
Issue No 86		02 March 2001

LaborNET	Ask Neale	Tool of the Week

Legal

Workers Without Rights

Mark Morey outlines the legal status and (lack of) rights for foreigners in Australia on working visas.


	Labor Council's Mark Morey

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With the discovery of Indian workers being paid a pittance for their work in Australia, what are the conditions under which they entered the country and what level of supervision exists for these workers?

Australia's temporary residence program is designed to allow overseas people to come to Australia for specific purposes which result in some benefit to Australia. The program consists of three streams, economic; social/cultural; and international relations.

During 1998-99, more than 135 000 people were issued temporary resident visas. These included:

� 37 032 visas in the skilled visa classes (economic);

� 20 049 in the social and cultural classes (social/cultural); and

� 79 159 in the international relations classes (international relations).

Temporary Residence

The Temporary Residence category includes temporary entry for stays of up to four years in a wide range of categories including students, skilled employees, people establishing businesses and working holiday makers, with smaller numbers in categories such as sportspeople, media and film staff, entertainers, religious workers, retirees and occupational trainees. Temporary residents are required to pay taxes but do not have access to social welfare benefits or national public health cover.

Briefly, this is how it works:

1. The employer tries to find a suitable highly skilled employee locally. The attempt is unsuccessful and this fact is able to be proved.

2. The employer finds a suitable highly skilled overseas employee either in Australia or overseas.

3. The employer lodges, with a Business Centre of the Department of Immigration and Multicultural Affairs (DIMA), an Employer Nomination for the position to be filled.

4. The DIMA office in Australia assesses the employer and the position.

� To be approved as a sponsor, the employer must demonstrate that the business:

1. is a lawfully and actively operating

2. is the direct employer of the temporary business entrant

3. is able to meet sponsorship undertakings

4. will benefit Australia through the employment of a temporary resident

5. will advance skills through technology training

6. agrees to abide by the sponsorship undertakings

Under the sponsorship undertakings the employer agrees to:

� meet financial obligations to the Commonwealth (eligible termination payments, Fringe Benefits Tax, superannuation contributions and deduction of tax instalments);

� comply with Australian industrial relations laws, Australian levels of remuneration and conditions of employment;

� accept financial responsibility, directly or through acceptable medical insurance arrangements, for all medical and hospital costs that sponsored persons and their dependants may incur in Australia

Sponsorship and/or the visas of any sponsored temporary business entrants may be cancelled if a sponsor:

� fails to provide information requested as part of a monitoring exercise

� does not fulfil sponsorship obligations

� provides incorrect information in the application or at a later stage

5. During this assessment the nomination may be referred to the Department of Employment, Workplace Relations and Small Business for comment on:

� the training record of the employer;

� the skilled nature of the position;

� the salary level of the position; and

� the attempts the employer has made to fill the position locally.

6. On approval of the nomination, the applicant is assessed either overseas or in Australia, depending on their location. The applicant must:

� have skills suitable to the position which the employer has nominated;

� meet a legal definition of a highly skilled person and be less than 45 years of age;

� have vocational English;

� meet or be able to meet and registration, licensing or membership requirements that may apply for that position in Australia.

7. If the appointment is exceptional, it requires a person over 45 years of age, or a person with less than vocational level of English, these requirements can be waived.

8. The applicant and the applicant's spouse and children must meet migration requirements regarding health and character.

9. If all legislative criteria are met, a migration visa will be granted if the applicant is overseas or a permanent residence visa will be granted if the applicant is in Australia

Labour Agreements

A Labour Agreement is a formal arrangement negotiated between the Commonwealth Government (represented by the Department of Immigration and Multicultural Affairs and the Department of Employment, Workplace Relations and Small Business), employers (eg industries, employer organisations and specific employers), and optionally other interested parties (eg unions and professional associations). Labour Agreements are designed to ensure that overseas recruitment is not contrary to the improvement of employment and training opportunities for Australians. To this end, Labour Agreements normally require employers or industry bodies to make commitments to the employment, education, training and career path progression of Australians prior to entering into an agreement.

All parties must agree that the overseas recruitment of a specified number of workers for defined vacancies is in response to identified or likely labour market (or skill) shortages.

Labour Agreements play a useful role in meeting identifiable skill shortages, which in turn has considerable economic benefit for both individual businesses and the Australian economy overall.

In general, Labour Agreements ensure that:

� all relevant stakeholders are included in negotiations and, where possible, are signatories to any agreements;

� all labour market sensitivities are resolved between the interested parties;

� provision is made for the ongoing recruitment, training and career path of Australians; and

� monitoring of the Agreement takes place.

It was interesting while researching this issue that one accompanying documents "Employing Overseas Workers - Doing The Right Thing" was part of a Federal Government campaign that provided employers with "an easy guide to help employers check that prospective employees are entitled to work in Australia". The irony of this campaign is that it does not have an accompanying document entitled "What Do I Do When I'm Being Mercilessly Exploited?"

The Federal Government's helpful business guide states:

"This kit has been designed to help you make sure that you only employ people who are entitled to work in Australia. Illegal workers take jobs away from people who are legally entitled to work. Not employing illegal workers saves your time and money". [Page 2]

Of course this is true unless you are able to use legal processes to bring workers into the country and pay them nothing as in this case. It appears that once workers enter Australia legally through the Department of Immigration and Multicultural Affairs (DIMA) the Department has little or no regard for what happens to those people once they are the responsibility of their sponsor.

What It All Means

The plight of the Indian workers has exposed DIMA and the Federal Government's failure to ensure that the rights of Temporary Business Visa workers are protected by systems that monitor and identify unscrupulous employers. And the Minister's response to questions of ensuring employers adhere to their side of the bargain - its up to the state industrial authorities.

As with all issues to do with immigration Minister Ruddock's standard response is that of a four year old - if I put my hands over my eyes and can see it then it isn't happening. This is a weak government with a poor track record on human and industrial rights why should we really expect anything better from them?

Mark Morey is the Labor Council's Productive Diversity Officer

View entire issue - print all of the articles!

Issue 86 contents

Interview: Master of Opposition
Over the past five years, John Faulkner has turned the Senates Estimates structure into his own House of Pain. He explains the art of Opposition.

Politics: Beazley the Bridge Builder?
As the Howard Government flounders, Brett Evans looks at the challenges Kim Beazley faces as his hour of destiny approaches.

Unions: Lashing & Loathing at Patricks
Three years since one of the Howard Government�s most infamous episodes, the Waterfront War, Zoe Reynolds discovers how casuals are now doing the doing the dirty work on the docks.

Legal: Workers Without Rights
Mark Morey outlines the legal status and (lack of) rights for foreigners in Australia on working visas.

International: Dispatch from the Dispossessed
Mahendra Chaudhry, Leader of the People's Coalition and the Fiji Labour Party comments on this week�s court decision.

Economics: Business Power and Mobility
The US election season makes it patently clear how Big Business is able to transform its financial resources into political power via campaigncontributions.

History: The Spoilers and the Split
The Movement, Groupers, the DLP and The Doc. All have been blamed in various ways for the ALP split in the 1950s, ensuring the ALP was kept out of federal government until 1972. Can One Nation return the favour?

Review: The New Hard Politics
Dennis Glover argues that policy has taken over from spin as the political battleground of the new century.

Satire: Bradman Latest: Family In Dramatic Court Action
The family of the late Sir Donald Bradman yesterday sought a restraining order against Prime Minister John Howard after it became apparent that he wants to be involved in every single detail of the The Don's funeral.

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