A NEW Regulation that will take effect on 1 December 2015 clarifies the obligations of all employers who are seeking to sponsor 457 visa holders into Australia.

According to the Explanatory Statement for the Migration Amendment (Clarifying Subclass 457 Requirements) Regulation 2015, the purpose of the new regulation is to clarify existing policy in relation to 457 visas.

The making of the Regulation was prompted by concerns the union movement had in relation to the passage of non-citizens into Australia under the soon-to-take-effect China Australia Free Trade Agreement (CHAFTA). Unions sought and obtained assurances from the Federal Government about the current and future application of particular 457 visa requirements for all employer sponsors.

“The Regulation is designed to reinforce the government’s intention that Australians will have priority in the labour market and that overseas workers will only be recruited under work agreements in circumstances where suitably qualified local workers are not available,” the Explanatory Statement to the Regulation says.

“These requirements already exist in policy and the elevation of the requirements into the regulations provides greater transparency.”

Requirements clarified in the new Regulation

Existing policy that is clarified and “elevated” in the new Regulation is as follows:

• Criteria for approval of nomination – The Regulation clarifies what is meant by the requirement for standard business sponsors to provide terms and conditions of employment to skilled migrants that are “no less favourable” than those provided to Australian citizens. Terms and conditions of an enterprise agreement under the Fair Work Act are included in cases where Australian workers are employed under an EA.
• Work agreements (labour agreements and project agreements) – The Regulation clarifies that the Commonwealth cannot enter into a work agreement for the employment of 457 visa holders unless the other party to the agreement (the company / employer) has made recent and genuine efforts to recruit Australian citizens. This gives statutory recognition to the existing policy requirement for employers to conduct labour market testing under a work agreement before seeking to sponsor a worker under a 457 visa.
• Visa conditions: commencement of work – The Regulation clarifies under Schedule 8 of the Migration Regulations 1994 the timeframes within which 457 visa holders must commence work after a visa is granted. Where the sponsored person is outside Australia when the visa is granted, they must start work within 90 days of arriving in Australia. Where the worker is in Australia when the visa is approved, they must start work within 90 after the visa is granted.
• Visa conditions: Licenses, registrations and memberships: The Regulation clarifies visa conditions under Schedule 8 where a licence, registration or membership is mandatory for performing the nominated occupation. If the visa holder is outside Australia when the visa is granted, they must hold that licence etc within 90 days after arriving in Australia. If they are in Australia when the visa is approved, the visa holder must hold that licence etc within 90 days after the visa is granted. This part of the new Regulation also clarifies that a visa holder: must notify the Department in writing “as soon as practicable” if an application for a licence etc is refused or revoked; and must not engage in work that is inconsistent with the licence etc.

For the new Regulation and Explanatory Statement, click here.

For the current Migration Regulations 1994, which will be amended with effect from 1 December 2015, click here.

Please contact AREEA’s Migration Services for further migration advice on (02) 9231 4043.