The contents of this article are correct as at 30 June 2009
Migration Legislation Amendment (Worker Protection) Act 2008
The Migration Legislation Amendment (Worker Protection) Act 2008 will come into effect on 14 September 2009.
The Migration Amendment Regulations 2009 (No.5), which will commence on 14 September 2009, gives effect to various provisions in the Worker Protection Act.
Detail on some of the requirements, will not be available until the publication of other legislative instruments, such as gazette notices.
Below is an outline of some of the important changes.
Background and applicability
The Migration Amendment Regulations apply to sponsors of subclass 457, subclass 470 visas as well as parties to a labour agreement.
The new regulations will apply from 14 September 2009 to work agreements. The amended provisions relating to criteria to become an approved sponsor and for nomination applications will apply to applications not decided by 14 September 2009 and applications made on or after 14 September 2009.
The new sponsorship obligations and related provisions imposing penalties, bars and sanctions will apply to all sponsors from 14 September 2009.
The new obligations will apply to all subclass 457 visa holders who are working in Australia on or after 14 September 2009, including those working under a labour agreement.
As a matter of compliance, employers should review all employment arrangements for all existing subclass 457 visa holders to ensure that they meet the proposed changes.
Sponsorship obligations - general
The regulations refer to nine obligations for sponsors effective from 14 September 2009.
They include the requirements to:
The existing obligation to pay public health costs to the visa holder and accompanying family members by the sponsoring organisation has been removed and it will not form part of the sponsorship obligations.
Draft regulations and policy guidance regarding health costs should be available prior to 14 September 2009.
Obligation to ensure equivalent terms and conditions of employment
Sponsorship obligations – further details
Sponsorship restrictions and cancellations
There are regulations setting out circumstances in which a sponsor’s approval may be barred or cancelled.
The decision to impose such a penalty, and which one, will depend upon the circumstances giving rise to the concern.
Such penalties may result following:
However, DIAC officers may waive a bar on a sponsor.
This would be possible where Australia’s interests would be significantly affected, a significant trade opportunity would be lost, there would be detriment to the Australian community or damage to Australia’s relations with the Government of another country would result if the bar was not waived, or where new evidence comes to light that was not previously available.