Same-sex marriage and skilled migration visas
Some of the claims in a recent mainstream media report about same-sex marriage and skilled migration were wrong. Brian Greig’s Sydney Morning Herald report ‘Banning gay marriage impacts on skilled migration’ (18 May 2013) claimed that by not recognising same-sex marriage, Australia is causing skilled workers from overseas to bypass Australia in favour of countries that recognise their marriage. Let’s address some of the issues raised and correct some inaccuracies.
In the article, the author says little has changed since 2005, a time when skilled visa applicants with a same-sex partner could not include them in their application.
This is incorrect. In 2009 changes to Commonwealth law removed discrimination against same-sex couples and their children. As part of these changes, new definitions of ‘spouse’ and ‘de facto’ partner were introduced into the Migration Act 1958 (the Migration Act) such that same-sex couples were given the same entitlements as heterosexual couples. This paved the way for all visa applicants to include their same-sex partners and allowed those partners the same work rights as ‘spouses’. It’s a shame the report got this so wrong.
While the article is correct to say the status of ‘de facto’ for same-sex couples is not automatic this is misleading as no relationship status is automatic for migration purposes. All couples — married or de facto — are required to demonstrate their relationship is genuine and continuing, that they have a mutual commitment to a shared life and that they live together on a permanent basis.
The claim that couples must spend ‘a two year period of co-habitation on our shores’ is also misleading. Permanent visas and some temporary visas generally require de facto couples to demonstrate their relationship has existed for at least 12 months before they lodge their visa application. There is an exemption to this requirement for de facto couples who have registered their relationship under an Australian state or territory scheme, regardless of their sexual orientation.
It is true that a same-sex marriage that is legally solemnised overseas is not recognised for migration purposes. This is because the Migration Act mirrors the Marriage Act 1961 (the Marriage Act) which means that only marriages valid under the Marriage Act can be recognised when assessing visa applications. While their same-sex marriage is not recognised, couples can still be recognised and assessed under the de facto provisions. The fact that a marriage occurred overseas can be taken into account in this assessment.
While Australia’s migration law does not currently recognise a same-sex marriage solemnised overseas, it is taken to be a de facto relationship which hence gives these people the same entitlements as heterosexual married or de facto couples.
Interested in learning more about the 457 program?
We have developed a guide that provides an overview of the 457 program.
The 457 program allows employers to hire skilled overseas workers where experienced Australian workers are not available. It’s the simplest and fastest option that helps businesses deal with skill shortages.
If you are interested in learning more about the 457 program, including how to sponsor and nominate an overseas worker, take a look at our Guide to the 457 program.
The benefits of submitting an expression of interest on 1 July
As we get closer to the launch of SkillSelect on 1 July, we would like to point out the benefits of being ready to submit an expression of interest (EOI).
Benefits:
- It’s free to submit an EOI!
- You don’t have to meet the pass mark on the points test to submit an EOI. However you won’t receive an invitation for the points based visas unless you meet the pass mark. You can build upon your EOI to achieve the desired pass mark for points based skilled migration or you can be considered by employers for employer sponsorship.
- You can update your profile in SkillSelect at any time, and have the ability to continually build on your EOI as your credentials and experience grow.
- Your details will be available to employers who can search for and contact you to discuss employment opportunities. This may increase your opportunity to receive sponsorship.
- You can select interest in more than one visa subclass in the same EOI. This means you can be considered for invitation or sponsorship for any of the visas in which you are interested —all from the one EOI.
- SkillSelect will provide you with feedback on your visa eligibility based on the information you provide on your EOI—giving you an indication of the visas for which you may meet the threshold criteria.
- Submitting EOIs and visa applications is an online process, saving you time as you can gain access to your SkillSelect account 24/7 from anywhere in the world.
- If you are invited to apply, visa processing will be more responsive, as the total number of invitations and applications will be controlled and matched to the migration program.
Where to start
- Visit www.skillselect.gov.au
- Find out what visas best suit you
- Find out what you need to have prepared for these visas
- Gather all your information and evidence
- Be ready on 1 July to submit your EOI
For more information visit www.skillselect.gov.au or read our previous blog posts at http://migrationblog.immi.gov.au/category/skillselect/
Houston Skills Australia Needs event—more than 650 jobs on offer
American residents with skills and experience in the oil and gas, mining and construction sectors will be able to meet Australian employers with more than 650 jobs on offer at the Skills Australia Needs job fair in Houston, Texas on May 19-20.
Registration for this free event is through the department’s website and they close on May 11.
Skills Australia Needs events offer invited skilled workers the chance to talk to Australian employers and recruiters about jobs available ‘Down Under’ face-to-face.
