There are calls for the temporary work visa program to be reformed to stop abuses by some employers.
By
Phillippa Carisbrooke

5 Nov 2012 - 7:52 AM  UPDATED 26 Aug 2013 - 10:48 AM

Over 93,000 overseas skilled workers are currently living and working in Australia on 457 temporary visas.

(Transcript from World News Australia Radio)

Many come with their families to enjoy the sunshine and relaxed lifestyle, with hopes of one day securing permanent residency.

But for some the 457 visa scheme results in exploitation.

Organisations that support workers are calling for the program to be reformed to put a stop abuses by some unscrupulous employers.

Twenty per cent more 457 visas were issued to overseas skilled workers in the first two months of this financial year compared to the same period a year ago.

The 457 visa scheme allows employers to sponsor qualified overseas workers to fill nominated positions for up to four-years, if the vacancy cannot be filled locally.

Increased demand for workers in the health care and social assistance industry, along with the construction sector, is currently driving-up the number of 457 visa applications.

Businesses that sponsor overseas workers have numerous obligations, many aimed at protecting the employee from exploitation.

For example, sponsors must show they are providing overseas workers with the same terms and conditions of employment as their Australian co-workers, and grant workplace inspectors access to payroll records and sponsored workers.

They must also ensure overseas workers are only employed in their nominated position.

'INSUFFICIENT COMPLIANCE CHECKS'

But Jobwatch, an employment rights legal centre in Victoria, says insufficient compliance checks mean some 457 sponsors are getting away with exploitation.

For Walter, an experienced restaurant manager from Italy, being granted a 457 visa marked the start of a stressful period in his professional life.

He was granted a visa on the basis he would be employed as a restaurant manager.

But his sponsor ultimately forced him to work in a less senior role, and threatened to have him deported if he did not do the 50-plus hours a week demanded of him.

"The job described was that I had to be the restaurant manager of that place. I had to make a roster, I had to deal with the suppliers, deal with the customers, like running the place actually. Instead after the first week he completely changed his mind. He doesn't give me the power to manage the place. Actually I was just a waiter, no more, no less."

At one point Walter was made to work three weeks without a day off.

He says he felt like a slave.

"It's even a little bit of my fault, because I don't really know how the law works in Australia. Instead he told me alot of fake things about oh if you don't follow me I can cancel your visa, I can kick you out from the country, when he couldn't."

Walter says he had nothing in writing from the Immigration Department to refer to when he found himself in urgent need of guidance.

Visits to the Immigration Department, and time spent scouring its website, did not help him fully understand his rights, or the obligations of his employer.

"The problem with the office it sometimes depends on the tellers. And for the same question the different tellers give you different answers. So this is a little bit confusing for me. The major part of the information I found out from other people like me with the same 457 visa. They have the same visa as me, the same problem as me. For me it was pretty difficult to go on the site and find information. Because it is not easy to find. I found a lot of information for the employer, not for me."

CALLS FOR TRAINING ON WORKPLACE RIGHTS

JobWatch warns that lack of understanding of workplace rights could lead to people being used as cheap and disposable labour.

Executive director Zana Bytheway says 457 visa holders should get some training on their workplace rights as soon as they arrive in Australia.

"Not only in English, but also I believe in their native language. And also where do they go in order to enquire? It's one thing to get some form of education, but it is only when you are in the process, and in the actual moment that you need to know where do you need to go for some assistance. And that's really important."

Immigration lawyer Emma Mackey says 457 sponsors are really struggling with their obligations.

She says the areas they most frequently fall-down in are meeting training requirements, notifying the Immigration Department of changes, and monitoring wages to ensure they track current Australian market rates.

"Larger organisations have dedicated people on staff who can manage their programs and their obligations and they are also much more reputationally focused than smaller organisations. So I think in the main large organisations are managing their obligations well. The medium sized organisations I see a difference in who within the organisation is responsible for the there is a company secretary or some person with a risk management focus is managing the program rather then some human resources of financial officer in the company. I think it is the small organisations that really struggle because they are the owner or managers wears lots of hats, and it is those organisations that need the most external assistance in meeting their sponsorship obligations."

Emma Mackey says the Immigration Department needs to make more information available to employers about their obligations via its website and seminars.

"I understand that is a big job given the size of the country. But these obligations are complex and employers do need assistance in coming to terms with what they need to do in administering the 457 visa program."

Jobwatch's Zana Bytheway fears some employers are using the 457 visa scheme to recruit what she calls "compliant labour", workers who will accept sub-standard conditions or under-payment because they hope one day to attain permanent residency.

"In 2009 there were some changes made with the view of preventing the exploitation. But I still think that we still have a long way to go. One of the first things that we really need to do is - I think the current monitoring and compliance system actually needs to be improved. Why employers are allowed to exploit workers in this way is because of this inadequate monitoring and compliance."

The Department of Immigration and Citizenship (DIAC) currently has 61 officers in sponsor monitoring roles, including 37 inspectors.

Where a sponsor is found to have breached its obligations it can be barred from the 457 program.

It may also be ordered by a court to pay a fine of up to $33,000 for each failure.

Earlier this year, DIAC for the first time took an employer to court for breaching its 457 sponsorship obligations.

The small business in Victoria was found to have failed to pay a migrant worker equivalent terms and conditions, and keep records of wages paid.

It was fined $35,000, and ordered to pay court costs of around $11,000.

However, the Construction, Forestry, Mining and Energy Union says the fact less than four per cent of sponsors received visits from inspectors last financial year demonstrates a lack of interest both in the department, and higher-up in the federal government, in checking that 457 workers are not being ripped-off.

