DIAC lacks teeth for 457 probe

Australia’s immigration department does not have the authority under current legislation to investigate cases of 457 visa abuse in the technology sector, iTnews can reveal.

The temporary skilled migrant 457 program has been in the spotlight in recent days after Prime Minister Julia Gillard fingered the technology sector as one of the worst abusers of the program.

Late last week the Prime Minister said IT companies were the largest users of temporary workers and were using the program as “a substitute for spreading important economic opportunity to Australian working people’’.

In the IT industry alone, 5800 temporary workers were brought in over the past seven months, compared to 4500 IT university graduations from undergraduates in 2011. Temporary overseas worker numbers grew 20 percent in the last year, compared to one percent employment growth. 

“It is just not acceptable that information technology jobs, the quintessential jobs of the future, the very opportunities being created by the digital economy, precisely where the big picture is for our kids, should be such a big area of imported skills,” Gillard said last week.

The department responsible for the program, Australia's Department of Immigration and Citizenship, has confirmed it does not have the power to investigate any instances of alleged abuse of the program.

“The department’s capacity to intervene in these circumstance is limited under the current legislative settings,” a department spokesperson told iTnews.

“Further, while the practice of engaging overseas workers ahead of Australian workers goes against the intent of the 457 program, it is not unlawful and as such the identification of employers engaging in this practice can not be stated publicly.”

Changes on the way

The department must wait until July 1 2013 before the introduction of new measures to strengthen its ability to “detect, act and deter behaviour which is inconsistent with the intent of the 457 program" come into play.

The spokesman said the department had noted strong growth in the program over the last 12 months, with several companies using it to their advantage.

“While most employees are using the subclass 457 program appropriately, the department is aware of certain employers sourcing their skilled labour from offshore in preference to recruiting or training locally,” a spokesperson said.

“This practice is at odds with the overarching intent of acting as a supplement to rather than a substitute for the Australian labour market."

The new measures will close loopholes in current legislation and give the department enhanced regulatory powers to ensure the working conditions of sponsored visa holders meet Australian standards, and local workers aren’t exploited by the program.

The measures also include:

• The introduction of a genuineness criteria under which a nominated worker may be refused a visa,
• An increase in market salary exemption from $180,000 to $250,000 to cut out undercutting of local workers,
• The removal of English language exemptions for certain position to ensure visa workers wanting to become permanent citizens won’t be disadvantaged, and
•  Clarification that 457 workers may not be on-hired to an unrelated entity unless sponsored.

The measures will also strengthen the sponsor’s obligation to ensure 457 worker conditions meet local standards, with a view to disincentivise sponsors to misuse the program.

Currently, the department can ban participating companies from sponsoring and hiring 457 workers if obligations aren’t met. Sponsors face fines of up to $33,000 for a body corporate, or $6600 for an individual, and infringement notices of up to $6600 for a company and $1320 for an individual per failure to meet obligations. 

The changes will be introduced on July 1, 2013.

Early this week the Government announced the Fair Work Ombudsman would be given more powers to deal with rogue employers misusing the 457 program.

The FWO has over 300 inspectors monitoring compliance and investigating complaints. It will now be able to monitor specific aspect of 457 visa conditions including that holders are being paid at the market rate specifed in their approved visa, and that the job being performed matches that specified in the approved visa.