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So, you’ve heard about Gina Rinehart’s deal to bring 1715 temporary foreign construction workers to her Roy Hill mine, but what do you know about your own ability to employ foreign workers? You may be surprised to learn that you don’t need to be a mining magnate to access highly skilled foreign workers who are willing to live and work in Australia.

To be clear, Gina Rinehart’s enterprise migration deal is special. Enterprise Migration Agreements are specifically for large projects in the resource sector that require more than $2 billion capital investment and 1500 workers. They come with stringent requirements for training Australian workers and the foreign workers are protected under the Worker Protection Act 2009. Outside these mega projects businesses must go down the path of employer sponsored visas to employ foreign workers.

Until 30 June 2012 the two main types of employer sponsored visas are Long Stay Temporary Business visas (457) and Employer Nominated Scheme (EMS) visas (121 and 856).  In addition there are Regional Skilled Migration schemes for regional employers. These schemes will continue after 1 July 2012 but with some changes to visa classes for permanent migration.

A 457 visa can operate for up to 4 years during which time the employee must work in the nominated occupation for the sponsor.  EMS visas allow an employer to  permanently sponsor a foreign worker provided they are offering full-time work in a relevant occupation for at least 3 years. It is possible to convert a 457 visa to a permanent EMS visa with a formal skills assessment or after two years continuous work.

If you choose to sponsor a temporary foreign worker your business must meet the training eligibility benchmark. This means providing evidence that an amount equivalent to 1 percent of your total payroll is spent on training your employees who are Australian citizens or permanent residents. Alternatively you can pay an amount equivalent to 2 percent of total payroll to an industry training fund.

You must also meet strict criteria throughout the sponsorship including:

  • paying equivalent terms and conditions of employment
  • paying travel costs to enable the sponsored persons to leave Australia if requested
  • paying costs incurred by the Commonwealth to locate and remove an unlawful non-citizen
  • record keeping and provision of information to Immigration
  • not allowing the sponsored person to work in another occupation
  • not recovering costs (including migration agent fees and recruitment)

To be eligible for permanent sponsorship an employer must have a training strategy for existing Australian employees, demonstrate a legitimate need to sponsor a foreign worker and ensure that the position being filled is a highly skilled occupation on the Employer Nomination Scheme Occupation List (ENSOL).  The ongoing obligations for sponsoring a permanent worker are equivalent to employing an Australian citizen.

The application process for 457 visas follows these stages:

Step 1 the employer applies to be a sponsor
Step 2 the employer nominates a position
Step 3 the employee applies for a visa

The application process for the employer nominated scheme is only two steps. First the employer nominates a position and second the employee applies for a visa.

Anybody concerned about Union claims that foreign workers are stealing jobs from Australian citizens should be reminded that the foreign worker visa program has built in protections for Australian jobs including training and development to address skills gaps and making genuine attempts to fill positions locally before looking offshore.

Foreign workers are also protected from exploitation by the Worker Protection Act 2008 with heavy penalties for non compliance by employers.

Employing foreign workers is a realistic option for most Australian businesses, not just the mining magnates. The process may not be simple but with a little expert support it is certainly viable and well worth considering.

There are significant changes to skilled migration from 1 July 2012. Now is a great time to look at your options or to review your existing arrangements.

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Ben Thompson

Ben Thompson

Ben is the CEO of Employment Innovations (EI), which holds over two decades experience helping Australian businesses navigate the legal and administrative challenges of being an employer.

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