Discriminatory Employment Practices Makes An Employer Ineligible To Be A Sponsor
It will become much more difficult to have a workforce in the one employer dominated by subclass 457 visa or student visa holders.
The Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016, F2016L00523 introduced a number of changes to the 457 programme. It is about encouraging employing ‘local labour’. It could mean that an employer employs only people on a subclass 457 visa or students visas will be considered as having a ‘discriminatory recruitment practice’.
What does ‘local labour’ mean? What if an employer engaged only those of Indian origin but all of them were permanent residents – are those people ‘local labour’. The writer’s opinion is the term ‘local labour’ includes all persons who are permanent residents or Australian citizens.
But what of a repeat subclass 457 visa holder? Say an employer engages an existing 457 visa holder, is that local labour or nominating a subclass 457 visa holder for a second subclass 457 visa? It si clearly arguable that both such categories of people are local labour.
Here is what the amendments say :
The term “discriminatory recruitment practice” was added to the Reg 2.57 and is defined as follows:
Reg 2.57
discriminatory recruitment practice means a recruitment practice that directly or indirectly discriminates against a person based on the immigration status or citizenship of the person, other than a practice engaged in to comply with a Commonwealth, State or Territory law.
Amendments were also made to the criteria for approval as a Standard Business Sponsor (‘SBS’) and the criteria for variation of the terms of a SBS approval, requiring SBS applicants to declare that they will not engage in discriminatory recruitment practices:
Reg 2.59
(f) if the applicant is lawfully operating a business in Australia:
(i) the applicant has attested, in writing, that the applicant has a strong record of, or a demonstrated commitment to, employing local labour; and
(ii) the applicant has declared, in writing, that the applicant will not engage in discriminatory recruitment practices; and
Reg 2.68
(g) if the applicant is lawfully operating a business in Australia:
(i) the applicant has attested, in writing, that the applicant has a strong record of, or a demonstrated commitment to, employing local labour; and
(ii) the applicant has declared, in writing, that the applicant will not engage in discriminatory recruitment practices; and
In a circular to the industry on 18 April 2016 in the ‘457 Agent News Mini Edition’ Cathy Milfull, Director
457 and BV ABC Management Section Temporary Visa Programme Branch stated :
“The new obligation seeks to address a community concern that some employers may be relying on the 457 programme to employ foreign workers without having regard to the availability of local labour.”
Sponsors should keep documents on hand that demonstrate how subclass 457 visa holders were recruited and that this process did not discriminate based on citizenship or visa status.
The 457 Agent News also stated :
“The new obligation is not engaged if discrimination in recruitment decisions is evident on other grounds such as sex, gender, race, social group or pregnancy.
These issues are outside the remit of the Department and should be directed to other relevant agencies, such as the Fair Work Ombudsman or the Australian Human Rights Commission.”
One assumes therefore that Immigration is not directly concerned with say an all Indian workforce, but only if the workforce consisted of a disproportionate number of subclass 457 or student visa holders. But if an employer’s records showed that no suitable permanent residents or Australian citizens applied for the position then there would be no ‘discriminatory recruitment practice’. It does raise the issue that it is not the function of Immigration to micro manage an employer’s business. An employer may have a host of legitimate reasons to employ a particular set of subclass 457 visa applicants even if some of those reasons were subjective. As Ms Milfull states employers could counter allegations of discriminatory practice by showing how the subclass 457 visa applicants were selected.
Interestingly if an employer did employ only persons of the one ethnic origin an unsuccessful job applicant could claim race discrimination.
The above amendments apply from 19 April 2016 applying to all future sponsorships applicants and any sponsorship applications not yet decided (similarly any variation for sponsorship).
In addition, a new sponsorship obligation has also been introduced:
2.87C Obligation not to engage in discriminatory recruitment practices
(1) This regulation applies to a person who:
(a) is or was a standard business sponsor; and
(b) is lawfully operating a business in Australia.
(2) The person must not engage in, or have engaged in, discriminatory recruitment practices during the period of the person’s approval as a sponsor.
(3) The obligation referred to in subregulation (2):
(a) starts to apply on the day the person is, or was, approved as a standard business sponsor; and
(b) ends when the person ceases, or ceased, to be a standard business sponsor.
The new sponsorship obligation came into effect on 19 April 2016 and applies in relation to discriminatory recruitment practices engaged in or after 19 April 2016 by a Standard Business Sponsor or a former Standard Business Sponsor.
The effect of Reg 2.87C is that it could form the basis of refusing a nomination in the Employer Nomination Scheme Regime, ie Reg 5.19(3) (g)
either:
(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;
The other effect of Reg 2.87C is that a failure to meet that obligation could trigger a cancelling of a sponsoring or even barring an employer from being a sponsor.
Here is how that part of the regime works :
Reg 2.89 Failure to satisfy sponsorship obligation
(3) For paragraph 140L(1)(b) of the Act, the criteria that the Minister must take into account in determining what action (if any) to take under section 140M of the Act in relation to the circumstance mentioned in subregulation (2) are:
(a) the past and present conduct of the person in relation to Immigration; and
(b) the number of occasions on which the person has failed to satisfy the sponsorship obligation; and
(c) the nature and severity of the circumstances relating to the failure to satisfy the sponsorship obligation, including the period of time over which the failure has occurred; and
(d) the period of time over which the person has been an approved sponsor; and
(e) whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person; and
(f) whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent; and
(g) whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure; and
(h) the steps (if any) the person has taken to rectify the failure to satisfy the sponsorship obligation, including whether the steps were taken at the request of Immigration or otherwise; and
(i) the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation; and
(j) the number of other sponsorship obligations that the person has failed to satisfy, and the number of occasions on which the person has failed to satisfy other sponsorship obligations; and
(k) any other relevant factors.