Russell Trood (Queensland, Liberal Party) Share this | Link to this | Hansard source

I want to make some remarks in relation to the Migration Legislation Amendment (Worker Protection) Bill 2008. This bill seeks to strengthen the legislative framework relating to sponsorship of noncitizens coming to work in Australia under what are commonly called 457 visas. It is important legislation, given its focus. It is important because 457 visas have proliferated since they were first introduced in 1997-98. In the first year that they were introduced, 30,880 visas were issued, and in 2007-08 the figure rose to 110,570 visas. So there has been a fourfold increase in the use of these visas over the period of time in which they have been available.

In Queensland, my own state, they have consistently constituted about 17 per cent to 18 per cent of the visas issued nationally—8,000 in 2006-07 and 9,800 in 2007-08. There are currently 19,000 employers making use of 457 visas and they are spread very widely throughout the economy, largely in the professions and also in the trades. The largest categories in my own state, I note, are in the health and medical professions—nurses and particularly medical practitioners. So the health professions in particular, in Queensland at least, have taken full advantage of the opportunities presented by the 457 visas. With numbers so large, it is clear that there is a need to strengthen the legislative framework under which they operate.

The opposition supports this objective and, indeed, it supports the general thrust of the bill. We do have some concerns, however, and, in voicing these concerns, I suppose it is important that I draw attention to the fact that there has been some argument that the 457 visa process has been abused. It has been argued that there has been some bad behaviour in relation to these bills. Before the Senate committee, an argument was put by the representatives from the CFMEU that there were several instances of abuse that could be noted, although the evidence seemed to be a bit vague as to the nature of these abuses. The statistic that arrests my attention is that, over the period of 1997-98 to now, something in the vicinity of 340,000 visas have actually been issued, and there seems to be a relatively small number of abuses that have been recorded. This is not in any way an avalanche of abuses. There has not been rampant contempt for the rules under which the visas have been issued. So I think we should be cautious about accepting the claims that are being made in the public domain, particularly on behalf of the union movement, that this system is in need of substantial change. But there is a need for greater regulation, and the opposition supports that proposition.

The particular concern that I have about it is the kind of legislative technique—if I can describe it in that way—which is being used in relation to the way in which this bill has been introduced. Several witnesses before the Senate committee drew attention to the fact that, whilst the bill laid out a framework of activity, it provided little detail as to the nature of the obligations which employers, and indeed employees, might be obliged to undertake in the future, and these details were going to be provided in the regulations. Mr Kessels from Fragomen, who gave evidence before the committee, said:

What we are all doing is sitting around making submissions and discussing a bill which is essentially just a framework, but the real substance that is going to make the real difference is unknown at this stage, and that is the fundamental problem.

I agree with that proposition. I do think it is a fundamental problem. Mr Kessels’ evidence was by no means the only evidence following that particular line. In fact, there were many witnesses who came to the committee who expressed precisely the same kind of concern about the structure of this piece of legislation.

The difficulty here is that we have no clear idea of the nature of the regulations which might be provided. To say the least, in my view, this is an undesirable way of proceeding. I suppose that there is a possibility that when the coalition was in government we may have, on a few occasions, taken this particular course of action. There may have been occasions when we took this course of action, but I do not necessarily approve of that course of action either. So I do not think that the government can take any comfort from the fact that this may have been a way of proceeding in the past. If this were a trivial matter then we might let it pass through, but we are actually talking about the rights of people and we are talking about issues which are fundamentally important to the way in which we manage businesses and the way it affects our economy. These rules and regulations, when they eventually emerge, could in fact have quite a profound impact on both employers and employees. But we do not have, as Mr Kessels said, any real clear idea about how onerous they may well be when they are turned out.

The Senate committee noted that there were a range of concerns. I will not deal with these in detail other than to note that the committee drew attention to the problem of penalties and the enforcement regime that might apply in the regulations. It drew attention to the sanctions that might apply for breaches and, in particular, to concerns about the inspection regime. It also drew attention to what I think are two rather more significant issues. The first of these is the onerous obligations that could well be imposed upon employers as a result of the new regulations. Under these new regulations, it seems that employers will be required to undertake responsibility for costs such as for the education of children, travel and airfares, medical care, and licences and registrations for professions and trades et cetera. All of these have a capacity to impose considerable additional burdens on businesses. For some sponsors, some organisations, some enterprises which already make considerable use of 457 visas, these could be very onerous obligations indeed, particularly for small businesses. We ought to be careful about the consequences of these regulations and the kinds of imposts that we are going to be placing on businesses, particularly small businesses, especially in the economic climate we now find ourselves in.

The second major concern I have is in relation to retrospectivity. We in the coalition have never been enthusiasts for retrospectivity in legislation. It is not entirely clear how retrospectivity might apply in this particular bill, but it seems likely under the framework and the structure that exists that, when the regulations are promulgated, the new obligations will apply to existing 457 arrangements. Employers who have entered into an arrangement with a new employee under a 457 visa might suddenly find themselves hit with very large additional responsibilities which could affect the costs and bottom line of their enterprise. We ought to be very careful about imposing these kinds of imposts on small businesses. I am encouraged by the fact that it seems that the government intends that there be widespread consultation in relation to the new regulations. That is indeed encouraging. Of course, we will look to see that that actually takes place and wait to see that that undertaking is discharged.

In concluding, I just want to make a broad point. There is a great deal in this legislation that is taking place under the regulations and a great deal of which we, at this stage, are unaware. We can speculate and we can guess, but until such time as we see it written down we have absolutely no confidence that this will not in fact impose new and deeply onerous obligations on employers. Whether it is as a result of incompetence, inadvertence or design, we find ourselves in a situation where this kind of legislative technique has been applied in an area which is of very great importance to the economy. I trust that it is not the intention of this government to proceed in this way in relation to much legislation in the future. It seems to me to be a highly undesirable way to deal with matters of considerable importance to employers, to people with small businesses in particular, and to those who might come to Australia on short-term arrangements. We will look forward to the regulations when they appear. We will be giving them close scrutiny, and we hope that there will not be any great surprises in those regulations.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

I seek leave to incorporate remarks for and on behalf of Senators Cameron, Xenophon, Hanson-Young, Bilyk, Pratt, McEwen, Marshall, Wortley and Polley.

Leave granted.

Doug Cameron (NSW, Australian Labor Party) Share this | Link to this | Hansard source

The incorporated speech read as follows—

I am pleased to support the Migration Legislation Amendment (worker protection) Bill 2008 This legislation is designed to introduce a new framework for the sponsorship of non citizens seeking entry to Australia.

The legislation is a timely and necessary response to the problems associated with the operation of the 457 visa program.

The government is determined to strengthen the integrity of the program and to ensure that workers who come to Australia to assist this nation build for the future are treated with fairness, dignity, and equity. This will be achieved through four main measures:

• Providing the structure for better defined sponsorship obligations on employers and other sponsors;
• Improving information sharing across all levels of government;
• Expanded powers to monitor and investigated possible non-compliance by sponsors; and
• The introduction of meaningful penalties for sponsors found in breach of their obligations.

The use of temporary visas, particularly 457 visas, has increased dramatically over the last few years.

This increase is a direct result of the Howard government’s failure to develop a strategic approach to building the skill base of Australia.

Widespread skill shortages have been an impediment to the improved productive performance of this nation and are a clear example of the failed economic policies of the previous government.

The government is determined to build a sophisticated national skill development programme and reduce reliance on temporary overseas labour to build the nation.

This is why we are investing $19.3 billion in education and training.

This $19.3 billion commitment is an investment in Australia’s future.

We will invest $1.9 billion over five years to fund up to 650,000 new training places.

These training places will be the engine that drives personal skill development and lifelong career progression.

While the government’s policy will increase the skill base of our country, significant progress on reducing skill shortages will take time.

This means Australian industry will continue to seek access to the 457 Visa systems.

Given the global economic crisis and the inevitability of Australia being caught up in the worldwide economic downturn there is a high probability that the future use of 457 visas will decline.

Nevertheless, the need to treat all workers in a fair, dignified and acceptable manner is fundamental to the governments approach in this legislation.

Contributions in this debate from the opposition point to a minority of companies being engaged in unacceptable conduct towards 457 Visa holders.

It seemed to me that the plight of migrant workers was being reduced to a statistical analysis.

This is unacceptable to the government.

It is illuminating when you analyse the statistics used by the opposition to defend the 457 visa system.

Senator Fierravanti-Wells argues that only 1.67% of sponsors were found to have breached their sponsorship obligations.

Given that Senator Fierravanti-Wells also points to the fact that nearly 19,000 employers use 457 visas then approximately 317 employers are breaching their obligations.

In my view, this understates the problem as many workers are fearful of reporting breaches due to intimidation from employers.

317 could be the tip of the iceberg.

Even on the opposition `s own figures thousands of workers are being exploited.

If one migrant worker is exploited then that is one worker too many.

If one migrant worker is killed or injured as a result of employer exploitation then that is one worker too many.

If one migrant worker is denied equal pay for work of equal value then that is one worker too many.

If one migrant worker is intimidated then that is one worker too many.

If one migrant worker believes Australia is a bad place to work then that is one worker too many.

I note the opposition claim that the union campaign of opposition to 457 visas had been over sensationalised by the media.

Far be it from me to defend the media however it is fare and reasonable and in the national interest to report the death, injury, exploitation, and intimidation of any worker including migrant workers.

I have had personal experience attempting to assist 457 visa workers who have been outrageously exploited.

The problems with the system have also been documented by the Victorian Magistrates Court, the Victorian Workplace Rights Advocate, and the Australian Human Rights Commission.

The Visa Subclass 457 Integrity Review conducted by the industrial relations expert Barbara Deegan also raised major issues with the programme.

The Australian human rights commission documented numerous examples of the exploitation of workers on subclass 457 visas. Issues raised by people making complaints include:

• Not being paid overtime
• Working longer hours or days than non-Visa employees
• Limited access to sick leave and dismissal if the Visa holder takes sick leave
• Dismissal because the Visa holder was pregnant
• Dismissal for taking leave to care for a sick spouse or child
• Overcharges on rent or other expenses organised by the employer
• Sexual harassment

Despite the predictable opposition by the Australian Chamber of Commerce and Industry to the changes in this legislation, other employer groups such as the Motor Traders Association of Australia noted their “in principle support to strengthen the integrity of the subclass 457 Visa procedures, while ensuring smooth access by employers” they go on to support “the principles of fairness that underpin the subclass 457 Visa regime”

The Queensland government stated that “the support of the Queensland government for the 457 Visa programme is contingent upon a clear understanding that it does not undermine Australian employment opportunities, wages or working conditions”

The Minerals Council of Australia “strongly support the need for the system to be operated with integrity so that all parties have confidence that Australia remains internationally competitive in facilitating Labour movement whilst at the same time safeguarding employment and training opportunities for Australian workers and protecting overseas workers from exploitation”

The New South Wales government “supports the Australian government’s efforts to reform the employer sponsored temporary migration program. These reforms should ensure the program is flexible and responsive to the needs of Australian employers, while respecting the rights and dignity of employer- sponsored migrants and ensuring transparency, accountability and integrity in the administration of the program”

The Deegan report has formulated a range of recommendations (67 in all) that go to the problems with the 457 visa system and proposed resolution to the problems.

The government has referred the report to the Skilled Migration Consultative Panel which comprises representatives from business and industry groups, state government and unions.

