Australian Greens Additional Comments

1.1The Australian Greens view the Migration Amendment (Strengthening Sponsorship and Nomination Processes) Bill 2024 (the bill) as a modest positive step forward to protect some of the most vulnerable workers in Australia. However, there are aspects of the bill that remain unclear and more needs to be done to protect people who come to Australia to contribute to the community.

Outline of the bill

1.2The bill would legislate new indexed income threshold requirements for employer sponsorship of skilled workers, establish three different streams for sponsorship and introduce a public register of approved sponsors.

1.3For too long, workers from other countries have been subjected to exploitation and denied rights by a visa sponsorship program that provides disproportionate power to employers. The bill goes some of the way to addressing this imbalance.

1.4However, further clarity is needed to ensure this legislation is both protecting the rights of workers and adhering to the findings of the Review of the Migration System (Migration Review).

Specialist Skills Pathway

1.5In its proposed form, the Specialist Skills Pathway does not wholly address all the concerns with the sponsorship visa program raised in the Migration Review and it does not deliver a skilled sponsorship program that properly responds to the domestic labour market.

1.6The Migration Review notes that employer-sponsored visas 'are too strongly driven by short-term employer interests rather than the national interest, which must take account of the evidence on all dimensions of the national labour market'.[1]

1.7Furthermore, the Migration Review also notes the need for clear definitions backed by data within the sponsorship program, stating that the 'definition of skills shortages will need to be settled for the data approach to be effectively designed'.[2]

1.8These issues are not fully addressed with the proposed Specialist Skills Pathway, which lacks a clear definition within the legislation and lacks responsiveness to labour market data.

1.9The intent of the Specialist Skills Pathway was outlined in the Migration Strategy as:

A pathway will be a new streamlined approach for highly skilled specialists, to ensure Australia can quickly and easily recruit top talent in areas of need… they help meet labour needs that exist at an individual firm level and assist companies in acquiring specialist knowledge, niche technologies or research expertise unavailable in Australia, and skillsets not picked up in occupational definitions [emphasis added].[3]

1.10While the explanation for the Specialist Skills Pathway focuses on 'niche' 'specialist' skills that fall outside of current definitions, the content of the bill does not reflect this.

1.11Instead, the proposed pathway only has a monetary threshold (of $135,000). While this threshold indicates well-paid roles, the threshold itself does not indicate 'specialist' skills.

1.12For the intent of the pathway to be addressed, there is a clear need to define what is meant by 'specialist'. One possible way would be to follow the advice of the Migration Review and ensure the pathway is for 'skillsets not picked up in occupational definitions'.

1.13This would also strengthen the clarity of the pathway for people who plan to bring specialist skills to Australia. Deloitte noted in its submission:

According to the Australia Bureau of Statistics whilst $135,000 is significantly higher than the average Australian salary, it is important to note that in some occupations and industries this is below the average salary. As such it is possible that if there are limited places in this pathway, and without understanding how those places would be allocated across the year and across industries, that the proposed SSIT may be too low.[4]

1.14This further highlights the inadequacies with a simple threshold being the only marker for the pathway. A clear definition of the Specialist Skills Pathway for occupations, as a pathway that sits outside of current definitions, would give greater clarity to applicants about what they are applying for. Doing this would also make clear that the threshold is a base, not a recommendation or ceiling.

1.15The unintended consequences of not having a clear definition for this pathway could mean that the oversight provided by Jobs and Skills Australia (JSA) over the Core Skills Pathway is circumvented. Clarifying the definition would prevent this and prevent the need for ad hoc carveouts for select occupations.

1.16Specify that the Specialist Skills Pathway only covers occupations that are not otherwise listed on the Core Skills Occupation list.

Essential Skills Pathway

1.17Like the Specialist Skills Pathway, there is a lack of clarity in exactly what the Essential Skills Pathway covers, this opens up the possibility of unintended consequences. The Explanatory Memorandum (EM) states:

[This Bill will make amendments to the Migration Act 1958 to] provide that the income threshold for an applicant with essential skills will be worked out in accordance with the Migration Regulations, unless the Minister has specified an amount in writing that an employer must pay in relation to the applicant.[5]

1.18This provides significant power to the minister with little independent oversight or input. This was a concern also raised by the Law Council of Australia:

The concept of 'essential skills' is referred to in the Explanatory Memorandum but not defined in the Bill. In that context, the proposed subsection 140GB(5) simply refers to 'different kinds of occupations [that] may be prescribed' by regulation.[6]

1.19As with the Specialist Skills Pathway, the lack of clarity on the definition of Essential Skills Pathway risks both misuse and confusion for applicants.

1.20The Essential Skills Pathway allowing for workers to be paid less than the Core Skills Threshold also comes with an inherent risk of placing downward pressure on wages.

1.21It is important to note that the Migration Strategy said that this pathway would be 'a more regulated pathway for lower paid workers with essential skills—in consultation with state and territory governments, unions, businesses and migrant workers'.[7] However, there is little in the legislation that ensures this. The Essential Skills Pathway must be the exception to the rule and cannot be used to bypass the existing threshold.

1.22These concerns were partly addressed by the Department of Home Affairs, which advised:

Development of an Essential Skills stream, the third stream of the Skills in Demand visa, is an area of future reform and consultation is ongoing. The Government will further evaluate how to develop a more regulated stream for lower paid workers with essential skills – in consultation with state and territory governments, unions, businesses and other relevant stakeholders.[8]

1.23However, it is concerning that such integral issues are not addressed in the legislation but are relegated to regulations.

