per cent of gross regional product for the Snowy River shire was generated by snow sport resorts, with 3,264 total annual equivalent employment opportunities generated. A total of 7.7 per cent of gross regional product was generated by Selwyn Snowfields in the Tumut shire, and 557 total annual equivalent employment opportunities were generated. It is therefore vitally important that the industry be assisted by the government. As a consequence of its labour problems, the snow sports industry relies heavily on employing temporary migrant workers for the season, with 5.9 per cent of NSW alpine resort employees being from a country of origin other than Australia. The resorts utilise workers with both working holiday and 457 visas: two per cent are currently employed on 457 visas, the rest being working holiday visa holders.

The Perisher Blue ski resort in the Snowy Mountains relies on labour agreements, developed in negotiation with the Department of Employment and Workplace Relations and the Department of Immigration and Citizenship, to sponsor skilled workers for the snow season. The labour agreements are formal arrangements to recruit a number of overseas skilled workers, mostly used in conjunction with the subclass 457 visa. Whenever their labour agreements come up for renewal, the resort has, to date, faced ongoing struggles with the issue of restrictions on the categories of employees that can be sponsored—restrictions that are placed on the 457 program. Other problems have been that the levels of minimum payment are required to be above the award rates paid to local staff for the same categories of work, and the minimum number of hours is well above those supplied to local staff. Although these abnormalities have presented ongoing difficulties for the resort, it must continue to use the 457 program in order to be able to source appropriately skilled and experienced labour. In a submission sent to the relevant ministers, and copied to my office in late 2007, the resort identified a number of positions it would seek to source from outside Australia, including groomer mechanics, chefs, lift operators, snow groomers, snow sports instructors, ski patrollers and ski technicians. Subsequently, a labour agreement was developed for the resort for the 2008-09 snow season.

As part of the series of long overdue reforms of the 457 program, in February 2008 Minister Evans made changes to the labour agreement process. Employers are now required to consult with relevant industry stakeholders about the proposed agreement, and this has led to a more transparent, coordinated and streamlined process for the approval of labour agreements. These changes provide protections for the industry, the employer and the sponsored workers, without compromising on efficiencies for the employer. Such changes allow for flexibility in the development of labour agreements, which assists employers such as the snow sports industry—whose unusual employment conditions prompt the need for a flexible and tailored agreement—to employ 457 visa holders. Changes such as those made to the labour agreement process, and the changes proposed by this bill, are responsive to industry whilst ensuring that 457 visa holders are protected.

These reforms all go towards regaining public confidence in the scheme and reclaiming the integrity of the subclass 457 visa program. If the program is to be used to help tackle the Australian skills crisis, both the Australian public and international observers need to have confidence in the scheme. In the current global climate there is still competition for skilled workers. Where skilled employment positions far outnumber skilled workers, these workers have the option of being very selective in the international market for the most attractive positions and visa conditions.

As such, it is increasingly important that the subclass 457 visa program is viewed as an option that allows us to be internationally competitive for skilled workers. Once the visa holders are in the country, it is imperative that these workers have the same terms and conditions of employment as Australian employees in the workplace. The Australian government, through the Department of Immigration and Citizenship, has the same obligation to international workers that it has to domestic workers to ensure workplaces are safe, conditions are acceptable and the workers are aware of their rights.

Two significant factors separate workers coming into Australia on the 457 visa from most citizen or permanent resident workers. Firstly, entrants are often either non-English speakers or from a non-English-speaking background. Secondly, the majority of workers who enter Australia on these visas are intent on moving through the entire migration process, from a temporary visa to permanent residency to Australian citizenship. It is these two factors which lead to some 457 visa holders being at risk of exploitation. Language barriers have been addressed in part by the English language requirement. However, entrants who are on visas granted prior to this requirement being introduced remain at risk.

The risk of workplace accidents occurring due to a failure to comprehend instructions or signage is high, as is the risk of being exploited by an employer who will not provide contracts or a record of workers’ rights in the employee’s language. Exploitation of workers is a serious issue that needs to be monitored by the department. Sponsored workers, who are relying on their employer to support their application for permanent residency or even to maintain their sponsorship so that they may remain onshore, are particularly vulnerable. A sponsored worker may be forced to work under conditions contrary to their contract or visa conditions for fear of their sponsorship being cancelled by their employer. There exists the small minority of employers, and subsequently sponsors, who would take advantage of such vulnerability to further their aims.

This bill provides the Department of Immigration and Citizenship with powers to prevent such exploitation. These include investigative powers to request information from employers and access to employees for interviews and to workplaces for site visits to check on workplace conditions. Changes to the information-sharing provisions will allow the department to ensure that employees are well informed of their rights and the department is aware of their conditions. Transparency amongst the three parties—the department, the employer and the sponsored worker—will go a long way towards ensuring the integrity of the program.

Current provisions, including administrative penalties, have done little to deter exploitation. This bill introduces new civil penalties for sponsors who are not complying with sponsorship obligations, provisions which were not available under the current system of 457 sponsor monitoring. This legislation is an important step towards maintaining the integrity of the subclass 457 visa program. The government has an obligation to sponsored workers, as it has to Australian citizens and permanent resident workers, to ensure that work conditions are adequate and that exploitation does not occur. This bill ensures the integrity of the program without compromising on efficiency and effectiveness for sponsors wishing to employ overseas skilled workers. I commend the bill to the House.

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