The panel will provide feedback and advise the government on the report, which includes recommendations to:

• Abolish the minimum salary level in favour of market rates of pay for all temporary visa holders on salaries less than $100,000
• Develop and accreditation system risk matrix to ensure rapid processing of low risk visa applications so employers can meet skills needs quickly
• Develop new lists, setting out the skilled occupations for which temporary work visas can be granted
• Limit Visa holders to stay no longer than eight years in Australia (i.e. two four-year visas or four two-year visas) while providing a pathway to permanent residency for those who have the required language skills.

The Minister for immigration and citizenship, Senator Chris Evans has said that the recommendations and the views of the consultant of panel will inform the development of the government’s reforms to the temporary skilled migration program as part of the 2009 budget.

In the meantime this amendment will:

• Lead to effective and efficient identification of non compliance through expanded investigative powers.
• Discourage inappropriate use of the temporary skilled visas program;
• Provide an effective price signal to encourage the hiring and training of Australian citizens and permanent residents and, most importantly;
• Protect overseas workers from exploitation;

The legislation strikes an appropriate balance between:

• facilitating the entry of overseas workers to meet genuine skill shortages;
• Preserving the integrity of the Australian labour market, and:
• Protecting overseas workers from exploitation.

I commend the bill to the chamber

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

The incorporated speech read as follows—

You will be aware that in my short time in this place, I have shown steady interest in matters relating to migration law.

I would like to take this opportunity to thank the Minister and his office for their efforts to provide regular and detailed briefings over the past three weeks, particularly in relation to the Governments’ plans to review timelines for judicial review of migration decisions.

I wish to acknowledge the Minister’s offer to take a personal interest in the case I have raised previously in relation to a young Afghani refugee who had a number of family members killed by the Taliban, as well as other cases that are brought to his attention which demonstrate unique and exceptional cases.

I would also like to again commend the Circle of Friends for their advocacy in relation to such cases.

I appreciate his position in relation to Ministerial Intervention and look forward to future discussions which will hopefully produce a fairer appeals and approval system, which will make such intervention less necessary.

I am certain that we will not see eye to eye on every matter in this complex and contentious area of policy, but I respect the Ministers’ efforts and thank him.

That said, I support the broad intention of this bill and indicate that I will be supporting its second reading.

I commend this bill with its intent that it will better protect foreign workers from improper practices by Australian migration sponsors.

I note that the bill aims to make changes to sub class 457 temporary residence visas to provide greater flexibility in Ministerial approval of group sponsorships, improved information about sponsor responsibilities, increased powers to explore non-compliant sponsors and harsher penalties.

I will not take up more time of the Senate going through the specific mechanisms by which this will be achieved. However, I have a number of points on which I would like clarification from the Minister in the committee stage.

Firstly, this bill sets up a framework in which regulations will be developed to enable the bills broader goals. Could the Minister please provide information on the nature and detail of these regulations as they currently stand?

Secondly, I note that red tape, requirements for quantifiable training programs and external training providers can make sponsorship onerous for smaller and niche businesses. In what ways will these changes, if any, will these changes make it easier for these businesses to become approved sponsors?

Finally, I note that medical examinations and English testing can produce significant delays in departmental processing of individual applicants and suggest that these new provisions are to reduce some of these delays. Is this an accurate interpretation? And if so, what measures does the Minister plan to reduce these delays for all 457 visa applicants?

With these things in mind, I support the second reading of this bill and look forward to the Minister’s response in the committee stage.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

The incorporated speech read as follows—

I rise today to speak on the Migration Legislation Amendment (Worker Protection) Bill 2008.

The bill is a welcome move in proving a more robust framework for temporary working visa arrangements, particularly for workers on 457 visas.

457 visas have been a very contentious part of Australia’s broader immigration system. The Australian Greens have always had serious concerns about the scheme while recognising the policy intent behind it.

It is a scheme that needs to balance a genuine need for skilled workers in certain industries and occupations with protection for those workers. There is also a need to ensure the scheme does not provide a disincentive for the provision of training opportunities for workers in Australia.

This is a difficult balancing act. In the past we believe the balance was not met. We along with many others were concerned that 457 visas were becoming the first option for employers, often resulting in workers being exploited.

Bill provisions

The bill before us today is a start in beginning to address some of the problems of 457 visas.

The bill addresses four key areas:

• Expanded powers to monitor and investigate employer non-compliance with the 457 visa scheme;
• A framework for punitive penalties for employers found to be in breach of their obligations
• Improved information sharing between government agencies to improve compliance; and
• A redefined sponsorship obligations framework for employers of 457 visa workers and a range of other temporary work visas

The improved compliance regime, inspectorate powers and information sharing provisions are welcome. It is always the case that the integrity of a scheme such as this depends as much on compliance than on the standards to be complied with.

We support the provision setting out the investigative powers to monitor workplaces and conduct site visits to determine whether employers are complying with the redefined sponsorship obligations and making those powers similar to the powers of workplace, inspectors under the Workplace Relations Act 1996.

We expect sufficient resources will be provided by the Department to ensure that the compliance framework is effective and those sponsors that do try and exploit workers will be discovered and investigated.

We further support the instigation of a civil penalty regime with fines of up to $33 000 as well as the ability to cancel an employer’s approval as a sponsor or bar them from making applications for approval as a sponsor for a period of time. We believe a civil penalty regime is entirely appropriate for the breaching of sponsorship obligations.

Some concern has been raised from the business community about the transitional provisions of the bill extending these measures to existing 457 visa sponsors. The Greens support the transitional provisions and the application of the new compliance regime, powers of inspectors and information sharing laws applying to current sponsors. We also support any new sponsorship obligations made by regulation to apply to current visa sponsors and workers.

Lack of regulations

The main concern we have with this bill is that it provides for sponsorship obligations to be made by regulations but we have not yet had a chance to consider what the Government believes those obligations should be.

It would have been preferable to debate this bill in the context of draft regulations.

I ask the Minister to guarantee that he will release an exposure draft of the regulations, particularly those establishing the sponsorship obligations, before they are finalised.

While the regulations will be disallowable, a disallowance is a blunt instrument for dealing with details and these regulations will be full of details. An exposure draft on the regulations will allow a debate on the details.

I would also like to take this opportunity to draw the Senate’s attention to the United Nations Convention on the Protection of All Migrant Workers and their Families. It is not a Convention Australia has signed but it does lay down the basic rights of migrant workers. Particularly with respect to workers rights issues, we would expect the Government to take the Convention into consideration.

The convention holds that migrant workers should be afforded basic human rights such as not being held in slavery or servitude or be required to perform forced or compulsory labour; that migrant workers have freedom of expression and freedom of religion; that migrant workers shall to be subject to arbitrary or unlawful interference with their privacy or be arbitrarily deprived of property - all pretty non-controversial I would think.

Equally with respect to employment it should be non-controversial to apply these Convention standards - that migrant workers shall be treated equally in respect of remuneration, and other condition of work such as overtime, hours of work, rest breaks, holidays with pay, health and safety and termination of the employment relationship.

The Convention also states that migrant workers have the right to medical care and that the children of migrant workers have the right to access education.

We urge the Government to take into account the Convention and consider a “rights based” approach to protecting temporary workers.

Pacific Islander Seasonal Worker scheme

A rights based approach is particularly important if the seasonal worker program will be covered by this bill in the future.

We are unclear at this stage whether it is the Government’s intention for the seasonal worker program to be governed by this legislation. The framework certainly suggests that it should be, with regulations being able to establish different obligations for different visas, and with the enforcement and compliance regime.

The Greens are not opposed to the trail of a seasonal worker scheme but we are concerned to ensure that the exploitation of 457 workers that has occurred is not repeated again.

Issues with 457 visas

Turning now to some of the issues that have been raised about the 457 visa program:

We agree with the Australian Manufacturing Workers Union when in welcoming more robust regime of obligations, reporting, regulation and enforcement, it also indicated:

“it remains our position that the fundamental issues that must be addressed relate to the reintroduction of labour market testing, mandatory payment of market rates and employment of 457 workers on collective agreements.

We believe that these reforms would remove the motive and capacity of employers to use 457 workers in circumstances other than those where a legitimate skills shortage exists. They would also mediate the inherent vulnerability of 457 workers attributed to the direct link between the employment relationship with a single employer and the right to stay in Australia to work. Failure to address these questions will leave in place the source of the current problems.”

The submissions to the Deegan Review and the Discussion Paper provide a useful summary of the problems encountered by many 457 visa workers and point to issues that the Government needs to address.

Wages and costs

The issue of wages for 457 workers is important for a couple of key reasons. Appropriate wages ensure that migrant workers are not exploited but they also mean that the temporary worker scheme is not used to undermine wages for other workers.

We welcome the increase in the Minimum Salary Level made recently but we question whether the MSL formula is the most appropriate way of dealing with wages. We would like to see a requirement for salaries to be at market rates. The 457 scheme must be about bringing in needed skilled workers, not cheap labour.

The Greens are also inclined to support requirements for sponsors to pay travel costs, costs associated with recruitment migration agent services and registration or licensing fees. We also believe there is a strong case for sponsors to pay for income protection and medical expenses or health insurance for visa holders.

Exploitation

It is not just through low wages that temporary migrant workers can be exploited. There is no question that there have been and are 457 visa workers who have exploited. The trade unions have played an important role in exposing these situations such as appalling accommodation, unjustified deductions from pay, workers doing work they are trained for.

Most significantly we recognise that many 457 workers, especially those working in the semi-skilled jobs, are vulnerable to threats of deportation.

As John Sutton from the CFMEU said at the Senate Inquiry hearing into the bill:

“Wherever there are manual workers coming from a developing country, a poor country, and they are under a sponsorship arrangement where they have the knowledge that, if the sponsorship is terminated, the department will ask them to leave the country in 28 days, there are some pretty powerful forces at work that not in all instances but in many instances lead to pretty serious exploitation.”

Skills/training opportunities

A final important matter I wish to touch on is skills and training. The 457 visa program is specifically designed to allow temporary workers with skills not readily available to employers. The program needs to be carefully directed to areas with genuine skills shortages and to ensure that 457 visas do not become a substitute for local skills development.

While we recognise that no matter how fast we can train people up, some industries will continue to need temporary workers. The engineering profession for example demonstrated the shortage could not readily be made up though local training —we just aren’t graduating enough engineers.

But the government needs to make sure that employers are also investing in the local workforce for long term sustainability. We support obligations on employers to demonstrate a commitment to education and training for the long term.

Similarly, the Greens support a requirement not to use 457 workers as strike breakers. This goes against the intention of the program and could undermine the local workforce exercising their democratic rights.

These are some of the matters we expect the regulations setting out the sponsorship obligations to address.

Conclusion

On a number of the issues I have raised today I wish to seek some clarification from the Minister.

The Greens believe the 457 visa program cannot be an easy or cheap alternative for employers. We support the measures in this bill to improve the integrity of the scheme and in particular the compliance framework.

We would have preferred to have debated this bill having had an opportunity to consider draft regulations. The obligations on sponsors that the regulations will contain are pivotal to the future integrity of the scheme.

The Greens will be considering the regulations carefully and as I mentioned before expect the Minister to provide an exposure draft and open them up to appropriate debate and scrutiny.

Despite the lack of regulations the Greens are prepared to support this bill now given the other elements of the bill relating to a stronger compliance framework will apply to current sponsors of 457 workers.

Catryna Bilyk (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

The incorporated speech read as follows—

I rise to speak on the Migration Legislation Amendment (Worker Protection) Bill 2008.

This bill was introduced to the Senate by Senator Evans, the Minister for Immigration and Citizenship to provide for better protection of migrant workers in Australia.

The amendments before the Senate today arose out of a review of the 457 visa program which the Rudd Government announced earlier this year.