As well as potential employers, Australian immigration officers will be on hand to talk to participants about skilled visa options to live and work in Australia, either on a temporary or permanent basis, as well as Australia’s new skilled worker registration system—SkillSelect.
Invitees can also meet representatives from several other Australian organisations and government agencies, including:
• Australia’s state and territory governments will talk about what it’s like to live in Australia, and state sponsored visas
• Trades Recognition Australia (TRA) will provide advice about the process for having your skills recognised and the new streamlined arrangements for licensing, which mean workers can start a job on their first day in Australia
• VETASSESS, a US trades recognition agency approved by the TRA to assess skilled workers in the electrical and plumbing trades will provide information about their services, and
• Future Skills International, approved by the TRA to assess electricians will be on hand to answer questions about their services.
This event is the latest in a series that the Australian Government has staged in several countries for many years. The job fair will help Australian employers and state governments fill critical skill shortages in areas of occupational demand in Australia.
Details including the full list of exhibitors, jobs on offer and how to register are available at www.immi.gov.au/skillevents/skilled-workers.htm
Changes to semi-skilled occupation eligibility
We have been providing regular posts about the employer-sponsored program reforms that will be introduced on 1 July. A key element of these reforms is that Skill Level 4 occupations or ‘semi-skilled’ occupations will no longer be eligible for the regional sponsored migration scheme under ‘exceptional circumstances’.
Employers who need specialised semi-skilled workers from overseas will instead need to negotiate a labour agreement.
Labour agreements provide a robust integrity framework for the entry of semi-skilled workers who are likely to be more vulnerable than highly-educated, highly-paid and highly-skilled workers.
Where this change affects a number of employers in the same industry with similar specialised semi-skilled needs, the department can look at developing template agreements for all businesses in that industry or sector; for example, specialised animal attendants or machinery operators in the agricultural sector.
More information about labour agreements is available on the department’s website.
New visa subclasses announced on the SkillSelect website.
We have just published information about the new visa subclasses that will be introduced under SkillSelect on 1 July 2012. You should visit the SkillSelect website to find out the latest information.
We hope this information will be useful if you are thinking about migrating to Australia and researching your visa options. Further updates on the legislative framework for the visa subclasses will become available in June 2012.
Details on the outcome of the review of the business skills program will be published when they are available. We will provide you with this information as soon we can. Keep checking this blog and the SkillSelect website for updates.
You will notice that the SkillSelect website looks quite different to the departmental website. The new format aims to make web content easy to access and read for all our clients. We would really appreciate your feedback on the new format, so please let us know what you think in the comments.
To help us ensure that we are providing you with the information you want, we would appreciate if you can answer a simple question below in our poll.
Why did you visit the Migration Blog today?
- 1. I’m an intending migrant, researching my options. (50%, 70 Votes)
- 2. I’m a visa holder who wants to keep up to date with current migration policy. (22%, 30 Votes)
- 3. I’m an employer looking for skilled workers. (2%, 3 Votes)
- 4. I’m an advisor to people seeking to migrate to Australia. (7%, 10 Votes)
- 5. I’m an Australian Government officer. (8%, 11 Votes)
- 6. I’m a member of the public interested in migration policy. (6%, 9 Votes)
- 7. I don’t fit into any of the above categories. (5%, 6 Votes)
Total Voters: 139
Loading ...February labour agreement termination a first
The department recently terminated a labour agreement with a company that was found to be in breach of its obligations by employing workers on a casual basis, underpaying them and providing false and misleading information to the department. The breaches were uncovered during a monitoring exercise by the department. The termination means that the company can no longer employ overseas workers.
Labour agreements are formal arrangements that a number of Australian employers have with the Australian Government to bring skilled and highly specialised workers toAustraliato fill critical vacancies where suitably qualified Australian workers can’t be found to do the job. Overseas workers must be employed full time and on the same salary and conditions as Australians doing the same work at the same location, which protects overseas workers from exploitation and maintains wages and conditions for Australians.
One of the main types of labour agreement is the on-hire template agreement that allows recruitment companies to sponsor highly skilled overseas workers on 457 visas and then place them with other businesses. These workers are often critical in filling the skills shortages being driven by very strong employment growth in the resources sector.
Under the template on-hire labour agreement, the recruitment company must still meet their sponsorship obligations to their sponsored workers, even though they are on-hired to another company.
While the vast majority of sponsors do the right thing, the department will continue to follow any leads that suggest misuse of our visa programs or exploitation of overseas workers. In this case, visa holders affected by the termination have been given a reasonable amount of time to find alternative employment with other approved sponsors.
Attracting overseas skilled workers for the Mining and Resources Sector
SkillSelect presentation at the London Expo
We’re all familiar with media highlighting skills shortages, particularly in the resources sector where there are not enough Australian workers available. A blog post by Tom (June 7 last year) explained how the introduction of Enterprise Migration Agreements would assist employers to secure overseas skilled workers in order to support this important sector of the Australian economy.