1.24Finally, the Immigration Advice and Rights Centre (IARC) in its submission noted: 'Migrants in the Essential Skills Pathway are more vulnerable and liable to workplace exploitation because of these lower pay rates'.[9] Specifically, the IARC highlighted that agreements, such as the Aged Care Industry Labour Agreement, stipulate that migrants in this sector earn an annual salary of as little as $51,222.

1.25To counteract this precarity in the Essential Skills Pathway, IARC recommended the ability for workers to undertake secondary employment.

1.26Allow workers on the Essential Skills Pathway to apply for secondary employment.

1.27Jobs and Skills Australia to develop an Essential Skills Occupation List or clearly state the relationship between the Essential Skills Pathway and Core Skills Pathway.

Public register of approved sponsors

1.28The bill would also introduce a public register of approved sponsors. The register of approved standard business sponsors and accredited sponsors who have nominated skilled workers for entry to Australia will include the sponsor's business name, Australian Business Number, postcode, the number of individuals nominated under the sponsorship approval process and the occupations of the nominated workers. It would, quite appropriately, not identify any individual workers.

1.29This public register is a positive step in defending the rights of workers and transparency of the sponsorship visa system, as the EM makes clear it is designed to 'help temporary skilled migrant workers find a new sponsor and provide a public resource they can check to ensure that a sponsoring employer is legitimate'.[10]

1.30However, this register does not assist all temporary skilled migrant workers as numerous other visa classes are not included. The rationale for the register is sound and should be applied to all workers on a temporary visa in Australia.

1.31This position was articulated by the Australian Council of Trade Unions (ACTU) that noted:

The register proposed in this bill is an important step, but must be expanded to require approved employer sponsors to also disclose how many other temporary migrant workers they engage by visa type, and in which occupations and postcodes, to enable improved oversight. The public register must also be expanded to cover employers that engage other temporary migrant workers, requiring them to disclose the same information required of approved employer sponsors, by visa type, as a measure to improve transparency and address worker exploitation.[11]

1.32While the ACTU recommended the register be expanded to 'other temporary migrants', this expansion would need to be specific to avoid unintended consequences. For example, ensuring that temporary humanitarian visas such as the subclass 786 visa are not included in a public register for safety reasons.

1.33Expand the public register to include businesses that employ other temporary migrants on working visas to promote transparency and accountability, with the appropriate exclusions to ensure worker safety and privacy.

Labour market testing

1.34The Majority Report supports the increase in the period during which labour market testing (LMT) remains valid from four to six months.

1.35This statement runs counter to the Migration Review, which made clear that the LMT is 'an ineffective tool for identifying true labour market need' and recommends its removal.[12]

1.36Noting the positive change to allow JSA to have a greater involvement in the LMT, this alone does not address the fundamental issues identified in the Migration Review with employer-conducted LMT.

1.37Both the Electrical Trades Union of Australia (ETU) and ACTU concur with the Migration Review stating 'the current system of employer-conducted LMT is not fit for purpose'.[13] The ETU specifically highlighted:

Significantly, there is no requirement for employers to demonstrate that have attempted to attract local workers through improving conditions of employment (e.g. increasing wages) or putting in place requirements that employers employ apprentices as a condition of accessing skilled visa pathways.[14]

1.38The further weakening of the LMT by allowing it to be completed within 6months instead of 4 months prior to the sponsor of a skilled migrant worker lodging a nomination only exacerbates this issue.

1.39Remove proposed amendments extending the validity of LMT from 4 to 6 months.

Further concerns

1.40While the changes proposed in the bill are a positive first step in the protection of workers in Australia, it is not enough.

1.41Too many people who would bring their skills and knowledge to Australia are subjected to a rigged, exploitative and often dangerous system. While the scope of this bill focuses on employer sponsorship visas there are numerous other temporary working visas with significant issues that have not been addressed. One clear example of this is set out by Migration Solutions which stated in its submission that this bill will not assist 482 visa holders, working holiday visas or subclass 485 visas.[15]

1.42Nor does this bill address other ways people in Australia have their labour exploited due to the migration system. More needs to be done to ensure people are safe at work and their rights are respected. This is work the Greens are willing to undertake together with any other politician or party committed to restoring decency in Australia’s migration system.

Senator David Shoebridge

Member

Footnotes

[1]Department of Home Affairs (Home Affairs), Review of the Migration System: Final Report 2023 (Migration Review), March 2023, p. 73.

[2]Home Affairs, Migration Review, March 2023, p. 77.

[3]Home Affairs, Migration Strategy: Getting migration working for the nation (Migration Strategy), December 2023, p. 49.

[4]Deloitte, Submission 2, p. 2.

[5]Explanatory Memorandum (EM), p. 3.

[6]Law Council of Australia, Submission 19, p. 12.

[7]Home Affairs, Migration Strategy, December 2023, p. 51

[8]Home Affairs, Submission 10, p. 4.

[9]Immigration Advice and Rights Centre, Submission 8, p. 2.

[10]EM, p. 12.

[11]Australian Council of Trade Unions, Submission 11, p. 5.

[12]Home Affairs, Migration Review, March 2023, p. 76.

[13]Electrical Trades Union of Australia (ETU), Submission 6, p. 1.

[14]ETU, Submission 6, p. 2.

[15]Migration Solutions, Submission 17, p. 2.