The subclass 457 or Temporary Business Entry visa was introduced by the Howard Government in August 1996 to provide temporary relief for businesses suffering from skills shortages.

Under the 457 visa, an employer can sponsor an overseas worker to work in Australia on a temporary basis.

The 457 visa was intended as a stop-gap measure —not a substitute —for the shortage of skills in Australian industries.

However, the explosion of 457 visa applicants in recent years is symptomatic of the failure of the Howard Government to address Australia’s skills crisis.

In the first year of the visa program’s operation, 1997-98, there were just over 30,000 visas granted.

These figures include eligible secondary applicants – or family members living in Australia with the primary applicant for the period of their stay.

The number of visas granted has steadily increased over time, but appears to have increased dramatically in the past three or four years.

By 2005-06 the number of 457 visas granted had reached just over 70,000, up from 48,000 the previous year.

In the year to June 2008 (the year just gone) a massive 110,000, of what are now known as Temporary Skilled Migration Visas, were issued.

The rapid growth in 457 visas is symptomatic of the Howard Government’s failure over its twelve long years in office to plan for the skills needs of Australia.

While they were raking in masses of revenue off the back of the resources boom, they had plenty of opportunity to invest in the skills and qualifications of Australians.

Instead they allowed Australia’s skills crisis to continue unchecked.

The Rudd Government, on the other hand, is serious about addressing the skills crisis.

One of the roles of government is to forecast the skills needs of the country and to take steps to skill our workforce so that Australia’s skills needs can be met first and foremost by Australian workers.

The Rudd Government will give priority to training and skilling Australian workers so that our own workforce can meet the skills needs of industry.

We will work to ensure that Australia’s workforce has the capabilities necessary to fill as many Australian jobs as possible.

This is why we announced in the May Budget that we would make a $19.3 billion investment in education and training to provide employment opportunities for Australians.

We have committed to this investment for the future because we recognise that skills are a vital element in a productive economy.

Having said that, we recognise that developing qualifications takes time and so, therefore, will not meet the immediate skills needs of industry.

Consequently - we support the 457 visa program as a temporary measure to meet short term skills shortages.

But a program for temporary overseas workers should not end up becoming a long term response to Australia’s failure to plan for its own skills needs as it was under the previous government.

The other unfortunate side effect of the 457 visa program has been the mistreatment and exploitation of workers.

While the vast majority of employers do the right thing, the Rudd Government share concerns, with others, about the incidence of employer breaches in the subclass 457 visa program.

There were 1353 employers formally warned and 192 sponsors formally sanctioned in 2007-2008.

Comparatively in 2006-2007 there were only 95 sanctions and 313 formal warnings - so you can see that this government is acting to protect these workers.

Australia cannot take pride in its 457 visa program until we take serious steps to combat the human misery visited on overseas workers by some unscrupulous employers.

I quote Senator Evans who recently stated:

“The temporary working visa scheme is only sustainable if the community is confident that overseas workers are not being exploited or used to undermine local wages and conditions”.

This is what the bill before the Senate today seeks to address.

On 28 August 2007 the Sydney Morning Herald reported three deaths of workers sponsored on 457 visas.

In two of the three cases, the workers were undertaking menial labouring work instead of the skilled work they were brought over for.

They had also complained to their families that their working conditions had been a lot tougher than they were told to expect before they came to Australia.

In the third case, the worker was killed by a tree while operating a chainsaw—a job for which he had no previous experience.

All three left behind families including wives and children.

Clearly employers are breaching their obligations under the temporary skilled migration program if they expect overseas workers to engage in work that do not employ the skills they were apparently brought over for.

However, it is one thing to have reasonable obligations for sponsors of 457 visas, it is another entirely to have the monitoring and oversight to effectively enforce those obligations.

The workers referred to by the Herald’s article may have survived had they felt confident to complain about the conditions they were employed under.

These cases reveal an unfortunate feature of the 457 visa program which is the vulnerability of workers to exploitation.

This vulnerability has been exposed in various court cases.

For example fifteen 457 visa holders employed by Hanssen Pty Ltd signed unapproved Australian Workplace Agreements for which their employer failed to provide information statements.

The workers did not speak up for fear of deportation and their employer exploited that fear.

A similar vulnerability was identified by the Federal Magistrate in the case of Zefirrelli Pizza Restaurant, who underpaid employees on 457 visas.

There have been other examples where visa holders who question the actions of their employer have been dismissed and then deported as an example to other workers to ensure their compliance.

When we hear about cases of workers on 457 visas who got justice because one of them was brave enough to complain to the authorities, it really should make us wonder how many more cases go unreported.

As I said in my speech on Fair Work Australia, there is no greater financial or human cost in workplace relations than the failure to have effective Occupational Health and Safety arrangements.

Such arrangements rely on the ability of workers to raise complaints and issues.

457 visa workers cannot raise OH&S concerns if they are silenced by fear.

OH&S is especially important for 457 visa workers as they tend to be employed in high-risk industries such as construction, manufacturing and mining.

This is why the temporary skilled migration scheme needs proactive monitoring, why workers need to be made aware of their rights, and why employers need to have their obligations enforced with penalties that provide an effective deterrent.

I note that last Monday, in an article in the West Australian, the Shadow Minister for Immigration said that the Opposition would support our reforms.

The Shadow Minister, Sharman Stone, went on to admit that the 457 visa scheme led to exploitation of workers.

While I welcome the Opposition’s support, I would like to know why they decided to wait for the Rudd Government to put forward the legislation before supporting reform.

Have cases of worker exploitation only recently come to their attention?

We identified exploitation of overseas workers years ago and have been calling for changes to 457 visas ever since.

So why did the Opposition fail to lead on temporary skilled migration reform when they were in Government?

I would be very interested to hear Dr Stone explain in The Other Place why she suddenly sees reform of the temporary skilled migration system as necessary after the litany of complaints and concerns that were raised for many years while her party was in Government.

Of course the Rudd Government recognises that reform is overdue and we are leading on it.

On 18 April 2008, the Minister for Immigration and Citizenship, Senator Evans, established an independent integrity review into the 457 subclass visa.

The terms of reference of the review included:

• measures to strengthen the integrity of the 457 visa program
• the employment conditions that apply to workers employed under the temporary skilled migration program
• the adequacy of measures to protect 457 visa holders from exploitation
• the health and safety protections and training requirements that apply in relation to temporary skilled workers
• the English language requirements for the granting of temporary skilled migration workers’ visas, and
• the opportunities for Labour Agreements to contribute to the integrity of the temporary skilled migration program.

The Migration Amendment (Worker Protection) Bill is the Government’s response to the review’s recommendations.

It contains a number of measures to strengthen the integrity of Australia’s temporary skilled migration program and to minimise the exploitation of workers.

The bill contains improved sanction powers—including new powers—against a sponsor who fails to satisfy a sponsorship obligation.

In the event of a sponsor failing to satisfy their obligations, the Department of Immigration may initiate civil proceedings against them in the Federal Court.

A penalty of up to 60 penalty units (currently $6,600) can be imposed on an individual or 300 penalty units (currently $33,000) on a body corporate.

The Department may cancel the sponsor’s approval as a sponsor and bar them for a time from making further applications for approval as a sponsor.

The bill also contains provisions for improved monitoring and information sharing.

It will allow the Department to collect contact details of 457 visa holders from larger employers for the purpose of providing them with information about their rights and entitlements while in Australia.

The bill will allow for greater information sharing between the Department, the sponsor and the visa holder allowing all three parties to be better informed of each others’ circumstances.

There will also be provisions for information sharing between Commonwealth, State and Territory governments to facilitate a whole-of-government approach to compliance.

Provisions in the bill will amend the Taxation Administration Act 1953 to allow the Commissioner of Taxation to disclose tax information to the Department of Immigration and Citizenship.

This will allow the Department to confirm with the Tax Office what taxable salary is being paid to visa holders for the purpose of ensuring that the minimum required salary is being paid.

The bill will introduce a better regime for monitoring compliance with the obligations of the visa.

New inspector powers will be granted modelled on the workplace inspector powers in the Workplace Relations Act 1996.

Inspectors will have the power to

• enter the premises without force,
• inspect the premises,
• interview any person,
• require the production of documents, and
• copy such documents.

The bill will also improve the framework for sponsorship, setting out obligations for approved sponsors in Regulations that for the first time will be enforceable by law.

The Regulations will be developed in consultation with stakeholders and finalised in the coming months.

The Regulations will establish a process to vary an approval so that an approved sponsor does not have to go through the whole sponsorship process again just to seek a variation to their sponsorship.

The bill introduces a range of provisions to better protect temporary overseas skilled workers. It includes:

• improved monitoring powers,
• the introduction of civil penalties for sponsors who breach obligations,
• clarifying sponsor obligations and ensuring they are enforceable under the Act, and
• greater information sharing between governments and Government agencies

This reform process is central to maintaining the integrity of Australia’s temporary skilled migration regime and restoring community confidence in the protection of the rights of overseas workers.

While these reforms are important and necessary, the Government is open to advice and feedback on further reform.

The Rudd Government has therefore established a Skilled Migration Consultative Panel comprising representatives from State and Territory governments, the business community and other industrial stakeholders.

This Panel will consider proposals for temporary skills migration reform and advise on their impact on business, the Australian workforce and the broader community.

In conclusion, let me re-iterate:

The Rudd government has worked to strengthen the integrity of the temporary skilled working visa program by:

• As of 1st August this year increasing the minimum salary level for subclass 457 visa holders (for the first time in two years) and that applies to existing visa holders.
• Appointed an Industrial Relations Commissioner, Barbara Deegan to review the integrity of the current subclass 457 visa program with the aim of better protecting overseas workers.
• This report will be referred to the Skilled Migration consultative Panel which is made up of industry, union and state government representatives.
• And introduced the Migration Legislation Amendment (Worker Protection) Bill 2008 which has four main provisions:

(1)

expanded powers to monitor and investigate concerns of non-compliance by sponsors

(2)

the establishment of penalties for employers found in breach of their obligations

(3)

Improved information sharing to allow immigration officials to check the tax records of employers and employees to ensure they are paying the correct wages; and

(4)

Better defined sponsorship obligations for employers and other sponsors.

The details of the obligations will be finalised in consultation with the consultative Panel by early next year.

I would like to congratulate the Minister on his initiative in bringing this reform proposal to the Senate and for the sake of 457 visa holders throughout Australia I urge all Senators to support it. Thank you.

Louise Pratt (WA, Australian Labor Party) Share this | Link to this | Hansard source

The incorporated speech read as follows—

I welcome the opportunity to speak on this important piece of legislation.

In my first speech, I wished the Leader of the Senate and Immigration Minister well as he attempted to untangle the mess that the previous government made of our immigration system.

In particular, I highlighted that the exploitation of workers under 457 visas still needed to be resolved.

I pointed out that, unless all workers in Australia enjoyed the same rights and entitlements, even those whose licence to stay here is only temporary, our immigration system would be undermined

The Australian public, and Australian workers in particular, need to be assured that the immigration system is not being used as a backdoor way to undermine Australian working conditions

I am pleased the work needed to restore faith in our immigration system is now underway through this bill and other work forthcoming.

This bill is a positive reform that will help put a stop to unscrupulous behaviour.

It will help put an end to the exploitation of workers, who arrive in Australia with skills that assist our economy to grow, but who experience abuse and mistreatment.

It will put an end to the unplanned and unregulated explosion of the Subclass 457 visa program.

It will help ensure that Australian workers wages and conditions are not undermined.

This is particularly important in these times of economic uncertainty

457 visas are, in and of themselves, not the villain in this picture.

