Global mobility is raising increasingly complex migration issues for employers to understand and comply with, according to Gordon Williams and Megan Arends, who say there are four key factors employers should consider in the management of foreign workers.
Global mobility is a natural side-effect of increasing globalisation, emerging markets and talent scarcity. The need for human resource specialists to effectively manage global talent will only intensify as organisations deal with issues such as global ageing populations and skill shortages.
While the topic can seem abstract, most employers within Australia are already grappling with issues of global mobility management and the compliance issues involved, even if they are not sponsors of Subclass 457 or Temporary Skills Shortage (TSS) work visa holders.
This is because of the ‘Employer Sanctions Provisions’ of the Migration Act, which make it an offence to ‘refer’ or ‘allow’ a non-citizen to work unlawfully or in breach of their visa conditions. Sanctions for breaches can be significant, including executive and director liability. The immigration space in Australia is also politically charged and can change quickly and dramatically, without notice. Organisations should therefore be future proofing their global mobility and immigration programs.
4 key global mobility considerations for HR
1. Be alert: visa status can change. As a first important step, employers must ensure their foreign workers hold valid visas with work rights. Failure to do so could result in the Australian employer facing sanctions and penalties such as warning notices, infringement notices and civil penalties, or even criminal penalties such as fines and imprisonment where they were knowingly or recklessly in breach. Executives can also be personally liable.
Employers have a positive obligation to take reasonable steps to ensure that they are not ‘allowing’ or ‘referring’ a person to work who is an unlawful non-citizen, or does not have appropriate work rights on their visa. This obligation is designed to apply regardless of whether the worker is engaged as a traditional employee, the work is paid or unpaid, or if the worker is hired directly or via a contractor or labour hire company. This means that not only are organisations potentially liable if they inadvertently hire someone without appropriate work rights, it also means they can be liable if they engage a worker through labour hire or sub-contracting arrangements who does not have appropriate work rights.
Most employers are across their obligations in relation to sponsored visa holders, but it is easy to overlook issues relating to holders of other visas such as provisional partner visas, working holiday visas and student visas. A (sadly) common example is provisional partner visa holders whose relationship has broken down – this may result in them losing their visa status. Unless their employer is vigilant and the employee notifies of this change of status, the employer may be inadvertently employing someone who does not have work rights in Australia, which leaves the employer exposed to liability under the Employer Sanctions Provisions.
“The immigration space in Australia is also politically charged and can change quickly and dramatically, without notice”
- Make sure you conduct the appropriate VEVO work rights check before hiring a foreign worker, and that you have appropriate processes in place to do regular follow-up checks if required. The VEVO check will provide information about the visa held, conditions attached to it, and expiry date.
- Review your employment contracts to ensure that:
- holding an appropriate visa with work rights is a condition of the employment; and
- the employee is obliged to notify you immediately if there is a change in visa status.
- Consider whether your organisation has an appropriate internal visa management policy in place. The contents of a policy would vary according to the business and its use of the visa programmes but could include processes and procedures for recruiting and checking the visa status of visa holders, as well as the obligations of visa-holders who are employees, the process for sponsoring an employee to work in Australia and other related matters.
- If you are engaging workers through labour hire or sub-contracting arrangements, ensure that you have a clause in the contract with the labour hire or contracting company providing clarity on who is liable for checking work rights of all workers on site.
2. Know your responsibilities: Associated corporate, tax and employment obligations. On 9 January 2019, the Federal Government announced that the Department of Home Affairs had commenced exchanging data with the Australian Taxation Office to encourage tax and immigration compliance by business sponsors and their temporary skilled visa holders.
This is a good reminder that visa sponsorship obligations cannot be viewed in isolation when it comes to global mobility.
Organisations need to be alert to the associated tax, corporate and employment obligations that arise when employing people on temporary visas. A recent example is the ATO levying a Medicare Levy Surcharge on a 457 visa holder covered by insufficient private health insurance – this was completely unexpected and has created an issue for both employer and employee. The situation was interesting as the insurance cover provided by the employer was sufficient for visa purposes but not broad enough to avoid the imposition of the Medicare Levy Surcharge. If your organisation makes private health insurance available to employees, you should check this carefully.
3. Get organised: think globally, act locally. Time and again we are approached by organisations who have vacancies that need to be urgently filled by foreign nationals because suitable workers cannot be found from within Australia. Of course, the foreign nationals cannot start work until they are granted an appropriate visa and the visa application process can takes months (particularly with the recent addition of mandatory ‘labour market testing’ to the sponsored visa process).
A proactive approach to global mobility and workforce planning can help considerably in minimising delays in filling roles and on-boarding staff, due to visa processing timeframes. HR specialists can act locally by thinking about resourcing needs in the mid to longer term so they are ready when the need arises to employ from the global labour market.
“HR specialists can act locally by thinking about resourcing needs in the mid to longer term so they are ready when the need arises to employ from the global labour market”
In particular, when hiring for a role, consider whether the form of advertising meets the TSS ‘labour market testing’ requirements. That way, if you cannot find a local hire, you can hire a foreign worker without additional advertising adding to the lead time.
4. Consider your options: Labour Agreement and Global Talent Scheme Streams. As many will be aware, the TSS programme now contains a more limited eligible occupation list. However, your organisation may still be able to access TSS visas for those occupations that have been removed.
The Labour Agreement and Global Talent Scheme (GTS) streams of the TSS enable industry groups and companies to negotiate individualised agreements under which employers can sponsor foreign workers to undertake skilled positions that cannot be filled from the domestic labour market or through other visa programs.
These schemes allow for genuine flexibility and are a great example of the Government responding to the global mobility needs of organisations. The GTS, in particular, is a direct response to globalisation and talent scarcity as it aims to attract highly skilled global talent to Australia – enabling the transfer of skills to Australian workers and the growth of Australian based businesses. There are a number of GTS agreements now in place – they are perfect for high level positions (with correspondingly high salaries above the Fair Work High Income Threshold) which do not fit comfortably into the ANZSCO occupation classification scheme and/or a permanent residence pathway is otherwise not available.
The GTS is currently a pilot scheme, and is technically available until 30 June 2019 and there is no certainty it will be extended. If you have any interest in finding out more about this scheme, we strongly recommend acting quickly to submit an application before the end of June.
Lessons in migration management and global mobility
- Take positive steps to monitor both employee visa status and the immigration landscape. The obligation is on employers to ensure foreign workers have valid visas – if you get it wrong, sanctions can be substantial.
- Immigration issues cannot be viewed in isolation – it’s important to also consider the associated tax, corporate and employment implications.
- Being proactive in your approach to workforce planning (including how you advertise roles) can minimise delays from visa processing timeframes.
- Get specialist advice on what options are available for sponsoring foreign workers and what visa streams may be right for your organisation.
Megan Arends is a special counsel and director of migration services with Minter Ellison.