Australian employers of overseas workers are being reminded that they must ensure their temporary sponsored workers have the same terms and conditions (pay) for the same job in the same workplace as Australian workers.
‘There must be no exploitation and there are no excuses for underpaying overseas workers’ says a spokesman for the Department of Immigration and Citizenship (DIAC) in a recent entry on their Migration Blog:
During the 2011/12 financial year, the blog entry confirms that DIAC conducted more than 1,000 site visits to sponsors, and sanctioned 125 of them. It also issued 49 infringement notices for failure of the obligations, totaling $219 120.
In addition to applying administrative sanctions and issuing infringements, DIAC has become increasingly active in progressing cases to civil litigation.
The blog entry recites that last month a Victorian based sponsor, Sahan Enterprises Pty Ltd, became the first sponsor to face the Federal Magistrates Court under the Migration Act 1958. The court found failures of two sponsorship obligations: the obligation to pay equivalent terms and conditions, and the obligation to keep appropriate pay records.
The consequence of these failures was that the court issued a pecuniary penalty of $35,000 plus almost $11,000 in court costs. In handing down the decision, the magistrate placed weight upon the vulnerability of the sponsored person, and noted that as a group, sponsored workers are especially vulnerable.
‘Now that this precedent has been set, the department will continue to promote the message to sponsors to comply with their sponsorship obligations or, potentially, face the pecuniary consequences,’ the entry adds.
‘While the overwhelming majority of sponsors are compliant, the department remains committed to strengthening the integrity of Australia’s skilled visa programmes by identifying and penalising employers of sponsored workers who fail to comply with their obligations. To this end, we will continue to focus on campaign based monitoring in the coming months,’ it concludes.
Sourced from DIAC Migration Blog
Whilst in reality, the chances of being monitored remain quite low – depending upon the industry – given the volume of new sponsors and 457 visas being issued and an finite number of DIAC officers, it is recommended that employers seek professional advice to avoid any nasty implications if they are in monitored.
More importantly, where an employer wishes to support an employee’s application for permanent residence as a continuation of employment, the changes on the 1 July 2012, have moved the onus of compliance with sponsors obligations including the training commitment for the life of the sponsorship and payment of market salary to its workers, directly to employer.
This change of emphasis however does nothing to control errant employers who do not support their employees for permanent residence and who need to be constantly monitored to ensure compliance!