457s were originally brought about to address the widespread skills shortages.

My home state of Western Australia has particularly benefited from the skills that temporary workers have brought to our state and our economy.

The resources boom has provided employment for many, particularly in WA.

And still more skilled workers were needed.

But as we know, this was partly because the previous government had failed to invest in skills development, in long term education and training.

Addressing the skills shortage is a priority for the Rudd Labor Government

We are addressing the skills shortage - not only by fixing up the 457 visa program - but also through the provision of $19.3 billion in education and training opportunities in the 2008-09 budget.

The Government has committed an investment of $1.9 billion over five years for up to 630,000 new training places.

We’re building the skills and knowledge for the jobs of the future.

The subclass 457 visa program has benefited employers by providing access to migrants with ready skills that have helped businesses to grow.

It has also given some temporary migrants the opportunity to work in Australia:

• to use and develop their skills;
• to earn good wages; and
• to enjoy good working conditions.

But that hasn’t been not the case for all temporary migrant workers.

Increasing demand for skilled workers, particularly over the last five years, has put pressure on the 457 visa program.

The scheme has grown rapidly.

It has expanded to include lower-skilled occupations

And this expansion has brought with it many temporary workers with lower levels of English language skills.

This context has led to increased exploitation and abuse of workers under the scheme.

Workers have been exploited in a number of ways - including being underpaid and not paid at the correct salary level and even not being paid at all.

The AMWU has brought to my attention many examples of the ways in which workers are being exploited under the scheme.

Cases like that of the company Aprint.

In September last year, this company withheld $93,000 in wages from four Chinese 457 visa workers.

The workers were made to work more than 60 hours a week.

More than ten thousand dollars was taken from their wages for lawyers and travel fees.

The company was fined $9,240 for breaching the Workplace Relations Act.

But amazingly, the company was not subject to any penalty in relation to breaches of their obligations under the 457 visa scheme.

Recently, I met with a group of Filipino workers who are currently in Australia on 457 visas.

I heard their stories of exploitation.

One group of workers told me they were required by their employer to live in one house.

Rent was deducted from their wages for the privilege of living in this house.

They were not free to move to other, more suitable or cheaper accommodation.

Two of the workers wanted to move out.

They wanted to live in different accommodation.

They wanted choice over this critical aspect of their living conditions

But after repeatedly requesting that the company stop deducting rent from their wages, they were told that the house they were living in was owned by the company, and therefore, that rent deductions would not be stopped.

This is not an isolated case, there are many others just like it

The union advocated on behalf of these workers, and finally, they were paid back the amount of rent that was deducted from their wages.

Before this union advocacy, they had no choice, no options and no say.

This kind of exploitation has led workers, their unions and many employers to raise serious concerns about the integrity of the program.

What such examples of exploitation make clear - is the need for penalties to be applied to unscrupulous employers.

And this legislation does just this.

Labor is committed to ensuring that employers know their rights and responsibilities under the scheme and act accordingly

The government is also committed to making sure that local workers do not lose job opportunities to workers on 457 visas.

Employers must abide by conditions that make sure that we keep providing employment and training opportunities for Australian workers.

$19.6 million has been allocated in the 2008-2009 budget by the Rudd government to improve the processing and compliance aspects of the 457 visa program.

The bill will expand powers to monitor and investigate non-compliance by sponsors of workers

This is of critical importance because it will allow for more trained officers who will be able to conduct site visits to make sure sponsors are complying with their obligations.

These inspectors will be able to

• Inspect the premises;
• Interview people
• Require that sponsors produce particular documents, and
• Copy documents

Sponsors who do not cooperate with a written request to produce a document may face up to 6 months imprisonment.

The exploitation of workers through not paying wages or paying incorrect wages will be dealt with by penalties such as fines of up to $33,000 for companies that breach their obligations.

The bill will also improve information sharing across government to make sure that the correct salary is being paid to workers.

Again, this will help put a stop to the exploitation of workers.

It will also provide clarity in relation to the obligations of employers and other sponsors.

This includes providing clarity on the time period within which a sponsor must meet their obligations and the way in which the obligations are to be satisfied.

And these obligations will be, for the first time, enforceable by law.

Sponsors who have already been approved may not need to go through the whole process of seeking sponsorship approval when they want to vary their sponsorship.

This will make the whole sponsorship approval process much more efficient.

So this legislation will be good for employers and it will be good for workers.

It is the first step in the process of rectifying a system that contributed to the exploitation of workers under the previous government.

But there is more to be done.

I was pleased to meet with workers on 457 visas recently here in parliament and with delegates from the AMWU, the ANF and the CFMEU about this issue.

Through this delegation and through individual meetings with visa holders I have heard that there is a real need to improve access to health and community services for workers and their families.

Employers should not be able to direct workers as to whether seek medical attention.

As the AMWU points out – imagine a situation where a worker is sick and needs medical treatment but pressure is put on them not to attend health services by the employer because of the cost.

That is not an acceptable situation for any worker.

Many of these workers, and the families that sometimes accompany them, live in isolation.

For some, their world is limited to the workplace –

Even their accommodation is dictated by their employer

But more than that, workers are even isolated in the workplace, isolated from fellow workers who are Australian residents

457 visa holders should have the right to collectively bargain their wages and conditions alongside their work colleagues who are Australian residents.

They should not, as some do now, experience fear and intimidation when trying to find out what their rights are.

They should not, as some do now, experience fear and intimidation when they want to talk to other workers about their pay and conditions.

They should be in a position, as all Australian workers should be, to feel confident that contacting their union will not bring with it retribution of some kind.

This workplace isolation is compounded by the isolation that families of 457 workers experience.

Those that are fortunate enough to have their families with them sometimes feel cut off from their communities and from services they should be able to access.

I note there are some very successful programs operating in my home state of WA to break down the isolation experienced by temporary migrant workers and their families.

The AMWU has been successful in working with community organizations and particular groups of workers to develop social networks, so that this isolation can be broken down and workers can get to know their rights.

The government knows there is more work to be done.

That’s why earlier this year the Minister for Immigration appointed Barbara Deegan to conduct a broad review of the integrity of the 457 visa program.

Ms Deegan’s report clearly states the complexity that 457 visa holders and their sponsors face.

The report details the ways in which 457 visa holders are exploited and the way in which the system, through rapid growth and long term neglect has perpetuated this.

The report paints a way forward including replacing Minimum Salary Levels which visa holders are currently paid under with a fairer market rate system for all workers earning under $100, 000 per annum.

Lack of information about rights and obligations by 457 visa holders is a common theme through the report.

Giving information to workers about their rights can lead to ending exploitation.

Recommendations such as giving information to new applicants regarding realistic pathways to permanent residency such as skill and English language requirements.

And providing clarity around the right to end their employment and seek work with another employer.

This is to stop insidious situations in which workers feel they cannot speak up about poor and unsafe work practices in case it jeopardizes their application for permanent residency.

The report also recommends that employers be barred from taking money from workers as a result of the worker gaining employment with them and from deducting wages for the payment of any agent.

The report made an important recommendation on the issue of fair pay. Arguing that 457 visa holders should be paid the same as the Australian workers they work alongside.

This is in the best interests of these workers, equal pay for the same work. Such provisions will also help ensure that employers don’t seek to bring in 457 workers just because it is cheaper, but will only do so when there is a legitimate shortage of appropriate labour. In the current economic climate in an uncertain labour market this is vitally important.

Stopping the exploitation of workers, making sure they have access to information about their rights and making the system run more smoothly and efficiently is the first priority.

And for that reason I commend this bill to the Senate.

Anne McEwen (SA, Australian Labor Party) Share this | Link to this | Hansard source

The incorporated speech read as follows—

It is a pleasure to speak today on a bill that will lead to some much needed reform of Australia’s migration policies. My office deals with many constituent enquiries surrounding migration and these enquiries are rarely solved quickly, but require much research and time. Often these enquiries are about reuniting family members, finding employment or gaining citizenship, all situations that can cause significant stress.

Under the previous Government, Australia’s immigration policies were cause for international condemnation, particularly our detention policy. Many people - even Australian citizens - were kept in detention for years, despite posing no danger to the community and children were also trapped in those environments.

This destructive detention scheme caused much pain to many and cost taxpayers a lot of money. The Rudd Government is working to change all this and is working to reform the system to take a risk based rather than punitive approach to detention policy.

This government is committed to protecting our nation from the potential dangers posed by some unauthorised arrivals or unlawful non-citizens, but we are also committed to treating people with dignity.

We are not putting our country’s security in jeopardy as we make these changes; we are simply putting the concept of human decency back into Australia’s immigration policies. Labor does not believe that we can only protect our nation at the expense of other’s rights and quality of life.

The Government is still maintaining mandatory detention for those unlawful people who are not Australian citizens and who present an unacceptable risk to the community or who repeatedly refuse to comply with their visa conditions. Unauthorised boat arrivals will still be subject to mandatory detention for health, identity and security checks. But let me be clear that we will only use detention centres as a last resort and for the shortest practicable time.

The Joint Standing Committee on Migration is currently conducting an inquiry into Immigration Detention in Australia. As a member of the committee, I have visited a number of detention centres in Victoria, Christmas Island and Western Australia with the inquiry and these experiences have given me a deeper understanding of the system. The issue of immigration is always an emotive one and detention centres are something that people are extremely passionate about, one way or the other; this was evident in the 133 submissions received by the inquiry.

The committee has held public hearings in Darwin, Christmas Island, Canberra, Melbourne, Perth and Sydney. The information presented by witnesses at these inquiries is often moving and always informative.

The inquiry so far has proven to be very beneficial to the Government and I thank everyone who has taken the time to take us around detention centres, appear as witnesses and make submissions. We are making informed decisions as we move Australia forward.

I am pleased to note that these moves forward haven’t gone unnoticed. Earlier this month the Sydney Morning Herald published a story regarding the Rudd Government’s fast assessments of 26 Afghan and Iranian Asylum seekers on Christmas Island.

Steven Glass, a volunteer for the Refugee Advice and Casework Service is quoted as saying “ a number of the asylum-seekers are not behind fences and the kids are all going to the local school. My overall impression is [the department]- and GSL are going to whatever lengths they can to make conditions as good as possible. They are looking at planting trees, tearing down fences.”

The Citizenship Test is another Howard Government policy that caused great distress to my constituents last year. They visited and phoned the office asking many questions with much confusion and fear in their voices. The Rudd Government has also expressed its concerns about the structure and content of the test. For this reason we recently conducted an independent review to determine its fairness and effectiveness.

On Monday, the Minister for Immigration and Citizenship, Chris Evans tabled the report resulting from this review. The review found that while 99 per cent of skilled migrants were passing the test, almost one fifth of those who come to Australia as part of the Humanitarian Program are not. This shows that the test is acting as a barrier between people and Australian citizenship, not equipping them for citizenship as intended.

The Review Committee’s central recommendation is for the legislative requirement to have an “adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship” be linked to concepts and information people need to understand in order to make the Pledge of Commitment. This recommendation is supported by the Government.

Another reform that the Government has made is the abolition of the temporary protection visa regime, a regime which actively prevented refugees from being able to rebuild their lives. The regime denied refugees the entitlements and security of permanent residency, despite our international obligations. Not only was this a further stain on Australia’s reputation but it also entirely failed to serve its claimed purpose.

Evidence shows that the temporary protection visas did nothing to prevent unauthorised boat arrivals, in fact, numbers actually increased not long after the introduction of the regime.

