Migration Legislation Amendment (Worker Protection) Bill 2008
Second Reading Speech
From day one, the Rudd Government has been focused on ensuring we have the policy settings right to facilitate the entry of temporary workers in a way that’s responsive to the needs of employers, while at the same time retaining the integrity of the subclass 457 visa program.
The resources boom, low levels of unemployment, and the failure of the previous government to invest in the education and training of our own people, have contributed to endemic skills shortages across the country.
In addressing Australia’s skills shortage, the first priority of the Rudd Government is equipping our own workforce, our own people, to meet the skill requirements of industry.
In the 2008 Budget, the Treasurer announced that the Rudd Government is making a $19.3 billion investment in education and training to ensure we continue to provide employment and training opportunities for Australians.
The Budget outlines 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.
However, while investing in the education and training of Australians is crucial, it will not deliver the skills employers need now.
Over the last five years Australian employers have increasingly turned to the temporary skilled migration program to bring in the skilled workers they need.
However, the sudden growth of the scheme in recent years, coupled with its expansion into lower-skilled occupations and increasing numbers of workers with lower levels of English language skills have placed new pressures on the integrity of the subclass 457 visa program.
Community confidence in the scheme suffered under the previous government following a series of well publicised abuses of workers on subclass 457 visas.
The negative perception of the subclass 457 visa program is a very serious problem for the employers and industries that rely heavily on it.
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.
That is why the Rudd Government is placing such a high priority on both improving the responsiveness of the subclass 457 visa program and restoring integrity to the program.
On the 17th 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 external reference group has since reported, making 16 recommendations, 15 of which have either been implemented or are being implemented. The other one is the subject of ongoing consideration.
At the same time, the Government moved to index the minimum salary level (MSL) by 3.8 per cent, as the MSL had been frozen for over two years. This adjustment took effect from 1 August 2008, and will apply to new temporary skilled migrants coming to work in Australia, as well as those who were already in the workforce.
In April this year, I also appointed Ms Barbara Deegan, seconded from the Industrial Relations Commission, to conduct a broad review into the integrity of the temporary skilled migration program. Ms Deegan has released three discussion papers, and will report to me next month.
Her recommendations will inform the development of longer term reforms to the 457 visa program that will be brought forward in the 2009/10 Budget.
The Worker Protection Bill that I am introducing today complements action that the Rudd Government has already taken to boost the integrity of the 457 visa program.
The Bill will introduce a new 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.
It is intended that in the first instance the new framework will apply only in relation to non-citizens sponsored for temporary visas with work rights.
In the longer term, the new sponsorship framework could cover all visas, including permanent visas, for which sponsorship is a requirement.
The Government recognises that temporary skilled migration is a complex issue with many stakeholders.
This is why the Government has established a Skilled Migration Consultative Panel comprising representatives from state and territory governments, the business community and other industrial stakeholders.
The panel will provide advice and informed feedback on reform proposals based on a sound appreciation of the issues and the impacts these issues have on business, the Australian workforce and the broader community.
The panel has an important role to play in respect of the first measure I am now going to explain in more detail.
This measure goes to redefining the obligations that sponsors enter into when bringing to Australia a worker from overseas.
Scope for better defined obligations
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.
The Bill itself does not specify the obligations for two main reasons:
- first, as I explained earlier, there will be a need to prescribe additional obligations as more visas are brought within the new sponsorship framework and
- second, a high degree of flexibility is essential for the efficient and effective program operation over time in a dynamic area such as this.
Specifying sponsor obligations in the Migration Regulations will also afford the Government the opportunity to consider advice provided by the consultative panel and Ms Deegan before finalising the detail around each particular obligation.
Nonetheless, any sponsor obligations that are prescribed in the Migration Regulations 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
- 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.
Improved information sharing
The existing 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 amendments proposed in the Bill expand 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 also makes provision for the sharing of information about sponsors and visa holders with prescribed Commonwealth, state and territory agencies.
This will facilitate a cooperative whole of government approach to business compliance.
Expanded investigation powers
The 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 requesting relevant documents from sponsors in writing within specified timeframes.
The powers of these Inspectors will be substantially the same as the powers of Workplace Inspectors of the Workplace Ombudsman under the Workplace Relations Act 1996.
These include powers to:
- enter premises without force
- inspect things
- interview persons and
- require production of documents.
Failing to cooperate with a written request for production of a document will be made an offence punishable by a maximum of 6 months imprisonment.
Let me give you an example of how the two measures I have just outlined may be used to improve business compliance.
An officer of the Workplace Ombudsman exercising powers of inspection under the Workplace Relations Act 1996 and who has also been appointed an inspector under the Migration Act 1958 may enter the workplace of a corporate sponsor of subclass 457 visa holders. The officer could simultaneously investigate compliance with workplace relations and migration requirements.
This could reveal, for example, whether the sponsor had been complying with an obligation under immigration law to pay the visa holder at least a minimum amount in the course of the visa holder’s employment.
Incidentally, the officer may also observe questionable occupational health and safety practices at a particular worksite which could be referred to the state agencies with responsibility for such issues.
A subsequent investigation by the state agency could also reveal serious non-compliance about which they may notify the Department of Immigration and Citizenship, subject to the agency’s own restrictions on the disclosure of such information.
Where notified, the department could then take complementary sanction action where this is appropriate which would strengthen program integrity.
This action could include barring the sponsor from sponsoring more workers under the program for a certain period, as appropriate.
Penalties
The existing administrative sanctions, one of which I just referred to, have proven insufficient to encourage compliance in all circumstances, particularly amongst sponsors who only ever intend to use the relevant visa program once.
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 $6600 for an individual and $33 000 for a body corporate.
Alternatively, the Bill provides for the issuing of infringement notices in lieu of taking civil legal action. This will operate like other infringement notice regimes.
The maximum penalty per infringement notice is equal to one-fifth of the maximum civil penalty.
These new tools will complement existing tools utilised by the department in enforcing sponsorship obligations.
Summary
To summarise, this legislation will strike an appropriate balance between:
- facilitating the entry of overseas workers to meet genuine skills shortages
- preserving the integrity of the Australian labour market and
- protecting overseas workers from exploitation.
The better defined sponsorship obligations that will be found in the Migration Regulations will deliver greater clarity to both sponsors and overseas workers.
Improved information sharing and expanded investigative powers will better equip government to identify non-compliance without unduly imposing on business.
Civil sanctions will then give the department another tool for effectively managing non-compliance and preventing the exploitation of workers from overseas.
The Bill deserves the support of all members of this Parliament.
I commend the Bill to the chamber.
See:
Index of speeches and transcripts
URL: http://www.minister.immi.gov.au
/media/speeches/2008/ce080924.htm
Last update: 11 February 2010 at 14:17 AEST