14 September 2009 Legislation Change
From 14 September 2009, the Migration Legislation Amendment (Worker Protection) Act 2008 (the Worker Protection Act) will come into effect. The Worker Protection Act amends the Migration Act 1958 to enhance the framework for the sponsorship of non-citizens seeking entry to Australia for the purposes of work.
The reforms are designed to preserve the integrity of the Australian labour market and ensure that the working conditions of sponsored visa holders meet Australian standards. The Worker Protection Act lays the foundations for these reforms through four main measures:
- providing the structure for better defined and enforceable sponsorship obligations for employers;
- introduction of meaningful penalties for sponsors who are found to have failed to satisfy their sponsorship obligations;
- improved information sharing across all levels of government; and
- expanded powers to monitor and investigate possible non-compliance by sponsors.
The Worker Protection Act has also been amended by the Fair Work (State Referral and Consequential and Other Amendments) Act 2009 ('the Fair Work Act'). The amending provisions ensure the Worker Protection Act aligns with the Fair Work Act in relation to the powers that may be exercised by an inspector when monitoring and investigating possible non-compliance by sponsors. See 'Affected Legislation' below for more details.
The Worker Protection Act provides for the detail of the new sponsorship arrangements to be set out in the Migration Regulations 1994. A separate Notice of Legislative Change, entitled Regulation amendments to strengthen the integrity of the temporary skilled visa program, outlines the regulation amendments.
The following provisions of Migration Act 1958 are amended by the Worker Protection Act:
- Subsection 5(1) – definition of approved sponsor – substituted
- Subsection 5(1) – definitions of civil penalty provision; committee of management; eligible court; lawyer; penalty unit; personal information; work agreement – inserted
- Subdivision GA of Division 3 of Part 2 – repealed
- Subdivision A of Division 3A of Part 2 (heading) – substituted
- Subdivision B of Division 3A of Part 2 (heading) – repealed
- Sections 140B to 140D – substituted
- Subsection 140E(1) – minor amendments and insertion of note
- Subsection 140E(2) – substituted
- Subsection 140F(2) – substituted
- Subsection 140G(3) – substituted
- Section 140GA, 140GB and 140GC – inserted
- Sections 140H, 140I, 140J, 140K, 140L and 140M – substituted with
- Section 140H – Sponsorship obligations
- Section 140J – Amounts payable in relation to sponsorship obligations
- Section 140K – Sanctions for failing to satisfy sponsorship obligations
- Section 140L – Regulations may prescribe circumstances in which sponsor may be barred or sponsor’s approval cancelled
- Section 140M – Cancelling approval as a sponsor or barring a sponsor
- Subsections 140N(1) and (2) - amended
- Subsection 140N(3) – substituted
- Subsection 140O(1) – repealed
- Subsection 140O(2) – amended
- Subsection 140O(4) – substituted
- Subsection 140P(1) – amended
- Subsection 140P(2) – substituted
- Sections 140Q, 140R and 140S – substituted with
- Section 140Q – Civil penalty – failing to satisfy sponsorship obligation
- Section 140R – Infringement notices in respect of civil penalty provisions
- Section 140S – Liability to pay amounts
- Section 140SA – Interest up to judgement
- Section 140SB – Interest on judgement
- Section 140SC – Certain plaintiffs may choose small claims procedures in magistrates courts
- Section 140T(1) – amended
- Sections 140V and 140W – repealed
- Subdivision C of Division 3A of Part 2 – substituted with:
- Subdivision F – Inspectors
- Section 140V – Inspectors
- Section 140W – Identity cards
- Sections 140X – ZA (although these provisions amend relevant provisions of the Migration Act 1958, they have since been amended by the Fair Work Act – see below for more details)
- Subdivision G – Application of Division to partnerships and unincorporated associations
- Section 140ZB – Partnerships – sponsorship rights and obligations
- Section 140ZC – Partnerships – offences and civil penalties
- Section 140ZD – Partnership ceases to exist
- Section 140ZE – Unincorporated associations – sponsorship rights and obligations
- Section 140ZF – Unincorporated associations – offences and civil penalties
- Section 140ZG - Unincorporated association ceases to exist
- Subdivision H – Miscellaneous
- Section 140ZH – Disclosure of personal information by Minister
- Section 140ZI – Disclosure of personal information to Minister
- Section 140ZJ – Unclaimed money
- Section 140ZK – Other regulation making powers not limited
- Subsection 245L(2)(note 1), subsection 320(3), subsection 321(1), subsection 336FB(1), paragraph 336FC(2)(e), subsection 336FD(1) and subsection 488B(1) – omit “(as defined in the Privacy Act 1988)”
- Section 275 and 486K – definition of lawyer – repealed
- Subsection 321A(4), 332F(4) and 332G(5) – definition of personal information – repealed
- Part 8D – Civil penalties – inserted, including:
- Section 486R – Person may be ordered to pay pecuniary penalty for contravening civil penalty provision
- Section 486S – Persons involved in contravening civil penalty provision
- Section 486T – Recovery of pecuniary penalty
- Section 486U – Gathering information for application for pecuniary penalty
- Section 486V – Civil proceedings after criminal proceedings
- Section 486W – Criminal proceedings during civil proceedings
- Section 486X - Criminal proceedings after civil proceedings
- Section 486Y – Evidence given in proceedings for civil penalty not admissible in criminal proceedings
- Section 486Z – Civil double jeopardy
- Section 486ZA – Multiple contraventions of civil penalty provisions
- other minor and technical amendments.