This treatment of refugees was disgraceful. It is important that we treat these people with respect and recognise the varied benefits of accepting others into our country, including filling skills shortages. The resources boom, low levels of unemployment, and the failure of the previous Government to invest in the education and training, have contributed to skills shortages across the country.

Labor has tackled these skills shortage which were ignored by the Howard Government for so long. In May we released a Budget that invests $19.3 billion in education and training to ensure we continue to provide employment and training opportunities to Australians.

The Budget outlined the Government’s commitment to invest $1.9 billion over five years to fund up to 630,000 new training places. These new places will skill Australians for the jobs of tomorrow and close existing skills gaps.

While this investment into the education and training of Australians for the future is crucial, we need to take action that will give us immediate results too.

Over the last five years Australian employers have increasingly turned to the temporary skilled migration program to bring in the skilled workers they need. The Rudd Labor Government has eased the pressure on employers by adding an extra 31,000 skilled migrants to the 2008-09 migration program.

We have recognised that this record 30 per cent intake increase could put strain on a department already struggling with demand, and so we are working to tighten up processing procedures and improve servicing standards.

The Rudd Government knows that business needs as many skilled people it can get, so we are working to make the process easier for both employers and employees.

In light of the current economic situation, the numbers of skilled migrants coming in may change. The migration program is designed to fill positions that can’t be filled locally and Minister Evans is working to better target the program to the areas most in need, including; IT, engineering and health care.

While making amendments to existing programs, the Rudd Government has looked at new ways to assist Australian employers. The Australian horticulture industry reports that up to $700 million in fresh produce is left to rot because of the unmet demand for low skilled workers. We have developed the Pacific Island seasonal worker scheme to address this crisis.

The scheme will enable Pacific Islanders to work in Australia as seasonal guest workers, by expanding the existing subclass 416 visa to cover workers who have been invited by an approved organisation. The pilot scheme will run over three years and will allow up to 2500 seasonal workers from Kiribati, Papua New Guinea, Tonga and Vanuatu to work in the horticultural industry in regional Australia for up to seven months each year. This type of scheme has received widespread support from organisations, with the World Bank stating that ‘there is no doubt that expanding economic opportunities for Pacific Islanders will translate into a stronger Pacific and that is in the interests of all countries in the region.’

We have also taken action to reform the 457 visa program and this bill will take that reform even further. The previous Government allowed the 457 visa program to run without sufficient safeguards to prevent the exploitation of temporary skilled foreign workers or the undercutting of wages and conditions of Australian workers. Many stories emerged of 457 visa holders being exploited. One case which then Shadow Minister for Immigration, Integration and Citizenship, Tony Burke, spoke of last year was of a person who was being paid the official immigration rate of $42,000 a year, but had had to spend $20,000 to purchase the job. And that $20,000 was being deducted in equal instalments every day he was paid for the first year.

So he was being paid a further $20,000 less than what the visa said he was going to be paid and of course once the twelve months was up and he’d repaid the debt, he was immediately terminated without cause. The economy desperately needs access to temporary skilled labour, but this is only sustainable if the community is confident that temporary overseas workers are not being exploited or used to undermine local wages and conditions. The Rudd Government is committed to improving the 457 visa scheme, whilst protecting the rights of overseas workers along with the employment opportunities of our own citizens.

On the seventeenth of February this year we announced a package of migration measures designed to help alleviate Australia’s skills and labour shortages and ease inflationary pressures including:

• adding 6000 places to the general skilled migration program;
• expanding the reciprocal working holiday visa program for young people;
• allowing working holiday makers who work for at least three months in the construction sector to apply for a further working holiday visa; and
• appointing an external reference group to advise how temporary work visas could contribute to the supply of skilled labour.

The Government has made great progress in positive immigration policy reform, and the bill before us today is the next step in that reform process. The Migration Legislation Amendment (Worker Protection) Bill makes amendments to the Migration Act 1958. The aim of these amendments is to enhance the framework for the sponsorship of non-citizens seeking entry to Australia.

The new framework will strengthen the integrity of temporary working visa arrangements, including the existing Subclass 457 visa program.

This will be achieved through four main measures:

• providing the structure for better defined sponsorship obligations for employers and other sponsors;
• improved information sharing across all levels of government;
• expanded powers to monitor and investigate possible non-compliance by sponsors; and
• the introduction of meaningful penalties for sponsors found in breach of their obligations.

Let me go through these in more detail. The bill proposes to amend the Migration Act to provide that the Migration Regulations 1994 may specify the obligations to which particular classes of sponsor will be subject, together with when those obligations apply and how they may be satisfied. These obligations are not specified in the bill as a high degree of flexibility is necessary for the program to operate effectively over time and there will be a need to prescribe additional obligations as more visas are brought in with the new framework. If the obligations were written in this bill, it would make putting additional obligations in a very slow and difficult process.

Though the obligations have not been written, I can say that when prescribed in the Migration Regulations, they will:

• lead to effective and efficient identification of non-compliance - this could be done for example by obliging sponsors to cooperate with monitoring by the Department of Immigration and Citizenship;
• discourage inappropriate use of temporary skilled visa programs - this could be done for example by obliging sponsors to reimburse the Commonwealth for location, detention and removal expenses should the visa holder abscond; and
• provide an effective price signal to encourage the hiring and training of Australian citizens and permanent residents; and, most importantly protect overseas workers from exploitation.

The current provisions for the disclosure of information have proved insufficient for effective and efficient operation of the temporary skilled migration program. For example, the Department cannot at present lawfully collect contact details of Subclass 457 visa holders from larger employers for the purpose of providing those visa holders with information about their rights and entitlements in Australia.

The Migration Legislation Amendment (Worker Protection) Bill will rectify this by expanding the range of circumstances in which the information may be shared between the Department, the sponsor and the visa holder. These amendments will ensure that the three parties involved in the program will be adequately informed of each others circumstances.

The bill will insert new provisions which amend the Taxation Administration Act 1953. These amendments will allow the Commissioner of Taxation to disclose tax information, if the tax information relates to a visa holder, former visa holder, approved sponsor, or former approved sponsor. This will allow the Department of Immigration and Citizenship to confirm with the Australian Taxation Office what taxable salary is being paid to visa holders.

The third main measure is another move designed to increase the protection of our workers from overseas. Amendments proposed in the bill will give specially trained employees of the Commonwealth the power to monitor compliance with program requirements, including the redefined obligations. These officers will be known as Inspectors and will be appointed by the Minister for Immigration and Citizenship.

Inspectors will be able to conduct site visits as well as request relevant documents from sponsors in writing within specified timeframes.

The powers of these Inspectors will include:

• inspect the premises;
• interview any person;
• require the production of documents; and
• copy such documents.

The final measure I wish to discuss is the introduction of penalties. Current administrative sanctions have failed to encourage compliance in all circumstances. The amendments proposed in the bill introduce a civil penalties framework to actively discourage non-compliance.

This will allow civil legal action to be taken against sponsors who are found in breach of the redefined obligations found in the Migration Regulations. The maximum penalty per offence, which will be determined by a Court taking into account all relevant circumstances, is $6 600 for an individual and $33 000 for a body corporate. It is hoped that these penalties will encourage sponsors and visa holders to meet their obligations so that this system can be as fair and effective as possible.

Migrants play an important role in our country and they deserve to be treated as equal to Australian citizens. This bill will work towards that equality by ensuring that the working conditions of sponsored visa holders meet Australian standards. I commend the bill to the Senate.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

The incorporated speech read as follows—

The 457 visa program allows overseas workers to enter for a period of up to four years to work in skilled occupations.

I am happy to speak to this bill today as I have had a long running interest in this topic.

2007-08 saw almost 60 000 visas granted to overseas workers. This bill introduces a range of provisions to better protect temporary overseas workers under the Migration Act (1956).

There are four main elements to this bill:

• The bill will improve monitoring powers
• See the introduction of civil penalties for sponsors who breach obligations
• Clarify the obligations that sponsors have and ensure that they are enforceable under the Act
• And importantly, this bill will facilitate greater information sharing among agencies.

The new laws will enable specially trained officers with investigative powers to monitor workplaces and conduct site visits to determine whether employers are complying with the redefined sponsorship obligations.

Fines of up to $33 000 are proposed for employers found in breach of the obligations in the Migration Regulations.

Additionally, the Department of Immigration and Citizenship will retain the ability to cancel an employer’s sponsorship approval or bar sponsors from re-applying for approval for a set period of time.

This bill includes amendments which will allow the Commissioner of Taxation to disclose tax information of visa holders, former visa holders, approved sponsors, or former approved sponsors to the Department of Immigration and Citizenship in order ensure correct salary levels are being paid to all visa holders.

This amendment is complemented by several additional elements that will ensure the long-term success of the 457 visa programme.

As an important initial measure, this government introduced a wage increase of 3.8 per cent as of October this year. This increase comes after a two year freeze on the wages for 457 visa holders under the previous government.

Moreover, in April this year, industrial relations commissioner Barbara Deegan was appointed to conduct a broad review into the integrity of the temporary skilled migration program.

Ms Deegan’s recommendations will inform the development of longer-term reforms to the 457 visa program that will be brought forward in the 2009 Budget.

In June 2007 the previous Government introduced a Bill that included provisions which:

• tightened the monitoring and sanction provisions that applied to 457 visa holders;
• allowed for information sharing between the Department of Immigration and Citizenship and the ATO on 457 visa holders and their sponsors; and
• clarified the obligations of 457 visa sponsors.

This was the previous Government belatedly attempting to address stories and examples of abuse of the 457 visa system.

Many of these abuses and cases of exploitation of workers were being characterised by commentators as “horror stories”. Yet in the face of these horror stories, the previous government did not prioritise the legislation and the bill was not passed before the 2007 Election.

Even still, a total of 192 sponsors were formally sanctioned and a further 1353 employers were formally warned in 2007-08. This compares with 95 sanctions and 313 formal warnings issued in 2006-07.

Examples of the horror stories involving 457 visas include the situation that arose with the company Dartbridge Welding.

This matter attracted a great deal of national media attention when it arose in late 2006. Dartbridge Welding recruited approximately 40 welders from the Philippines.

The welders were charged a $3,000 recruitment fee by a Filipino recruitment firm. They were also charged high levels of interest on this debt. Upon arrival in Australia, the welders were immediately taken to a bank and were presented with direct debit authorities to sign to give the employer and recruitment company the right to directly debit funds from the welders bank accounts.

The welders were placed in houses on the western outskirts of Brisbane, and charged $175.00 per week for rent, medical insurance and transport. The employer placed 8 people in each house, with two per each bedroom. The first job the welders undertook at Dartbridge was the fabrication of their beds.

The workers were subjected to a great deal of verbal abuse and threatening behaviour by the owner of Dartbridge. Following contact with the AMWU the welders joined the Union. Three of the most outspoken welders were dismissed from their employment.

Many more were threatened with dismissal and deportation.

In September 2007, Mr Yu Tu Chuoan of Aprint, withheld $93,000 in wages from four Chinese 457 visa workers. Mr Chuoan made the four work more than 60 hours a week and deducted more than ten thousand dollars from their wages for lawyers and travel fees.

Chuoan was fined $9,240 for breaching the Workplace Relations Act. He was not subject to any penalty in relation to breaches of his obligations under the 457 visa scheme. Under this legislation this will no longer be the case.

Recognising the need to address the cases of exploitation and abuse of the system, this Government has revived the bill and extended its scope.

The Migration Amendment (Workers Protection) Bill 2008 now includes important extra provisions:

• The bill now applies to all temporary worker visas. For example, this now Includes, occupational trainees and medical practitioners.