Building on this, from July 1 the government will introduce a new method for selecting skilled migrants, called SkillSelect to further help employers seeking skilled workers.
SkillSelect will provide registered employers with access to high quality, pre-screened migrants interested in sponsorship under the subclass 457, ENS and RSMS programs.
It is an efficient and easy to use system that will record intending migrants’ qualifications, work experience, the visas in which they are interested and whether they are willing to work in regionalAustralia. They will have evidence of their English language ability and most will have already had their skills assessed. SkillSelect will bring potential overseas workers to employers and facilitate contact between the employer and intending migrants. In addition, by matching the number of migration program places to the number of visa applications SkillSelect will streamline processing times and speed up the migration program’s response to business needs.
At a recent Skills Australia Needs event we staged in London, 28 Australian employers met 878 pre-screened skilled workers. As many as 500 overseas engineers and tradies will be sponsored to positions which employers were previously unable to fill through the Australian labour force.
Other recent events we’ve presented in Germany, Greece and Dubai have attracted interest from high quality engineering professionals, tradies, and healthcare professionals. Further promotional events are planned for the USA in May. Details will be provided shortly on the department’s website at: http://www.immi.gov.au/skillevents/upcoming-events.htm
You can read more by also visiting the SkillSelect website.
Protecting overseas workers from exploitation – update on sponsor monitoring activities
Australian workplace laws apply universally to all. In addition to these workplace protections, temporary overseas workers have an additional protective framework embodied in the Migration Legislation Amendment (Worker Protection) Act 2008 (the Worker Protection Act) sponsorship obligations.
The vast majority of sponsors are compliant; however, there is a comparatively small number of sponsors who inadvertently fail their sponsorship obligations, and even fewer who are recklessly unscrupulous.
In addition to sponsor monitoring officers, the Department of Immigration and Citizenship (DIAC) also has a highly trained, dedicated inspectorate of 38 officers who maintain a keen eye on sponsors of temporary overseas workers in order to protect them from exploitation. An inspector’s role is to gather information, investigate and assess matters relating to a sponsor’s compliance with their sponsorship obligations under the Worker Protection Act.
DIAC has commenced monitoring on 1398 sponsors; issued breach notices to 270; officially warned 188; and sanctioned 75, which means to 29 February this financial year, we have barred or cancelled sponsorship to a not insignificant number of employers doing the wrong thing.
In addition to administrative sanctions, we also have the power to serve infringements and take civil action; already in the last eight months we have issued 37 infringements to a value of more than $186 000, and filed two applications in the Federal Magistrates Court against sponsors for failing their obligations to their visa holders. Other cases are pending.
During the monitoring process, we also work collaboratively with other agencies. For example, if we uncover issues that fall within the responsibility of the Fair Work Ombudsman (FWO), we either collaborate with, or refer cases to their inspectors for full investigation to ensure compliance with workplace laws. DIAC and the FWO are also working together to help visa holders understand their legal rights when working in Australia. In December we jointly released a fact sheet about workplace rights, specifically for overseas temporary workers. It is available at http://www.immi.gov.au/skilled/skilled-workers/_pdf/457-your-rights-work.pdf
Proposed changes to Living Away From Home Allowance (LAFHA) benefits for Subclass 457 visa holders
In November 2011, the government announced reforms to the Fringe Benefits Tax (FBT) treatment of Living Away From Home Allowance (LAFHA) benefits to commence on 1 July 2012.
LAFHA is commonly used by employers to compensate employees for additional costs incurred when they are required to live and work away from their usual place of residence. This can include accommodation and food costs.
Under the current tax system, the provision of LAFHA can increase the take-home pay of employees, including subclass 457 visa holders. The Australian Government has concerns that LAFHA concessions are being exploited by some employers.
The Department of Immigration and Citizenship has received a number of enquiries about how these changes will impact subclass 457 visa holders.
From the department’s perspective, if an employer committed to pay a subclass 457 visa holder LAFHA, it is expected this payment will continue. The only difference will be how the Australian Taxation Office (ATO) views such payments.
For example, if a sponsor committed to pay a subclass 457 visa holder a base salary of $75 000 plus a $10 000 LAFHA, the department expects the employee will continue to be paid a total of $85 000.
If a sponsor is unable to pay the amount equivalent to the LAFHA they may be failing their sponsorship obligations.
A sponsor may decide to lodge a new nomination application to amend the salary offered to the 457 visa holder. However, the sponsor must demonstrate that the new salary continues to be the market salary rate.
Click here for further information on the Australian Tax Office’s LAFHA requirements.