The following provisions of the Tax Administration Act 1953 are amended by the Worker Protection Act:
- Section 3ED – Providing tax information relevant to sponsorship under the Migration Act 1958 – inserted
The following provisions of the Worker Protection Act are amended by the Fair Work Act:
- Section 140X – Purpose for which powers of inspectors may be exercised – substituted
- Section 140XA – When powers of inspectors may be exercised – substituted
- Section 140XB – Power of inspectors to enter premises or places – substituted
- Section 140XC – Powers of inspectors while on premises or at a place – substituted
- Section 140XD – Persons assisting inspectors – substituted
- Section 140XE – Power to ask for person’s name and address - substituted
- Section 140XF – Power to require persons to produce records or documents – substituted
- Section 140XG – Self-incrimination – substituted
- Section 140XH – Certain records and documents are inadmissible – substituted
- Section 140XI – Power to keep records or documents – substituted
- Section 140XJ – Disclosure of information by the Secretary – substituted.
The Worker Protection Act:
- repeals provisions providing for sponsorship undertakings to be made and replaces them with provisions allowing for the creation of sponsorship obligations that will automatically apply to an approved sponsor;
- introduces civil penalty provisions for failure to satisfy a sponsorship obligation, and a supporting civil penalty framework which provides that in addition to ordering payment of a pecuniary civil penalty, a court may order payment of a debt owed to a person in relation to a sponsorship obligation. It also provides for the issuing of infringement notices in lieu of a pecuniary civil penalty for failure to satisfy a sponsorship obligation;
- maintains and enhances the existing sanction and enforcement tools in relation to sponsorship which include:
- barring a sponsor from sponsoring more people, or making further applications for approval as a sponsor;
- cancelling a person’s approval as a sponsor;
- requiring the taking or enforcing of a security bond;
- providing that a person to whom a debt is owed in relation to a sponsorship obligation may apply to a court to recover that amount.
- establishes a monitoring regime to promote compliance with sponsorship obligations which provides for the appointment of inspectors with powers to enter premises and require documents or things in relation to a sponsor’s compliance with the sponsorship obligations and other requirements;
- ensures that personal information regarding sponsored visa holders or former sponsored visa holders and approved sponsors or former approved sponsors can be disclosed to the other party or to prescribed agencies of the Commonwealth or of a State or Territory;
- amends the Tax Administration Act 1953 (the TAA) to allow the Commissioner of Taxation to disclose certain information to an officer of the Department of Immigration and Citizenship. The information must be relevant to the exercise of the Minister’s powers under Division 3A of Part 2 of the Migration Act;
- provides that a party to an agreement entered into with the Minister to facilitate the entry to Australia of non-citizens for the purposes of work, is subject to sponsorship obligations, civil penalties for breach of sponsorship obligations, and the new monitoring and information gathering powers;
- ensures that where a partnership or unincorporated association is an approved sponsor, it is the persons who are the partners or members of the association’s committee of management at any given time who are required to satisfy the sponsorship obligations; and
- includes transitional provisions clarifying that the new sponsorship obligations will apply to certain existing approved sponsors of prescribed kinds of visas on commencement. Where the new obligations are imposed, any previous sponsorship undertakings that related to the sponsorship for that visa will cease to be enforceable.
Existing standard business sponsors (of Subclass 457 visa holders)
Existing standard business sponsors or former standard business sponsors who remain bound by an undertaking will be required to comply with the new enforceable sponsorship framework, i.e. they will be subject to sponsorship obligations from the date of commencement of the Worker Protection Act and will no longer be subject to existing undertakings.
If, however, before the Worker Protection Act commences, a standard business sponsor breaches an existing undertaking, the administrative sanction provisions (power to cancel approval as a sponsor or bar a sponsor) of the Worker Protection Act will apply as if the standard business sponsor has breached an obligation under the new enforceable sponsorship framework.
Similarly, if, before the Worker Protection Act commences, a standard business sponsor is bound by an existing undertaking to pay a debt, and proceedings for recovery of the debt have not been brought in a court, section 140S of the Worker Protection Act – liability to pay amounts – will apply as if the standard business sponsor is required to pay the debt under a sponsorship obligation.
Existing standard business sponsors will also be subject to all the other new provisions introduced by the Worker Protection Act, such as the monitoring powers and the information disclosure provisions.
The terms of approval is the only aspect of the current sponsorship framework which will be preserved for existing standard business sponsors. The terms of approval of existing standard business sponsors provide for a temporal limit (2 years) or a maximum number of nominations permitted under the sponsorship. After these terms have expired existing sponsors will have to reapply for approval as a sponsor under the new framework.
Existing Subclass 470 visa sponsors (approved professional development sponsors)
The operation of the current sponsorship framework will continue in relation to existing approved professional development sponsors, until the term of their sponsorship approval ceases. This means that the obligations, monitoring and investigation powers, information disclosure provisions and any other provisions contained in the Worker Protection Act will not apply to them on commencement.
The new enforceable sponsorship framework will only apply to persons who become approved as professional development sponsors after commencement of the Worker Protection Act.
All applications for approval as a sponsor under section 140E which were made but not finally determined before the Worker Protection Act commences, will be treated as if they had been made on the day of commencement under the new section 140E as amended by the Worker Protection Act, i.e. they will be decided in accordance with any new criteria prescribed under the new section 140E.
The new provisions relating to interest that can be awarded on debts by a court only apply to proceedings that begin after commencement of the Worker Protection Act.
Relevant policy guidelines have been amended to reflect these changes.