This is to stop employers from simply moving to other visa classes to avoid the bill’s provisions

• The bill now applies to visas issued under labour agreements. Again this is to stop employers from simply moving into labour agreements to avoid the bill’s provisions.
• And the bill now includes provisions which make the system more flexible for employers.

The Department of Immigration and Citizenship has been allocated $19.6 million over four years for the implementation of a range of 457 visa integrity measures, including this bill.

Financial impact statement

07/08   08/09       09/10       10/11       11/12

$0m     $5.1m      $5.0m      $4.9m      $4.3m

The Improved sanction powers:

• This bill maintains the sanctions of barring and cancelling where there is a breach of a sponsorship obligation, while providing for two new sanctions– civil penalty proceedings, and infringement notices in lieu of civil penalty proceedings.
• The bill provides that if an approved sponsor fails to satisfy a sponsorship obligation, the Minister may seek an order in the Federal Court or the Federal Magistrates Court that they pay a civil penalty of a maximum of 60 penalty units for an individual (currently $6 600) and 300 penalty units for a body corporate (currently $33 000).
• The bill makes clear that if the sponsorship obligations are not satisfied, the department may impose one, several or all of the sanctions on the approved sponsor (or former approved sponsor). For example, if an approved sponsor was not paying the minimum salary level (MSL) to an employee (and it is a prescribed obligation to pay MSL), the department can cancel the sponsor’s approval. The department may also bar them from making applications for approval as a sponsor for a set period of time and initiate civil penalty proceedings in the Federal Court or Federal Magistrates Court.

The improved sanctions are important step forward by this government.

In recognising the contribution that the 457 visa programme makes to our economy, this government remains aware that it is also responsible for ensuring safe and fair workplace for the visa holders while working in this country.

Improved monitoring and information sharing

• This bill introduces new powers for inspector which can be exercised for the purpose of monitoring compliance with sponsorship obligations and for other purposes prescribed in the Regulations.

The new inspector powers are modelled on the workplace inspector powers in the Workplace Relations Act 1996 (‘WRA’). This is to facilitate the carrying out of inspector functions by officers of Department of Education, Employment and Workplace Relations (DEEWR).

• The bill provides that inspectors have the power to enter, without force, any place the inspector has reasonable cause to believe that there is anything relevant to the purposes for which they may exercise their powers.

These powers include:

• The power to inspect the premises;
• The power to interview any person;
• The power to require the production of documents; and
• To copy such documents.

These inspections can be conducted at any time during work hours, or at any other time necessary for the purposes of the power.

• The bill inserts new provisions which will amend the Taxation Administration Act 1953. These amendments allow the Commissioner of Taxation to disclose tax information, if the tax information relates to a visa holder, former visa holder, approved sponsor, or former approved sponsor whose identity has been disclosed to the Commissioner of Taxation by the Minister for Immigration.

This will allow DIAC to confirm with the ATO what taxable salary is being paid to visa holders.

An improved sponsorship framework

• The bill provides that the approved sponsor must satisfy prescribed obligations.

The prescribed obligations clearly set out the period of time in which an obligation must be satisfied, and the manner in which the obligation is to be satisfied.

The result being that for the first time, the obligations are enforceable by law.

• The obligations were the result of wide-ranging consultation with relevant stakeholders.
• Already approved sponsors will not need to go through the sponsorship application approval process when seeking a variation to their current sponsorship arrangements.

This will obviously create efficiencies for the client and for the Department.

• The bill provides that additional sponsorship obligations set out in a labour agreement will be enforceable through the Migration Act.

Regarding Transitional arrangements – existing 457 visa sponsors

• Existing standard business sponsors will be subject to the sponsorship obligations from the date of commencement of the bill and will no longer be subject to existing undertakings.

All aspects of the new sponsorship framework will apply to existing standard business sponsors.

The Rudd Government is committed to ensuring the Subclass 457 visa scheme operates as effectively as possible.

The Rudd government recognises that the 457 visa programme is essential to contributing to the supply of skilled labour for this country.

However, the Rudd government recognises that the benefits of the 457 visa programme must not be enjoyed by this country without ensuring the protection of the employment and training opportunities of Australians and the rights of overseas workers.

Dana Wortley (SA, Australian Labor Party) Share this | Link to this | Hansard source

The incorporated speech read as follows—

I rise to add my support to the Migration Legislation Amendment (Worker Protection) Bill 2008.

This bill seeks to restore the integrity of the Subclass 457 visa program and, in doing so, rebuild community confidence in this important scheme.

It will introduce various measures designed to better protect those who come to Australia under this temporary workers’ arrangement from exploitation.

The bill proposes to amend the Migration Act (1958) to make sponsor obligations clearer, introduce civil penalties for those who fail to fulfil their 457 visa responsibilities, improve monitoring of the scheme and facilitate broader information sharing between government agencies.

Unlike a Bill introduced but never debated and never put to a vote by the former Howard government, this proposal importantly encompasses all temporary worker visas - including occupational trainees - and covers visas issued under labour agreements.

The changes we are introducing in the bill before us today are designed to prevent employers simply shifting to other visa classes or labour agreements to avoid their obligations.

As well as being structured to reinstate and safeguard the rights of workers, this document is designed to make this system more flexible for employers.

A properly functioning Subclass 457 visa scheme is an important contributor to the health of the Australian economy.

It is an important cog in the government’s efforts to continue to put downward pressure on interest rates and inflation by increasing the supply of skilled labour in this country.

It is no secret nor should it be a surprise that we are suffering an acute skills shortage in this country.

Unfortunately, eleven-and-a-half years of neglect in this area by the previous Howard Government made sure of that.

Addressing this serious and urgent need is one of the Rudd Government’s major commitments.

Our first priority is to attack this problem by educating and equipping Australians, so that employers’ skills demands are matched by the skills set of our community into the future.

In this year’s Budget, the government made a $19.3 billion pledge to get Australians ready and prepared for work.

A $1.9 billion investment committed within this sum will deliver up to 630,000 new training places provided over five years.

However, a skills crisis born out of indifference and inattention, and exacerbated by a resources boom and low unemployment, cannot be remedied overnight.

Industry needs skilled workers now and we simply do not have enough Australians appropriately trained and prepared to take up those jobs.

We need 457 visas, the overseas workers who receive them and the employers who sponsor those workers—and it is in everyone’s interests that it is a robust and transparent scheme.

The system originally was designed to be taken up by a small number of highly skilled, professional, English-speaking temporary migrants.

But in the past five years, as the skills crisis has worsened, the scheme has been forced to grow rapidly in response to industry demand.

In 2003-4 there were just fewer than 40,000 457 visas issued.

In the most recent financial year, this total had ballooned to more than 110,000.

Professionals—such as registered nurses and GPs and business, information and computer specialists—still make up the bulk of 457 visa workers.

However, labour market demands have been shifting across the life of the scheme.

The program has begun to attract greater numbers of tradespeople, as well as more workers from non-English speaking nations such as India, China and the Philippines.

With greater communication difficulties and lower levels of education, this growing group of employees has been at much higher risk of exploitation by unscrupulous employers.

Sadly, under the watch of the former Howard Government, exploitation became a scourge on the scheme.

Initially denying any problems with the 457 visas, then defending her department by virtue of the fact it could not properly monitor the scheme, the former minister ultimately ordered a stop on the public release of information about the program in 2006.

However, through the media, the Australian public began to hear about employers who were undermining local wages and conditions by bringing in 457 visa workers.

By June last year, the then Minister for Immigration Kevin Andrews started to move on trying to plug the holes in the scheme.

However, stakeholders were not properly consulted in this process.

This failure meant many of the system’s shortcomings were not identified, let alone acted upon.

Of the changes that were made, some were too heavy-handed, resulting in an increase in red tape across the scheme—even for the majority of employers who had been doing the right thing.

Overall, it was a case of too little, too late.

The program needed a real overhaul, not just some minor tweaking.

The Rudd government recognises the need for Australia’s temporary overseas worker program to be in tune with global migration trends.

This is essential if we are to stay competitive in the world labour market.

And we need the confidence of stakeholders at home if we are to engage employers to take up the economic opportunities the scheme offers.

One important element in the attempt to gain the confidence of the major players is wages.

In August this year, the government indexed the minimum wage for 457 visa workers for the first time in two years.

This has meant an increase in the non-regional base salary level from $41,850 to $43,440 per annum and from $57,300 to $59,480 for ICT professionals.

The Government also appointed Barbara Deegan, an Industrial Relations Commissioner, to review the integrity of the current 457 visa program and recommend measures to better protect overseas workers.

And in the 2008/09 Budget, the Rudd government gave real and meaningful backing to its commitment to improve the temporary skilled migration program by allocating $19.6 million towards that end.

That funding for a range of 457 Visa integrity measures, includes this bill.

It also covers the establishment of a departmental working group which is charged with the task of creating a longer-term reform package.

Ultimately, the Subclass 457 visa system needs to be streamlined and transparent if we are to prove its integrity to the Australian people.

It must not undermine the pay and conditions of Australian workers if it is to be accepted as legitimate.

And it must not allow the exploitation of the overseas workers it seeks to attract to employment in Australia.

In order to achieve these necessary advances, we have begun analysing and addressing stakeholder apprehensions with the scheme.

And we have begun to act—as I have generally outlined today—in a decisive, timely, considered, collaborative and coordinated fashion.

This bill is a crucial plank in that plan of action … that commitment to improve the Subclass 457 Visa system for all involved, particularly the employees and employers on which the scheme relies.

We have also taken into consideration the effects of the scheme on the Australian people and the Australian economy.

I commend the bill to the Senate.

Helen Polley (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

The incorporated speech read as follows—

I rise today to speak on the Migration Legislation Amendment (Workers Protection) Bill of 2008. I have taken an interest in this legislation and this area since I was heavily involved as the Deputy Chair of the Joint Committee on Migration into the inquiry into 457 temporary visas conducted last year.

That inquiry, “Temporary Visas, Permanent Benefits,” served as a wakeup call to a number of us about the 457 visa scheme. While we maintain that the highest priority must be placed on providing Australians with job opportunities and training, the simple truth is that the labour shortage and the skills crisis meant that for a number of businesses it was necessary to get hold of labour as soon as possible. The 457 program should never overshadow the need to develop the training and skills of working Australians.

That is where the 457 visa program comes in. By providing temporary skilled migration, it allows Australia to continue its economic development without being handicapped by a lack of skilled labour. It was designed to address areas of skills shortages within Australia. However, as the skills crisis has deepened, the needs of the labour market demand has changed. The scheme has begun pulling in a larger proportion of people in trade level occupations, as well as increasing numbers of workers from non English speaking countries. These particularly include the Philippines, China and India.

It is now recognised that workers in occupations below the professional level and from non English speaking backgrounds are at much higher risk of exploitation, particularly in the areas where we have traditionally seen industrial relations problems.

During the inquiry we travelled all across Australia and heard some horror stories about mismanagement of employees, exploitation and quite frankly disgusting treatment of a number of foreign nationals brought here to work under the 457 scheme.

We heard from unions about workers too scared to talk to the Department about their mistreatment, or even more appallingly forbidden to talk. Even worse we heard about how some of the workers, lacking in basic English skills, were completely unable to function in Australia.

We heard that some migrants who came here on the 457 program were being exploited in slave like conditions and weren’t being paid the minimum agreed wages. We heard the sad case of Pedro Balading from the Philippines. Mr Balading came to the Northern Territory expecting to work on a farm. Instead his job became fence posting and one day he was thrown from the vehicle he was riding in and died from his injuries. Not only was he lied to about his job and duties, but he then faced the indignity of his wages being garnished for his living expenses.