'SLUGGISH RESPONSE'

National Construction Division Secretary Dave Noonan says the union has repeatedly raised with DIAC specific examples of 457 visa holder being exploited by their employers, but has seen a sluggish response.

"One experience that we had is that we made a complaint about a resources construction project where we had been advised that a number of workers from China were being paid less that the market rate, which they are entitled to. After several months of continually raising the matter with the department and indeed the relevant minister, DIAC finally sent an officer up to that site. The individual officer did not contact any of the people who were able to provide information that we provided. When he contacted the company we understand the workers were selected by the company as a sample of workers that the officer spoke to and the company provided an interpreter. In those circumstances there is no way that any worker is going to make a complaint. And it points to he fact that DIAC has been incompetent and unwilling to properly look after workers who are here on 457 and other temporary work visas."

Zana Bytheway from Jobwatch says unions can offer stressed out workers useful advice and invaluable support.

But she says often 457 visa holders do not belong to them.

"Often in terms of the calls that we receive the visa holder actually didn't know that they could join a union. Or alternatively where they have wanted to they have been told I suppose in no uncertain terms that that is not the path that they should take. So that is another level of protection that they have been denied."

The CFMEU's criticism of the 457 visa program has led some employers to suggest the union is xenophobic, or racist.

Dave Noonan rejects the claim.

"What's happened in Australia's immigration policy is that there has been a stealthy shift from the sort of permanent migration schemes which characterised the period after the Second World War to guest labour schemes which are only designed to suit employers. And we think Australia's migration scheme ought to act to benefit the interests of all Australian citizens and residents, not just the interests of a few employers."

457 workers who quit their jobs or lose them have 28-days to find an alternative sponsor and apply for another visa, or leave the country.

Zana Bytheway says this is not enough time.

"In that time they have to find a new sponsor employer who has to undertake all the steps of becoming a sponsor, that is time consuming and creates enormous amounts of pressure, and dare I say it is fairly unlikely. The 28-days is incredibly restricted. It should be extended. Some commentators have said that it should be extended to 3-months at least. My argument is that it should be even longer, to say 6-months."

Zana Bytheway also argues that the 28-day time limit should be suspended whenever a 457-visa holder has filed a claim against a former employer.

"Because if they have been unfairly dismissed or there has been a general protection claim then they are entitled, as we all are, to the full protection of the law."

The CFMEU is also in favour of extending the 28-day deadline.

But, immigration lawyer Emma Mackey is not.

"The difficulty might be if you are working in an area that is depressed in an economic sense, and that's the reason why you have lost your job then it may be difficult to find another employer in that time. But the 457 visa is only meant to be a temporary visa that is used to fill skills shortages and government policy is very clear on this that if you don't fall into one of those categories and you aren't going to make an application for permanent residency that that's a good time to be heading back to your home country."

For Chris, a 457 visa holder from Germany, life in Australia is everything he hoped it would be.

Cricket, rugby, the outdoor lifestyle.

But the 45-year-old, who works in the international transportation and logistics industry, says the conditions attached to his visa make him overly dependent on his employer for his life in Australia.

It's a situation he feels the company turns to its advantage.

"Well I have to be entirely grateful that they sponsored me for the visa, that they made it possible for me to come here. So I have very limited ways of being controversial or talking back because I know I am at their mercy. I cannot just go across the street and pick another employer. Well let me put it this way, if you walk through our office at 7:30 at night you will find four people there. And the four of us have one thing in common we are all on a visa. And we work probably the most hours in the building and that is not a co-incidence."

Like many migrants Chris worries about his family back home, and what he would do if a loved one suddenly fell sick.

While his instinct may be to drop everything and return home, a clause in his contract gives him cause to pause.

Quitting his job could leave him liable to pay tens-of-thousands of dollars to his employer.

"The company stipulates in the contract that they had certain expenses to bring me over here. So those expenses they would like to have back, or at least partially back, if I would for some reason leave the company within the first 36-months of my tenure here. So I am wondering if I get a phone call from my family in Germany to say my mother had a stroke or something, if I have to leave the company can technically ask for money to pay back the cost of coming here. So I have a feeling that the risk for me moving to Australia is not shared equally."

Lawyer Emma Mackey says having contributed to the cost of relocating a migrant, some 457 visa sponsors can be left feeling angry and frustrated when the worker quits, especially if it is to move to a new job.

She says some sponsors have told her they would like to see the scheme changed so workers who resign are required to leave the country.

"Having sponsored an employee and brought them from overseas, and invested time in training there is really no way that the employer can tie the employee to the sponsor. And so they might be in a position where they have invested significant money in bringing a worker to Australia and his or her family and getting them settled and then they resign and move to another sponsor and that employer is left with no way of recouping costs. So that is a significant issue under the present system for alot of employers."

Before packing-up their lives and moving to Australia, Emma Mackey says would-be migrants would do well to fully research what they are getting themselves into.

She warns they bear some of the responsibility if life in Australia does not live up to their expectations.

"I do find that surprising that you would be prepared to uproot yourself and your family and move some significant distance to a new country and yet not be prepared to make some investment in ascertaining if it is a good option for you. A registered migration agent is a very important part of any organisation involved in the visa process. And for individuals as well. You need to understand what can and can't be done. Because there is alot of talk among visa holders about what their friends did and how their friends did it. And often there are reasons why that would not work for you. And if you are not taking advice then you can end up as a visa holder very disappointed with the outcome you ultimately receive."