There was also the case of Mohammed Nayem who came here from Singapore who was forced to work 50 hour weeks, paid for 38 hours a week and then had $100 forcibly deducted from each pay packet as rent for his room – a converted office that he shared with five other men.

Australia didn’t turn out to be the land of opportunity for them.

I was truly shocked at the level of abuse of the scheme that was occurring. These abuses convinced me at the time that the Scheme, required serious reform if it was to continue.

I congratulate the Minister for this reform to address these concerns.

While the 457 Visa scheme is a wonderful idea, the sad truth is that the previous Liberal/Coalition Government failed to implement a number of simple oversight measures in the original legislation that even their own members should have been able to see were necessary. In that respect it had all the hallmarks of a Howard Government labour scheme – unfair and poorly thought out. A number of the recommendations we put forward in our report into the scheme were simple common sense ideas that really should have been present in the original scheme.

That they were not is a sad indictment on the motivations of the Howard Government.

I commend this legislation, and Minister Evans, for addressing a number of the concerns that we raised in that report. This bill will introduce a range of provisions designed to better protect temporary overseas workers.

These include:

• Improved monitoring powers;
• The introduction of civil penalties for sponsors who breach obligations;
• Clarifying sponsor obligations and ensuring that they are enforceable under the Act;
• Ensuring that there is greater information sharing amongst Government agencies.

It is vitally important that these reforms are passed in 2008. We have consistently demonstrated our commitment to improving the integrity of the 457 visa program over a number of years and here is tangible proof of that commitment.

The integrity of the 457 visa program has been undermined by its rapid growth and changing role, but it is only now – by the Rudd Labor Government - that its problems are being addressed.

For those in the Chamber who may be unfamiliar with this program, the 457 visa program is designed to allow overseas workers to enter Australia for a period of four years and to work in skilled occupations.

The scheme has increased four-fold in the last four years with around 110,570 people currently on the scheme in Australia.

In June of last year, the previous Government introduced a Bill that was belatedly aimed at addressing some of the problems that we had noticed in the 457 program. However that Bill was never debated and not passed prior to the previous Election. The Minister at the time, Kevin Andrews put forward these changes too late, and in a heavy handed way which meant that everyone involved in the scheme was caught up in extra red tape.

The Rudd Labor Government recognises that the ground here is shifting and that the role of the temporary skilled migration programme is changing. In order for Australia to remain competitive in the global labour market it is essential that we offer a robust, streamlined and transparent temporary migration program.

That is why we have put forward this bill. That is why we have already introduced a number of reforms aimed at improving the 457 scheme.

It includes a number of important extra provisions.

The bill applies to all temporary worker visas. It doesn’t matter if you are an occupational trainee or a medical practitioner you will be covered. This measure was brought down in part to stop employers simply moving employees between visa classes to avoid the bill’s provisions.

The bill also now applies to visas that are issued under labour agreements. This is another common sense solution to stop employers simply moving their employees onto a different agreement.

The new bill also includes a number of provisions to make the system more flexible for employers.

The Government has improved sanction powers under the bill. It provides for two new sanctions to employers who violate their obligations. These are civil penalty proceedings and infringement notices, which can be provided in lieu of civil penalty proceedings.

If a sponsor fails to meet their obligations under the Act, the Minister now has the power to seek an order in the Federal Court or Federal Magistrates Court to ensure they pay a civil penalty. This is currently $6600 for an individual and $33,000 for corporations.

It is also now made explicit that a failure to satisfy a sponsorship obligation may result in the department imposing ALL of the sanctions on the sponsor. This is designed to act as further deterrence for employers.

One of the major issues that we found in the Migration Committee investigation was the lack of proper information sharing between Government agencies. Often it was more than a case of the right hand not knowing what the left hand was doing, and it led to serious breakdowns in communication which disadvantaged workers.

We have introduced new inspector powers which can be used to monitor employer’s compliance with their obligations. They are modelled on the powers given to inspectors in the Workplace Relations Act of 1996. They allow officers of the Department of Education, Employment and Workplace Relations to carry out the following functions.

Inspectors have the power to, at any time they feel necessary, enter without force any place the inspector has reasonable cause to believe holds anything relevant to their case.

These powers allow them to:

• Inspect the premises
• Interview any person
• Require the production of documents
• And copy these documents as required.

It is to be hoped that these changes will prevent such sad cases as the one we read about in recent months in The Age. Industrial Relations Commissioner Barbara Deegan described how foreign middleman can demand excessive fees to gain or renew the visas, and then encourage Australian employers to exploit the workers by demanding ‘unlimited hours’ for minimum wage.

In addition to these changes, the bill will allow the Commissioner of Taxation to disclose tax information if the information relates to a visa holder, former visa holder, approved sponsor or former sponsor. This is at the discretion of the Minister for Immigration and will allow the Department to confirm details with the Tax Office with regard to salary and other allowances payable to visa holders.

Of course we are aware that it is important that measures to provide oversight to 457 visa holders must be implemented quickly. That is why existing business sponsors will be subject to the sponsorship obligations from the date the bill commences. All existing undertakings will be replaced by the new provisions of the bill.

This is necessary, not only to safeguard workers as I stated earlier, but also to maintain the integrity of the program. Without an abrupt cut off date, a situation would be created where some workers in a workplace were subject to the new monitoring and inspection powers and others were not. This is obviously not an ideal situation for anyone.

We have decided that this bill will commence within a period of 9 months from Royal Assent. This is important. The 9 month period will allow the recommendations of various review committees to be taken into account when drafting the necessary regulations and procedures.

This 9 month period will also be beneficial in educating all existing 457 sponsors and visa holders as to the changes that are being proposed.

As I stated at the outset of my speech, my previous involvement with the Migration Committee has given me some background on the issue of the 457 Visa program. I am extremely pleased that Minister Evans has introduced this bill and acted to end the inequities that were present in the scheme.

The 457 Scheme is something that serves a worthwhile purpose, however it is so important that it is used properly. The Rudd Government realises that the first priority must be to equip our own workforce to meet the skills of the labour market.

That is why in the 2008 Budget the Treasurer announced that the Rudd Government is making a $19.3 billion investment in education and training to ensure that we continue to provide employment and training opportunities for Australians. However we realise that investing in the education and training of Australians will not meet employers immediate skills needs.

That is why it is imperative that we restore public confidence in the 457 Visa programme. It is in everyone’s interests to have a robust and transparent scheme in place. A loss of public confidence in the 457 scheme can translate into a loss of popular support for the scheme and will act as a barrier to employers to take up the economic opportunities that the 457 visa scheme offers.

The challenge for this Government is to prove to the Australian people that the 457 visa program has integrity and that it is not undermining Australian wages and conditions.

That means that it is used to cover up legitimate skills shortages and not as simply an avenue for cheap unskilled labour.

That means that those who come here under the scheme receive every opportunity to report poor treatment instead of being condemned to slave like conditions.

That means that we as a Government ensure their conditions are monitored, and that they are being fairly treated.

I commend this bill to the Senate.

David Bushby (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I seek leave to incorporate comments by Senator Ellison.

Leave granted.

Chris Ellison (WA, Liberal Party) Share this | Link to this | Hansard source

The incorporated speech read as follows—

The Migration Legislation Amendment (Worker Protection) Bill 2008 amends the Migration Act 1958 and seeks to enhance the framework of the sponsorship of noncitizens to enter and work in Australia with the objective of ensuring the working conditions of 457 visa holders meet Australian standards and the costs of sponsorship are more fully identified and met by the sponsor.

The Coalition is supportive of the overall objectives of the legislation, believing that a framework for sponsor obligations is necessary but understanding that we have grave reservations about lack of availability of the regulations attached to this Bill. I understand that draft regulations are to be made available in the first part of 2009, and of course these will define the operation of the framework.

The failure by the Government to produce these regulations treats with contempt the needs of sponsors to have a clear understanding of their obligations and will keep in the dark many Australian businesses that have an overwhelming need for temporary sponsored visa holders in their workforce.

Even with the economic downturn in States like Western Australia and Queensland we are still hearing of skills shortages and the need for 457 visa holders.

The sponsorship framework provided for in the Bill is maintained by four main measures which:

• Outline the framework for a system of statutory regulations for sponsorship obligations in relation to 457 visas;
• Widen the sanctions that can be applied if a breach of those regulations is made by the sponsor;
• Detail a system of monitoring, compliance and information sharing powers; and
• Set out the transitional arrangements between the current and new regime.

On the face of it none of these measures, which are general in nature, could be termed controversial. It is the absence of detail going to cost, penalties and obligations of sponsors that causes concern.

Background

It is firstly worthwhile however to review the background of the 457 visa scheme.

In 1996 the Coalition introduced new visa categories to allow employers to sponsor skilled workers on a temporary basis, between three months and four years, to help ease chronic labour shortages.

The Temporary (long stay) Business Visa (subclass 457) is the most commonly used category. After a specified time, workers and their families can apply for permanent skilled migration.

Size and growth of the program

The annual intake for the 457 visa program has steadily increased from some 15,000 in 1997-08 to 22,370 in 2003-04 to 46,680 in 2006-07. In February 2008 there were 125,390 457 visa holders in Australia including 67,410 skilled workers and 57,980 family members.

There are currently nearly 19,000 employers using 457 visas. Nearly 30% of 457s are employed in NSW.

On average 457 visa holders stay two years and approximately 50% move to permanent residence via the Employer Nomination Scheme or the Regional Sponsored Migration Scheme. Apart from providing a temporary supply of skilled workers, the 457 Scheme has also proved to be a good source of permanent skilled migration.

The Bill

Under the proposed Bill visa holders can be sponsored by employers who must meet a series of “undertakings”. These “undertakings” are now to be specified in the new (as yet unseen) regulations.

According to the Rudd Government the regulations will be drawn up in the following months, followed by six months of consultation and education about the changes. All currently engaged sponsors will ultimately be transferred to the new regime.

The Bill’s Framework:

Sanctions

In addition to the current options of barring or suspending a sponsor for breaching an agreement, there will be new civil penalties of a maximum of $6,600 for an individual and up to $33,000 for an incorporated body. The Minister may also issue an infringement notice with a fine of up to one fifth of the maximum penalty. It is essential that, in relation to any sanctions, any element of retrospectivity is avoided. This is something on which we will place careful scrutiny.

Monitoring and Compliance

The power of Inspectors to monitor and investigate is modelled on the Workplace Relations Act; with for example, the same powers to request a document etc. Again these powers will have to be carefully scrutinised.

Information Sharing

The Minister will be able to reveal information about the sponsor to the visa holder and vice versa.

The Bill also contains an amendment to the Tax Administration Act so the Commissioner of Taxation can provide information to DIAC to find out if the company is “a good corporate citizen”. Understandably for the individual and the sponsor there will be sensitivities which must be safeguarded. How one defines a ‘good corporate citizen’ remain to be seen.

Transition Provisions

When the new regime comes into effect, all 457 visa sponsors will be moved to the new regime. The expected commencement date is mid 2010.

Discussion

While the framework in the Bill is supported by the Coalition as a further evolution of the obligations of sponsorship which the Coalition introduced through the Migration Amendment (Sponsorship Obligations) Bill in June 2007, a serious problem lies in the delay of the production of the regulations by the Rudd Labor Government. As I have said, the Coalition will subject them to close scrutiny when they are finally tabled.

The April discussion paper this year of regulation options released by DIAC does however give us some idea of potential new payment obligations for sponsors of 457 visa workers and their families.

These new options include:

• meeting all of the education costs of minors accompanying the worker;
• covering all medical costs, either through insurance or direct payment, including covering medical costs where the insurance company refuses to pay;
• paying any migration agent’s fees, or other costs of recruitment up to a maximum specified;
• paying all travel costs to Australia (before only travel from Australia was required);
• paying any licence and registration fees associated with the worker taking up employment in Australia.

The Rudd Labor Government has also proposed that sponsors not be allowed to use temporary overseas labour during periods of lawful industrial action or to influence enterprise bargaining negotiations. This could have very interesting interpretation challenges.

The framework refers to a new system of compliance and monitoring work. We need to be concerned that employers and sponsored visa applicants are not frustrated by greater red tape burdens.

There are also proposals that 400 series temporary work visas which have not required sponsors in the past, eg for those staying for less than three months, may in future require sponsors who will also need processing and monitoring. The Rudd Government will need to ensure that this does not put even greater pressure on the capacity for the Department to deliver efficient processing of applications for this group of visas and undermine the high regard in which the Australian migration system is held. It is important that the accessibility and flexibility of this programme is maintained whilst ensuring its integrity is maintained.

Financial Impact

The 2008/2009 budget allocated $19.6 million over four years including $0.4million in capital funding for 2008/2009, to develop the legislation, better define employers obligations, improve investigative powers, a more robust sanctions framework and a detailed information campaign. It is essential that the Department of Immigration and Citizenship be adequately resourced to effectively implement these measures.

Summary

It would be detrimental to Australian employers if the cost of bringing in skilled labour and the time the process it takes leaves Australia less competitive in the global market for the highly mobile skilled worker. Indeed, in it’s submission to the Standing Committee on Legal and Constitutional Affairs the Australian Chamber of Commerce and Industry submitted that the changes ‘seemed disproportionate to the actual scale of sponsorship problems’ and thought that the cost of measures might be prohibitive for many businesses and would discourage the use of the programme by Australian employers experiencing genuine skills shortages.

Indeed the DIAC’s annual report for 2006/07 stated that only 1.67% of sponsors were found to have breached their sponsorship obligations. A representative from Australian Mines and Metals Association informed the committee ‘we seem to be at odds as to where the justification for such a bill came from.’ Even the Minister Senator Evans was reported in the Australian Financial Review on 11 November 2008 as conceding that the ‘majority of employers did the right thing’.

In conclusion while the Coalition will support the Bill it will reserve the right to assess the regulations on the basis of what is best for Australia.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

In summing up, I would like to thank senators for their contributions to the debate on the Migration Legislation Amendment (Worker Protection) Bill 2008. I would also like to thank those who incorporated their responses due to the tight legislative timetable. I apologise for them having to do that, but there will be a record of their contributions.

This is an important piece of legislation. It was drafted in the first instance by the previous government and was not introduced in time before the last election. It has changed, but the basic policy intents—remedying some of the deficiencies in the arrangements surrounding sponsorship and dealing with sponsors who fail to do the right thing via sanctions and inspection regimes—were issues considered by the previous government. They took a decision that they needed a legislative response, because there have been restrictions on the capacity of the Department of Immigration and Citizenship to ensure the integrity of the system. My great concern as a defender of the temporary migration program is that it has been seriously undermined, and public confidence in it has been seriously undermined, by the exposure of cases of abuse of overseas workers. That represents a small number of incidents in terms of the overall program, but it is not an insignificant number. I would say to the Liberal senators who tried to suggest that the union movement’s concerns were not warranted: you are wrong—dead wrong. We have had serious problems and, as you know, the previous minister—

Concetta Fierravanti-Wells (NSW, Liberal Party, Shadow Parliamentary Secretary for Immigration and Shadow Parliamentary Secretary Assisting the Leader in the Senate) Share this | Link to this | Hansard source

We just asked for it to be put in context, Minister.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

I always put it in context, if you look at my speeches. I appreciate the opposition’s support on the bill, but the legislative impetus for this came from the previous minister because of his concerns. If you look at what he did in areas like the IT and meat industries, you see that he responded—in a fairly ham-fisted way, in my view—to concerns that he had about the exploitation of workers in those industries. This is not something that is unique to me as minister.

There have been serious issues of abuse. They are in the sorts of areas where you see industrial relations problems. The industries where there have been problems are the industries where you have problems with exploitation more generally. We have had examples, like the exploitation of cooks in the restaurant industry in Canberra, which have had to be dealt with. There are concerns. My consistent position has been that you can only defend the scheme if you make sure it has integrity. You can only allow it to work for employers who do need the skills if you ensure its integrity. This is about making sure we have the balance right in that regard, and it will give us the ability to ensure that it does have that integrity and that we can weed out the small numbers of sponsors who fail to do the right thing.

Regarding the question of consultations, unlike under the previous minister, who announced changes without any consultation—major changes in this area and major changes, more broadly, in the migration area—this consultation has been exhaustive. It started with me appointing an employer reference group, which has three representatives of industry, led by Mr Coates, whom Senator Trood may well know and who is senior executive and chairman of Xstrata. They looked at the 457 system and how we might make it more responsive to employers’ needs. On receiving that report, I implemented all but two of their recommendations. One which I did not implement was changing the name of the program, but I would like to do that at some stage. I think the program has seen a vast improvement in its responsiveness to employers and the processing of applications. If you talk to employers using the scheme, you will find that they are very complimentary about the changes and what those have meant for allowing them to access the scheme.

That was one point of consultation. The second was that I appointed the industrial relations expert Mrs Barbara Deegan to conduct an integrity review of the program, and she has spoken to hundreds of people throughout Australia and consulted with all the key groups. I released her report a matter of weeks ago. We also had a discussion paper that went to possible reforms that would be part of the regulations for this legislation. Again it was public, and again it received submissions—more than 80 were received. All of that is to be considered as part of the drafting of these regulations by the Skilled Migration Consultative Panel I established, which includes four members of senior industry bodies like ACCI, AiG and the Minerals Council, four union representatives and four representatives of the largest state governments. All are engaged in the process of getting the issues and integrity of the 457s right.

Senator Trood made a good point which is the key to all this: the scheme grew very quickly, and the public policy settings around it have been inadequate to cope with the growth not because of the numbers but because of what has happened in terms of the skill classifications and countries of origin. Under the scheme originally, we were bringing in highly trained medical professionals, engineers et cetera—people with obvious qualifications going into high-paid jobs sponsored by large companies. There were no problems with that. From an immigration point of view, I just want to know that they have a passport, a visa and no criminal history. Whether they get $250,000 or $300,000 from BHP every year is their lookout.

But with the expansion of the program we have seen the skill level come down so that we have a lot of people coming in at tradesman level. We have also seen the source country change. Source country change is important because we have people who do not have English as a first language, some of whom have very little English at all. That is where the exploitation occurred. People from China, the Philippines and India, lacking the English-language skills, have been brought in by labour hire firms into industries with sometimes poor IR records, and that is where the problems have been.

Concetta Fierravanti-Wells (NSW, Liberal Party, Shadow Parliamentary Secretary for Immigration and Shadow Parliamentary Secretary Assisting the Leader in the Senate) Share this | Link to this | Hansard source

Some are run by the unions, too.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

I do not know about being run by the unions. All I am saying is that the risk profile has changed and the public policy settings around it are not competent now. That was recognised by the former minister. I think it is broadly recognised in the parliament. This is about getting the right public policy settings around it. It is not about increasing costs to employers—I do not want to make the scheme such that it becomes prohibitive. Equally—

Concetta Fierravanti-Wells (NSW, Liberal Party, Shadow Parliamentary Secretary for Immigration and Shadow Parliamentary Secretary Assisting the Leader in the Senate) Share this | Link to this | Hansard source

They don’t know their obligations, Minister.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

They will know their obligations. They have been—

Concetta Fierravanti-Wells (NSW, Liberal Party, Shadow Parliamentary Secretary for Immigration and Shadow Parliamentary Secretary Assisting the Leader in the Senate) Share this | Link to this | Hansard source

You do a lot of consultation, but—

Mark Bishop (WA, Australian Labor Party) Share this | Link to this | Hansard source

Order!

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

We have done a lot of consultation because we want to get it right. They say to me that the former government never talked to them like we do about the detail of these things. I am constantly talking to industry about it. We have to get the balance right. We want to be clear, though, that we want 457 workers to be more expensive than Australian workers, because we do not want people to employ overseas workers in preference to Australian workers—a principle that the previous government used to articulate as well. One of the major requirements out of the Deegan report is about market rates of pay. We have the situation now where some overseas workers coming into the country are paid less than their Australian counterpart—that is, there is an incentive to use a foreign worker over a local worker. I do not think anyone in here would endorse that. The market rates argument is very important and will be central to any reforms.

I also want to pick up another point that Senator Trood made, although I do not want to go on for too long. The discussion paper deliberately raised the gamut of issues, including education costs because these are actually starting to impact on state education systems. In Queensland—your own state, Senator Trood—we suddenly had an influx of a large number of workers who then had kids who went into the public schools, which did not have the facilities to cope. Most of the rural communities are very glad to have them, because a lot of those towns are dying. They are very welcoming and there have been some really great stories about all of that.

At our primary school, which my youngest son has now left, they have now got 40 overseas students who do not speak English. But they have got no ESL teacher. The teachers are finding that the resources to cope with those students are not there. The P&C association has recently paid for the six-month employment of an ESL teacher because the teachers have been finding that they have not been able to give enough attention to the other students—a real problem that comes as a result of having overseas workers. It is not irrelevant; it is a cost to the taxpayer and a cost to the state education system—costs that have got to be considered. Personally, I am not going to look to lumber employers with those costs. We cannot pretend that we are not going to have a public policy debate about those because there is not an issue. There is, and state governments are raising it with me because the larger the number of overseas workers the bigger the drain on their resources.

Concetta Fierravanti-Wells (NSW, Liberal Party, Shadow Parliamentary Secretary for Immigration and Shadow Parliamentary Secretary Assisting the Leader in the Senate) Share this | Link to this | Hansard source

Senator Fierravanti-Wells interjecting—

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

That is right. Some of them are the biggest users, Senator, but this is complex. That is what I am saying: it is complex. So the discussion paper picks up all those issues. As I have said, there is an enormous amount of consultation and discussion going on around these changes. The Skilled Migration Consultative Panel are going to have the draft regulations referred to them. They will not agree on them all—I am sure of that—but we will have this process, the arguments will be held and in the end the government will have to make a decision.

I know there has been interest by Senator Xenophon and the Greens in this issue of regulations. I have made it clear that I am happy to distribute the draft of the regulations earlier in the year before they are introduced. I am happy to do that for the Liberal opposition and Senator Fielding so everyone sees the draft and everyone can give feedback. But I absolutely reject any suggestion that there has not been consultation about all this, and I am happy to compare the consultation on these measures with that on the former minister’s more substantive measures which were just announced.

There is a serious attempt here to tackle an emerging problem about the public policy parameters around the temporary skilled migration program. There are more emerging, quite frankly, as the economy turns down a bit. I appreciate the support from around the chamber. As I said, I will make draft regulations available to people before they are introduced and they will certainly go to the industry’s Skilled Migration Consultative Panel. Hopefully, at the end of this we will have a good outcome. Obviously it will not be agreed upon by all, but I think we will have regulations that provide integrity to the scheme, which has been under pressure, and protect overseas workers but ensure that Australian workers are protected from overseas labour undercutting employment opportunities for Australians. That is the right balance that we have got to get. I think that when we come to the draft regulations we will be able to get that balance right. I thank the Senate for its support for the bill.

Question agreed to.

Bill read a second time.